Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 13B, 61.872, 194A.010, 202A.051,
202B.100, Chapter 209, 387.540(1),
42 U.S.C.
1397
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.050(1) requires the
secretary to adopt all administrative regulations necessary under applicable
state laws to protect, develop, and maintain the health, personal dignity,
integrity, and sufficiency of the individual citizens of the commonwealth and
necessary to operate the programs and fulfill the responsibilities vested in
the cabinet. KRS
209.030(1) authorizes the
secretary to promulgate administrative regulations necessary for the
implementation of adult protective services. This administrative regulation
establishes the procedures for investigation and protection of adults who are
suffering or at risk of abuse, neglect, or exploitation.
Section 1. Definitions.
(1) "Abuse" is defined by
KRS
209.020(8).
(2) "Adult" is defined by
KRS
209.020(4).
(3) "Authorized agency" is defined by
KRS
209.020(17).
(4) "Caretaker" is defined by
KRS
209.020(6).
(5) "Emergency" is defined by
KRS
209.020(11).
(6) "Employee" is defined by
KRS
209.032(1)(a).
(7) "Exploitation" is defined by
KRS
209.020(9).
(8) "Investigation" is defined by
KRS
209.020(10).
(9) "Mental injury" means a negative impact
on the emotional or psychological state of the adult that is inconsistent with
an individual's medical care and:
(a) Requires
medical or therapeutic treatment;
(b) Is manifested by a behavioral change;
or
(c) Caused the person to feel
fear, distress, humiliation, or ridicule.
(10) "Neglect" is defined by
KRS
209.020(16).
(11) "Protective services" is defined by
KRS
209.020(5).
(12) "Records" is defined by
KRS
209.020(15).
(13) "Unreasonable confinement" means the
unnecessary restriction of an adult's movement through physical or chemical
restraints or the unnecessary isolation of an individual.
(14) "Validated substantiated finding of
adult abuse, neglect, or exploitation" is defined by
KRS
209.032(1)(b).
Section 2. Receiving a Report of
Adult Abuse, Neglect, or Exploitation.
(1) An
individual suspecting that an adult has suffered abuse, neglect, or
exploitation shall:
(a) Report to the cabinet
in accordance with KRS 209.030(2) and
(3); and
(b) Provide the information specified in
KRS
209.030(4).
(2) The identity of the reporting
individual shall remain confidential in accordance with
KRS
209.140.
(3) The cabinet shall make available a
twenty-four (24) hour on-call response system for emergency reporting after
normal office hours.
(4) The
cabinet shall investigate an anonymous report that provides sufficient
information regarding the alleged abuse, neglect, or exploitation of an
adult.
(5) If a report does not
meet criteria for investigation, the cabinet may refer the reporting source to:
(a) Community resources;
(b) General adult services in accordance with
922 KAR 5:090; or
(c) A domestic violence protective services
provider.
(6) Upon
accepting a report for investigation of alleged adult abuse, neglect, or
exploitation, the cabinet shall:
(a) Conduct
an initial assessment and initiate an investigation in accordance with
KRS
209.030(5); and
(b) Take into consideration the safety of the
adult when proceeding with the actions necessary to initiate an
investigation.
(7) The
cabinet shall initiate an investigation upon acceptance of a report of:
(a) Abuse if the report alleges an adult:
1. Being hit in a critical area of the body,
such as the head, face, neck, genitals, abdomen, or kidney areas;
2. Has an injury that:
a. Was inflicted by another person;
or
b. Is of unknown origin in a
critical area of the body;
3. Was sexually abused;
4. Was subjected to unreasonable
confinement;
5. Was subjected to
intimidation; or
6. Received a
punishment that resulted in pain, injury, or mental injury;
(b) Neglect of an adult that may
result in harm to the health and safety of the adult in the following areas:
1. Hygiene neglect, if the adult has physical
symptoms that require treatment due to poor care as a result of:
a. An act or omission by a caretaker;
or
b. The absence of a
caretaker;
2.
Supervision neglect, if the reporting source has observed a physical health and
safety risk to an adult resulting from a lack of necessary and appropriate
supervision;
3. Food neglect, if an
adult shows symptoms of:
a.
Malnutrition;
b.
Dehydration;
c. Food poisoning;
or
d. Lack of adequate food for a
period of time that:
(i) Results in physical
symptoms; or
(ii) Requires
treatment;
4.
Environmental neglect, if a serious health and safety hazard is present, and
the adult or the adult's caretaker is not taking appropriate action to
eliminate the problem; or
5.
Medical neglect, if the adult is not receiving treatment for an injury,
illness, or disability that:
a. Results in an
observable decline in the adult's health and welfare;
b. May be life threatening; or
c. May result in permanent
impairment;
(c) Exploitation of an adult if the report
alleges:
1. Isolation from friends,
relatives, or important information, such as:
a. Screening telephone calls;
b. Denying visitors; or
c. Intercepting mail;
2. Physical or emotional
dependency;
3.
Manipulation;
4. Acquiescence;
and
5. Loss of resources to a
person in a position of trust to the alleged victim; or
(d) An adult in need of protective
services.
(8) If a report
alleging the exploitation of an adult does not meet criteria established in
subsection (7)(c) of this section, the report may be referred to an appropriate
authorized agency or community resource.
(9) The following criteria shall be used in
identifying a report of alleged adult abuse, neglect, or exploitation not
requiring an adult protective service investigation:
(a) The report does not meet the statutory
definitions of:
1. Adult; and
2.
a.
Abuse;
b. Neglect; or
c. Exploitation; or
(b) There is insufficient
information to:
1. Identify or locate the
adult; or
2. Explore leads to
identify or locate the adult.
(10) For a report accepted for investigation
of alleged adult abuse, neglect, or exploitation, designated regional cabinet
staff shall provide the information specified in
KRS
209.030(4):
(a) For a determination of investigation
assignment by cabinet supervisory staff;
(b) To the local guardianship office, if the
adult is a state guardianship client; and
(c) To appropriate authorized agencies, as
specified in KRS
209.030(5).
Section 3. Adult
Protective Service Investigations.
(1) The
cabinet shall coordinate its investigation in accordance with
KRS
209.030(6).
(2) An adult protective service investigation
may include contact with the alleged perpetrator and collaterals, if the
contact does not pose a safety concern for the adult or cabinet
staff.
(3) Information obtained as
a result of a protective service investigation shall be kept confidential in
accordance with KRS
209.140.
(4) Requests for written information of the
protective service investigation, except for court ordered releases, shall be
handled through the open records process in accordance with
KRS
61.872 and
922 KAR 1:510.
(5) Designated regional cabinet staff shall
initiate the investigation of a report of alleged adult abuse, neglect, or
exploitation. If the accepted report of alleged adult abuse, neglect, or
exploitation with the expressed permission of the adult indicates:
(a) An emergency, the investigation shall be
initiated within four (4) hours; or
(b) A nonemergency, the investigation shall
be initiated within forty-eight (48) hours.
(6) If permission is granted by the adult,
designated regional cabinet staff may take photographs, audio, or video
recordings.
(7)
(a) The cabinet shall obtain a written
voluntary statement of adult abuse, neglect, or exploitation if the adult,
witness, or alleged perpetrator is willing to provide the written statement;
and
(b) The cabinet shall inform
the adult, witness, or alleged perpetrator that the:
1. Statement may be shared with appropriate
authorized agencies;
2. Statement
may be used in an administrative hearing conducted by the cabinet;
and
3. Individual may be required
to testify in an administrative hearing or in a court of law.
(8) If investigating
reports of alleged abuse or neglect of an adult resulting in death, designated
regional cabinet staff shall:
(a) Examine the
coroner's or doctor's report;
(b)
Obtain a copy of the death certificate for the case record, if
possible;
(c) Notify the
commissioner or designee;
(d)
Consult with appropriate law enforcement, in accordance with
KRS
209.030(6)(a) in completing
the investigation, if an adult died allegedly as a result of abuse or neglect;
and
(e) Determine if another
resident in an alternate care facility is at risk of abuse or neglect, if the
findings of an investigation suggest that an adult in the alternate care
facility died allegedly as a result of abuse or neglect.
(9) Unless the legal representative is
alleged to have abused, neglected, or exploited the adult, a legal
representative may act on behalf of an adult for purposes of this
administrative regulation.
Section
4. Results of the Investigation.
(1) Designated regional cabinet staff shall
address the following when evaluating the results of the investigation:
(a) The adult's account of the situation, if
possible;
(b) The alleged
perpetrator's account of the situation, if available;
(c) The information supplied by collateral
contact;
(d) Records and
documents;
(e) The assessment
information;
(f) Previous reports
involving the adult or alleged perpetrator; and
(g) Other information relevant to the
protection of an adult.
(2) The findings of the adult protective
service investigation shall be:
(a) Shared
with appropriate authorized agencies in accordance with
KRS
209.030(5); and
(b) Documented on the cabinet's
database.
(3) Designated
regional cabinet staff shall maintain a written record, as specified in
KRS
209.030(5), to include:
(a) Information reported in accordance with
KRS
209.030(4); and
(b) A narrative documenting:
1. The investigation; and
2. Findings of the investigation.
(4) If an issue or
concern identified by the cabinet does not require a protective service case
being opened, the cabinet may work with the adult to develop an aftercare plan:
(a) At the consent of the adult;
and
(b) In an effort to prevent a
recurrence of adult abuse, neglect, or exploitation.
Section 5. Substantiation Criteria
and Submission of Findings.
(1) In determining
if an allegation is substantiated, the cabinet shall use the statutory
definitions of:
(a) Adult; and
(b)
1.
Abuse;
2. Neglect; or
3. Exploitation.
(2) If preponderance of evidence
exists, designated regional cabinet staff may make a finding of and
substantiate abuse, neglect, or exploitation.
(3) A finding made by cabinet staff shall not
be a judicial finding.
(4) Cabinet
supervisory staff shall review and approve a finding of an investigation prior
to its finalization.
Section
6. Reports of Alleged Adult Abuse, Neglect, or Exploitation
Involving an Employee or Compensated Person. If the cabinet receives a report
involving an employee or a person acting with the expectation of compensation,
cabinet staff shall provide the alleged perpetrator during the investigative
interview:
(1) Notice of the basic
allegations, which shall be void of any specifics that may compromise the
investigation;
(2) Notice that the
alleged perpetrator will be provided notification of the findings upon
completion of the investigation;
(3) Due process requirements in accordance
with KRS Chapter 13B and
KRS
209.032; and
(4) A statement that a validated
substantiated finding shall be reported on the caregiver misconduct registry
established by
922 KAR 5:120.
Section 7. Opening a Case.
(1) A case may be opened:
(a) As a result of a protective service
investigation; or
(b) Upon
identification of an adult through a general adult services assessment as being
at risk of abuse, neglect, or exploitation.
(2) The decision to open a case shall be
based on the:
(a) Voluntary request for, or
acceptance of, services by an adult who needs adult protection or general adult
services; or
(b) Need for
involuntary emergency protective services.
(3) If it has been determined that an adult
is incapable of giving consent to receive protective services, the court may
assume jurisdiction and issue an ex parte order in accordance with
KRS
209.130.
(4) Emergency protective services shall be
provided in accordance with
KRS
209.100.
(5) The cabinet shall develop an adult's case
plan with the adult and, upon consent of the adult, may include consideration
of the following:
(a) Designated regional
cabinet staff;
(b) Family
members;
(c) Family
friends;
(d) Community partners;
or
(e) Other individuals requested
by the adult.
(6) Within
thirty (30) calendar days of opening a case, designated regional cabinet staff
shall:
(a) Initiate a case plan with the
adult; and
(b) Submit the plan to
supervisory staff for approval.
Section 8. Referrals for Criminal
Prosecution. The cabinet shall refer substantiated reports of adult abuse,
neglect, or exploitation to Commonwealth's Attorneys and county attorneys for
consideration of criminal prosecution in accordance with
KRS
209.180.
Section 9. Restraining Order or Injunctive
Relief. If necessary, designated regional cabinet staff shall contact the
cabinet's Office of Legal Services for advice and assistance in obtaining
restraining orders or other forms of injunctive relief that may be issued for
protection of an adult, in accordance with
KRS
209.040.
Section 10. Guardianship or Conservatorship
of Disabled Persons.
(1) In an attempt to
provide appropriate protective services, designated regional cabinet staff
shall assess the need for guardianship if an individual appears unable to make
an informed choice to:
(a) Manage personal
affairs;
(b) Manage financial
affairs; or
(c) Carry out the
activities of daily living.
(2) Designated regional cabinet staff may
assist in protective service situations in seeking out family, friends, or
other interested and qualified individuals who are willing and capable to
become guardians.
(3) Upon an order
of the court, the cabinet shall file an interdisciplinary evaluation report in
accordance with KRS
387.540(1).
Section 11. Involuntary
Hospitalization.
(1) Designated regional
cabinet staff shall encourage the voluntary hospitalization of an adult who
needs to secure mental health treatment to avoid serious physical injury or
death.
(2) Designated regional
cabinet staff may file a petition for involuntary hospitalization in accordance
with KRS
202A.051 and
202B.100 if:
(a) The adult lacks the capacity to consent
or refuses mental health treatment;
(b) Other resources are not
available;
(c) Another petitioner
is absent or unavailable; and
(d)
Prior cabinet supervisory approval is obtained.
Section 12. Reporting.
(1) Reports of alleged adult abuse, neglect,
or exploitation shall be maintained in the cabinet's database for:
(a) Use in future investigations;
and
(b) Annual reporting
requirements as specified in
KRS
209.030(12).
(2) The cabinet shall submit a
report annually to the Governor and Legislative Research Commission in
accordance with KRS
209.030(12)(b).
(a) In addition to the information required
by KRS
209.030(12)(b), the summary
of reports received by the cabinet shall include for each individual who is the
subject of a report:
1. Age;
2. Demographics;
3. Type of abuse;
4. The number of:
a. Accepted reports; and
b. Substantiated reports; and
5. Other information relevant to
the protection of an adult.
(b) The information required in paragraph (a)
of this subsection shall only be provided if it does not identify an
individual.
Section
13. Case Closure and Aftercare Planning.
(1) The cabinet's decision to close an adult
protective service case shall be based upon:
(a) Evidence that the factors resulting in
adult abuse, neglect, or exploitation are resolved to the extent that the
adult's needs have been met;
(b)
The request of the adult; or
(c) A
lack of legal authority to obtain court ordered cooperation from the
adult.
(2) An adult
shall be:
(a) Notified in writing of the
decision to close the protective service case; and
(b) Advised of the right to request a service
appeal in accordance with Section 14 of this administrative
regulation.
(3) If an
adult protective service case is appropriate for closure, the cabinet may work
with the adult to develop an aftercare plan:
(a) At the consent of the adult;
and
(b) In an effort to prevent a
recurrence of adult abuse, neglect, or exploitation.
(4) If the cabinet closes the protective
service case in accordance with this section, aftercare planning may link the
adult to community resources for the purpose of continuing preventive
measures.
Section 14.
Appeal Rights.
(1) A victim of adult abuse,
neglect, or exploitation may request a service appeal in accordance with
922 KAR 1:320, Section
2.
(2) If the cabinet makes a
finding that an individual providing care to an adult as an employee or with
the expectation of compensation has committed adult abuse, neglect, or
exploitation, the individual shall receive appeal rights in accordance with
922 KAR 5:120.
STATUTORY AUTHORITY:
KRS
194A.050(1),
209.030(1)