ATrain Education

 

Continuing Education for Health Professionals

IA: Abuse of Dependent Adults

Module 8

Evaluation Process and Records Management

This section covers jurisdiction over evaluation, management of information, and the role of law enforcement.

Jurisdiction over Evaluation

There are four types of jurisdiction over the formal evaluation/investigation of alleged dependent adult abuse cases. They include:

  • Department of Human Services (DHS). For abuse that occurs in the community, DHS is responsible to respond with an evaluation/assessment of the situation.
  • Department of Inspections and Appeals (DIA). For abuse that occurs in a facility or program (hospital, long-term care, assisted living, elder group home, adult day services, etc.), DIA is responsible for conducting an investigation.
  • Law Enforcement. When the abuse constitutes a crime, law enforcement must be notified and must conduct its own investigation.
  • Joint Investigations. Sometimes a situation may involve dependent adult abuse and a criminal offense. In those cases, parallel investigations are conducted by DHS or DIA, as appropriate, and the local law enforcement agency.

Evaluation Components

When DHS personnel undertake an evaluation they consider many factors. They must first determine that the alleged victim is at least 18 years of age and is dependent as a result of a physical or mental condition requiring the assistance of another. To determine dependence they will consider:

  • Is the person able to protect the person’s own interests?
  • Is the person at substantial risk of injury, harm, or being taken advantage of financially?
  • Is the person unable to perform adequately to meet minimal essential human needs?
  • Does the person require assistance with activities of daily living, such as eating, grooming, taking medication, walking, toileting, dressing, food preparation, grocery shopping, or money management?
  • Is the person able to obtain services necessary to meet essential human needs?

Physical factors

  • What health problems does the person have? (Include medical diagnosis if available)
  • Is the person able to complete activities of daily living (food preparation, bathing, toileting, eating, dressing) without assistance? If the person needs assistance, is it being provided?
  • Is the person able to communicate needs to others?
  • Can the person call for “help”? Is such “help” available if needed?
  • Is the person able to walk with or without the assistance of a walker, wheelchair, a care provider?
  • Does the existence of the person’s physical problems prevent the person from obtaining the services necessary to meet essential human needs?

Mental factors

  • Does the person have any mental problems? (Include diagnosis, if available.)
  • Is the person oriented to time, place, and person?
  • Is the person mentally capable of caring for the person’s own interests?
  • Is the person able to reason and make a conscious choice understanding the possible consequences?
  • Does the existence of mental health problems prevent the person from obtaining the services necessary to meet needs?

Social factors

  • Does the person have a support system?
  • Do any members of the support system help the person meet needs?
  • How frequently does the person come into contact with others?
  • Does the person live in an isolated environment, either self-imposed or due to physical or mental challenges?

Environmental factors

  • Is the person able to maintain the current environment? Cleaning, cooking, grocery shopping?
  • Is the person able to adequately care for self in the current environment?
  • Does the person need supervision to continue living in current environment?
  • Is the person living in a safe environment?
  • If the environment is hazardous, is the person able to move from that environment?

Financial factors

  • Is the person able to handle his/her own finances?
  • Is someone assisting the person in taking care of finances? (Guardian, conservator, payee, friend, family, etc.)
  • Is the person able to manage personal, home, and financial affairs in own best interest?

DHS will also determine if the alleged abuser is in fact a “caretaker”—a related or unrelated person who has the responsibility for the protection, care, or custody of the dependent adult as a result of:

  • Assuming the responsibility voluntarily
  • A contract
  • Employment
  • An order of the court

If the alleged abuser is the dependent adult, as in a case of self denial of care, then DHS will consider:

  • If the dependent adult is at substantial risk of injury or harm by failing to adequately meet minimal essential human needs in the following areas: food, shelter, medical care, money management, or mental health care
  • If a significant incident occurred that brought inadequacies to the attention of the reporter, or if there is a pattern of the dependent adult being responsible for self-denial of care

 

Did You Know . . .

A dependent adult has the right to make unhealthy choices, as long as they are not health- or life-threatening.

 

Report Outcomes

There are three possible outcomes from evaluation of a report alleging dependent adult abuse:

  • Founded: Requires a preponderance of evidence (51% or greater) that abuse has occurred. Founded reports remain on the Central Abuse Registry for 10 years from the date of the last founded report.
  • Unfounded: Requires a preponderance of evidence (51% or greater) that abuse has not occurred.
  • Confirmed, not registered:
    • Under 235B (DHS) When physical abuse or denial of critical care by a caretaker is determined to be minor, isolated and unlikely to recur, the report is maintained as an assessment only for five years and then destroyed, unless a subsequent report is founded in the interim. If the subsequent report involves physical abuse or denial of critical care by the same caretaker in the original report, then the abuse shall not be considered minor, isolated, and unlikely to reoccur.
    • Under 235E (DIA) and IAC 481-52.3(3)(a) & (b) Reports of Abuse that is minor, isolated, and unlikely to reoccur.
      1. Minor, isolated, and unlikely to reoccur—first instance. A report of dependent adult abuse that meets the definition of physical abuse assault, unreasonable confinement, unreasonable punishment, or neglect of a dependent adult which the department determines is minor, isolated, and unlikely to reoccur shall be collected and maintained by the department of human services for a five-year period, shall not be included in the central registry and shall not be considered to be founded dependent adult abuse.
      2. Minor, isolated, and unlikely to reoccur—subsequent instance(s). A subsequent report of dependent adult abuse that meets the definition of physical abuse, assault, unreasonable confinement, unreasonable punishment, or neglect of a dependent adult that occurs within the five year period, and that is committed by the same caretaker may also be considered minor, isolated, and unlikely to reoccur depending on the totality of circumstances.

In 2016, 7167 reports of suspected dependent adult abuse were reported to DHS for evaluation/assessment. Of those, 2266 (32%) were accepted for evaluation by a social worker and about 81% of those were determined to be unfounded. The most common types of abuse reported were denial of critical care (neglect), denial of critical care (self), and exploitation (financial) (IDHS, 2017, 2016).

Reports of suspected abuse are rejected by DHS for evaluation or assessment for the following reasons:

  • The person named in the report is not a dependent adult.
  • The alleged perpetrator is not a caretaker.
  • The allegations do not constitute abuse.
  • The information provided is insufficient to suspect abuse.
  • The information duplicates or adds to a previous report.
  • The report was referred to the Department of Inspections and Appeals.

Appeals of Abuse Reports

Under 235B (DHS)

Any subject of a dependent adult abuse report, except a nurse aide, who believes there is incorrect information in the evaluation or assessment report, or who disagrees with the conclusions of the report, may request correction of the report. Subjects of a report are the:

  • Dependent adult
  • Dependent adult’s guardian or attorney
  • Individual responsible for the abuse
  • Attorney for the individual responsible for the abuse

A nurse aide who is the subject of a report may request a hearing within 30 days from the date of the notice of the finding (IAC441–81.16(6)).

Under 235E (DIA)

If a request for an appeal is filed by a caretaker within fifteen (15) days of the issuance of the notice of a founded determination of dependent adult abuse, DIA shall not place the caretaker on the central abuse registry until final agency action is taken.

If a caretaker fails to request an appeal of a founded determination within fifteen (15) days, the caretaker shall have sixty (60) days from the issuance of the written notification of the abuse findings to file an appeal pursuant to chapter 17A.

Under 235E, appeals of determinations other than founded, 235B.10 applies.

An appeal is made by filing a written statement to the effect that the information referring to the person is in whole or in part erroneous. This must be done within six months of the date of the notice of the results of the evaluation, and must be submitted to the DHS Appeals Section, 1305 E Walnut Street, 5th Floor, Des Moines IA 50319-0114.

Management of Information

Iowa Code 235B.6 provides for the maintenance of confidentiality of information on dependent adult abuse, except as specifically authorized. DHS must withhold the name of the reporter of suspected dependent adult abuse. Only the court or the Central Abuse Registry may allow release of the reporter’s name.

Retention of Records

Information on all founded reports (whether evaluated by DHS or DIA) is maintained on the Central Abuse Registry for 10 years and then sealed. Exception: When the dependent adult is responsible for self-denial of critical care, DHS keeps the report in the local office, not on the Central Registry. These are called “assessments” rather than “evaluations.”

Information on DHS-evaluated reports that are confirmed, not registered is maintained in the local office for 5 years and then destroyed, unless a subsequent report is founded. If there is a subsequent report committed by the same caretaker within 5 years, the original report will be kept in the local office and sealed 10 years after the subsequent report.

Information on unfounded reports is destroyed 5 years from the date they were unfounded.

Reports that are rejected for evaluation or assessment are kept in the local office for 3 years and then expunged.

Access to Information

Access to “founded” or “unfounded” dependent adult abuse information is authorized to:

  • “Subjects” of a report (the adult victim, the guardian or legal custodian of the adult victim, and the alleged perpetrator) or the attorney for any subject
  • An employee or agent of DHS responsible for investigating an abuse report
  • DHS personnel as necessary for the performance of their official duties
  • The mandatory reporter who reported the abuse
  • The long-term care resident’s advocate
  • Multidisciplinary teams

In addition, founded reports may be authorized to additional personnel, such as people involved in an investigation, people providing care to the dependent adult, judicial and administrative proceedings, bona fide researchers, DHS personnel, and others.

To request dependent adult abuse information, complete a Request for Dependent Adult Abuse Registry Information (Form 470-0612). Send form to the local DHS office or to the Central Abuse Registry at: DHS Central Abuse Registry, 1305 E. Walnut Street, 5th Floor, Des Moines, IA 50319-0114.

Background Checks on Employees

All facilities and agencies that provide care to dependent adults must complete criminal and abuse background checks on prospective employees (IC 135C.33). If the applicant has either a criminal or abuse background, the employer may request a Record Check Evaluation be completed by the Department of Human Services, to determine if the person may be employed even though there is the criminal or abuse background.

When evaluating criminal or abuse backgrounds to determine employability, DHS considers the following:

  • The nature and seriousness of the crime or founded abuse in relation to the position sought or held
  • The time elapsed since the commission of the crime or founded abuse
  • The circumstances under which the crime or founded abuse was committed
  • The degree of rehabilitation
  • The likelihood the person will commit the crime or founded abuse again
  • The number of crimes or founded abuses committed by the person involved

Role of Law Enforcement

In addition to the oral report a mandatory reporter must make to DHS or DIA, if they have “reason to believe that immediate protection for the dependent adult is advisable, that person shall also make an oral report to an appropriate law enforcement agency” [IAC 441–176.5(2) and 481–52.2(2)(e)].

For law enforcement, jurisdiction is determined by the location of the alleged act(s) of abuse and dictates which agency is responsible for the primary investigation, and will also determine where a case will be prosecuted. When an investigation is initiated, the county attorney’s office is also notified. Law enforcement will be responsible for taking any actions necessary to protect the dependent adult from further immediate harm and provide notification of rights as appropriate.

Dependent adult abuse is a crime. The potential charges for the forms of abuse previously discussed cover various degrees of misdemeanors and felonies and reflect a range of prison terms from 2 to 50 years and fines as specified in law up to $10,000. In addition, Chapter 726 of the Iowa Code, which addresses Protection of the Family and Dependent People, defines “wanton neglect of a resident of a health care facility” (726.7) and “wanton neglect or nonsupport of a dependent adult” (726.8) due to knowing acts likely to be injurious; both are serious misdemeanors.

Even if the crime does not fit the three criteria required for dependent adult abuse, the perpetrator may be charged with a different crime. For example, if perpetrators are not a caretaker, they cannot be charge with financial exploitation, but their actions may fall under theft or extortion as defined in Iowa criminal code. Other charges that may be relevant include manslaughter, assault, sexual abuse, indecent exposure, robbery, forgery, and others.

Prevention of Additional Abuse—Notification of Rights

If a peace officer has reason to believe that dependent adult abuse, which is criminal in nature, has occurred, the officer shall use all reasonable means to prevent further abuse, including but not limited to any of the following (IC 235B.3A):

  1. If requested, remaining on the scene as long as there is a danger to the dependent adult’s physical safety without the presence of a peace officer.
  2. Assisting the dependent adult in obtaining medical treatment necessitated by the dependent adult abuse.
  3. Providing a dependent adult with immediate and adequate notice of the dependent adult’s rights…[to] ask the court for…help on a temporary basis…[for] keeping the alleged perpetrator away from you…[to] stay at your home without interference from the alleged perpetrator…[to] professional counseling…[for assistance getting to] medical treatment…[and] that the peace officer present remain at the scene until you and other affected parties can leave or safety is otherwise ensured.

The notice of rights must include telephone numbers for local emergency shelter services, support services, and crisis lines operating in the area.

Note: A perpetrator’s action or inaction may still be considered a crime if all elements of dependent adult abuse cannot met or proven. For example financial exploitation may not met the definition of dependent adult abuse if the perpetrator was not a caretaker; however, it may fall under theft or extortion in the criminal code. Other recourse may be available.

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