PURPOSE: This rule prescribes procedures for reporting and investigating complaints of abuse and neglect in a residential facility, day program or specialized service that is licensed, certified or funded by the department as required by sections 630.135, 630.168, 630.655 and 630.710, RSMo. The rule also sets forth due process procedures for persons who have been accused of abuse, neglect and misuse of client funds/property.

1. (1) The following words and terms, as used in this rule, mean:

   1. (A) Class I neglect, failure of an employee to provide reasonable and necessary services to maintain the physical and mental health of any client or resident when that failure presents either imminent danger to the health, safety or welfare of a client or resident, or a substantial probability that death or physical injury would result;
   2. (B) Class II neglect, failure of an employee to provide reasonable or necessary services to a client or resident according to the individualized treatment or habilitation plan, if feasible, or according to acceptable standards of care;
   3. (C) Misuse of client funds/property, the misappropriation or conversion of a client’s or resident’s funds or property for another person’s benefit;

   4. (D) Physical abuse—

      1. 1. Purposefully beating, striking,

wounding or injuring any client or resident; or

1. 2. In any manner whatsoever mistreating

or maltreating a client or resident in a brutal or inhumane manner. Physical abuse includes handling a client or resident with any more force than is reasonable or apparently necessary for a client’s or resident’s proper control, treatment or management;

1. (E) Sexual abuse, any touching, directly or through clothing, of the genitals, buttocks or breasts of a client or resident for sexual purpose. Sexual purpose means for the arousing or gratifying of anyone’s sexual desires. This definition includes—

   1. 1. Causing a resident or client to touch

the employee for sexual purposes;

1. 2. Promoting or observing for sexual

purpose any activity or performance involving clients or residents including any play, motion picture, photography, dance, or other visual or written representation; or

1. 3. Failing to stop or prevent inappropri-

ate sexual activity or performance between clients or residents; and

1. (F) Verbal abuse, referring to a client or resident in the client’s or resident’s presence with profanity or in a demeaning, nontherapeutic, undignified, threatening or derogatory manner.

1. (2) This section applies to any employee, resident or client of any residential facility, day program or specialized service, as defined under section 630.005, RSMo. Facilities, programs and services that are operated by the Department of Mental Health are regulat- 9 CSR 10-5

ed by the department’s operating regulations and are not included in this definition.

1. (A) Any such employee who has reasonable cause to believe that a resident or client has been subjected to physical abuse, sexual abuse, Class I neglect, Class II neglect or verbal abuse while under the care of a residential facility, day program or specialized service that is licensed, certified or funded by the department shall immediately make a verbal or written complaint.
2. (B) A complaint under subsection (A) above shall be made to the head of the facility, day program or specialized service, and to the department’s regional center, supported community living placement office or regional administrator office.

3. (C) The head of the facility, day program or specialized service shall forward the complaint to—

   1. 1. The Division of Family Services if

the alleged victim is under the age of eighteen (18); or

1. 2. The Division of Aging if the alleged

victim is a resident or client of a facility licensed by the Division of Aging or receiving services from an entity under contract with the Division of Aging.

1. (D) Failure to report shall be cause for disciplinary action, criminal prosecution, or both.

1. (3) The head of the facility, day program or specialized service that is licensed, certified or funded by the department shall immediately report to the local law enforcement official any alleged or suspected—

   1. (A) Sexual abuse; or
   2. (B) Abuse or neglect which results in physical injury.
2. (4) If a complaint has been made under this rule, the head of the facility or program and all employees of the facility, program or service shall fully cooperate with law enforcement authorities and with department employees or employees from other agencies authorized to investigate the complaint. Failure to cooperate may result in contract termination or dismissal of the employee.
3. (5) A board of inquiry, local investigator assigned by the division, or the department’s central investigative unit shall gather facts and conduct an investigation regarding the alleged abuse or neglect. The investigation shall be conducted in accordance with the procedures and time frames established under the department’s operating regulations. Upon completion of its investigation, the board of inquiry, local investigator or central investigative unit shall present its written findings of facts to the head of the supervising facility.

4. (6) Within ten (10) calendar days of receiving the final report from the board of inquiry, local investigator or central investigative unit, the head of the supervising facility or department designee shall send to the provider and alleged perpetrator a summary of the allegations and findings which are the basis for the alleged abuse/neglect. The summary shall comply with the constraints regarding confidentiality contained in section 630.167, RSMo and shall be sent by certified mail.

   1. (A) The provider and/or alleged perpetrator may meet with the head of the supervising facility or department designee, submit comments or present evidence. If the provider or alleged perpetrator wishes to have this meeting, s/he must notify the head of the supervising facility or department designee within ten (10) calendar days of receiving the summary.
   2. (B) This meeting shall take place within ten (10) calendar days of notification, unless the parties mutually agree upon an extension.
   3. (C) Within ten (10) calendar days of the meeting, the head of the supervising facility or department designee shall sustain or deny the allegations as to whether abuse/neglect took place. The provider and perpetrator shall be notified of this decision by certified mail.
   4. (D) The letter shall advise the provider and perpetrator that they have ten (10) calendar days to contact the department’s hearing officer if they wish to appeal a finding of abuse or neglect.
   5. (E) If there is no appeal, the decision of the head of the supervising facility or department designee shall be the final decision of the department.
5. (7) If an appeal is requested, the hearing officer shall schedule the hearing to take place within thirty (30) calendar days of the request, but may delay the hearing for good cause shown. At the hearing, the head of the supervising facility or designee, or other department designee shall present evidence supporting its findings of abuse, neglect, or both. The provider or perpetrator may submit comments or present evidence to show why the decision of the head of the supervising facility or department designee should be modified or overruled. The hearing officer may obtain additional information from department employees as s/he deems necessary.
6. (8) The decision of the hearing officer shall be the final decision of the department. The hearing officer shall notify the provider, perpetrator, and the head of the supervising facility or department designee by certified mail of the decision within fourteen (14) calendar days of the appeal hearing.
7. (9) The opportunities described in sections (6), (7) and (8) of this rule regarding a meeting with the head of the supervising facility and an appeal before the department’s hearing officer apply also to providers and alleged perpetrators in an investigation of misuse of client funds/property.
8. (10) A provider or alleged perpetrator does not forfeit his/her right to an appeal with the department’s hearing officer when s/he declines to meet with the head of the supervising facility under subsections (6)(A) and
9. (B) of this rule.
10. (11) If the department substantiates that a person has perpetrated physical abuse, sexual abuse, Class I neglect, or conversion of client’s property and/or funds for his/her own use or the facility’s use, the perpetrator shall not be licensed, employed nor provide services by contract or agreement at a residential facility, day program or specialized service that is licensed, certified or funded by the department.
11. (12) If the department substantiates that a person has perpetrated verbal abuse or Class II neglect two (2) or more times in a twelve (12)-month period, the perpetrator shall not be licensed, employed, or provide services by contract or agreement at a residential facility, day program or specialized service that is licensed, certified or funded by the department.
12. (13) In accordance with 9 CSR 10-5.190, no person convicted of specified crimes may serve in facilities or programs licensed, certified or funded by the department.

AUTHORITY: sections 630.050, 630.165, 630.167, 630.168 and 630.170, RSMo Supp. 1997 and 630.135, 630.655 and 630.705, RSMo 1994.* Original rule filed Oct. 29, 1998, effective May 30, 1999.

*Original authority: 630.050, RSMo 1980, amended 1993, 1995; 630.165, RSMo 1980, amended 1996; 630.167, RSMo 1980, amended 1985, 1990, 1993, 1996, 1998; 630.168, RSMo 1980, amended 1987, 1996; 630.170, RSMo 1980, amended 1982, 1996, 1998, 630.135, RSMo 1980; 630.655, RSMo 1980; and 630.705, RSMo 1980, amended 1982, 1984, 1985, 1990.