PURPOSE: This rule prescribes procedures for reporting and investigating complaints of abuse, neglect and misuse of funds/property in a residential facility, day program or specialized service that is licensed, certified or funded by the Department of Mental Health (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 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 consumer when that failure presents either imminent danger to the health, safety or welfare of a consumer, 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 consumer according to the individualized treatment or habilitation plan, if feasible, or according to acceptable standards of care. This includes action or behavior which may cause psychological harm to a consumer due to intimidating, causing fear or otherwise creating undue anxiety;
   3. (C) Consumer, individual (client, resident, patient) receiving services directly from any program or facility contracted, licensed, certified or funded by the department;
   4. (D) Misuse of funds/property, the misappropriation or conversion of a consumer’s funds or property by an employee for another person’s benefit;

   5. (E) Physical abuse—

      1. 1. An employee purposefully beating,

striking, wounding or injuring any consumer; or

1. 2. In any manner whatsoever, an

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

1. (F) Sexual abuse, any touching, directly or through clothing, of a consumer by an employee for sexual purpose or in a sexual manner. This includes but is not limited to:

   1. 1. Kissing;
   2. 2. Touching of the genitals, buttocks or

breasts;

1. 3. Causing a consumer to touch the

employee for sexual purposes;

1. 4. Promoting or observing for sexual

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

1. 5. Failing to intervene or attempt to stop

or prevent inappropriate sexual activity or performance between consumers; and 9 CSR 10-5

1. (G) Verbal abuse, an employee using profanity or speaking in a demeaning, nontherapeutic, undignified, threatening or derogatory manner to a consumer.

1. (2) This section applies to any employee or consumer 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 are regulated 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 consumer has been subjected to physical abuse, sexual abuse, misuse of funds/property, 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 Senior Services if the

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

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; or
   3. (C) Abuse, neglect or misuse of funds/ property which may result in a criminal charge.
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) working days of receiving the final report from the board of inquiry, local investigator or central investigative unit, if there is a preliminary determination of abuse, neglect or misuse of funds/property, the head of the supervising facility or department designee shall send to the alleged perpetrator a summary of the allegations and findings which are the basis for the alleged abuse/neglect/misuse of funds or property; the provider will be copied. The summary shall comply with the constraints regarding confidentiality contained in section 630.167, RSMo and shall be sent by regular and certified mail.

   1. (A) The alleged perpetrator may meet with the head of the supervising facility or department designee, submit comments or present evidence; the provider may be present and present comments or evidence in support of the alleged perpetrator. If the alleged perpetrator wishes to have this meeting, s/he must notify the head of the supervising facility or department designee within ten (10) working days of receiving the summary.
   2. (B) This meeting shall take place within ten (10) working days of notification, unless the parties mutually agree upon an extension.
   3. (C) Within ten (10) working days of the meeting, or if no request for a meeting is received within ten (10) working days of the alleged perpetrator’s receipt of the summary, the head of the supervising facility or department designee shall make a final determination as to whether abuse/neglect/misuse of funds or property took place. The perpetrator shall be notified of this decision by regular and certified mail; the provider will be copied.
   4. (D) The letter shall advise the perpetrator that they have ten (10) working days following receipt of the letter to contact the department’s hearings administrator if they wish to appeal a finding of abuse, neglect or misuse of funds/property.
   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.
   6. (F) The department’s effort to notify the alleged perpetrator at his/her last known address by regular and certified mail shall serve as proper notice. The alleged perpetrator’s refusal to receive certified mail does not limit the department’s ability to make a final determination.
5. (7) If an appeal is requested, the hearings administrator shall schedule the hearing to take place within thirty (30) working 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, misuse of funds/property, or all. 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 hearings administrator may obtain additional information from department employees as s/he deems necessary.
6. (8) The decision of the hearings administrator shall be the final decision of the department. The hearings administrator shall notify the perpetrator, and the head of the supervising facility or department designee by certified mail of the decision within fourteen (14) working days of the appeal hearing; the provider will be copied.
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 hearings administrator apply also to providers and alleged perpetrators in an investigation of misuse of funds/property.
8. (10) An alleged perpetrator does not forfeit his/her right to an appeal with the department’s hearings administrator 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 misuse of funds/property, the perpetrator shall not be employed by the department, nor 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. The perpetrator’s name shall be placed on the department Disqualification Registry pursuant to section 630.170, RSMo. Persons who have been disqualified from employment may request an exception by using the procedures described in 9 CSR 10-5.210 Exception Committee Procedures.
11. (12) If the department substantiates that a person has perpetrated two (2) counts of verbal abuse, or two (2) counts of class II neglect, or one (1) count of verbal abuse and one (1) count of class II neglect, within a twelve (12)-month period, the perpetrator shall not be employed by the department, nor 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. The perpetrator’s name shall be placed on the department Disqualification Registry pursuant to section 630.170, RSMo.
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.
13. (14) No director, supervisor or employee of a residential facility, day program or specialized service shall evict, harass, dismiss or retaliate against a consumer or employee because he or she or any member of his or her family has made a report of any violation or suspected violation of consumer abuse, neglect or misuse of funds/property. Penalties for retaliation may be imposed up to and including cancellation of agency contracts and/or dismissal of such person.

AUTHORITY: sections 630.050, 630.135, 630.165, 630.167, 630.168, 630.655 and 630.705, RSMo 2000 and 630.170, RSMo Supp. 2003. Original rule filed Oct. 29, 1998, effective May 30, 1999. Emergency amendment filed March 29, 2002, effective May 2, 2002, terminated Oct. 30, 2002. Amended: Filed March 29, 2002, effective Oct. 30, 2002. Amended: Filed May 5, 2003, effective Dec. 30, 2003.

*Original authority: 630.050, RSMo 1980, amended 1993, 1995; 630.135, RSMo 1980; 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, 2001; 630.655, RSMo 1980; and 630.705, RSMo 1980, amended 1982, 1984, 1985, 1990, 2000.