Code of Massachusetts Regulations
651 CMR - EXECUTIVE OFFICE OF ELDER AFFAIRS
Title 651 CMR 5.00 - Elder Abuse Reporting and Protective Services Program
Section 5.19 - Reporting to District Attorneys

Universal Citation: 651 MA Code of Regs 651.5

Current through Register 1531, September 27, 2024

(1) If the Department or its Protective Services Agency has Reasonable Cause to Believe that an Elder has died as a result of Abuse, the death shall be reported immediately to the District Attorney of the County in which the Abuse occurred. Written notification on a form provided by the Department shall be forwarded to the District Attorney as soon as possible. A Protective Services Agency shall cease the activities of the Protective Services Investigation and base the determination of Reasonable Cause to Believe on information already obtained in order that no action be taken which could jeopardize the District Attorney's ability to investigate a possible homicide and pursue criminal prosecution, where appropriate.

(2) If a Reportable Condition is substantiated and an Investigation results in a determination that the Elder has suffered a Reportable Condition(s) other than death, the Department or Protective Services Agency shall report such determination within 48 hours to the District Attorney of the County where the Abuse occurred for further investigation. Conditions Reportable to the District Attorney by a Protective Services Agency pursuant to M.G.L. c. 19A, §§ 16(b) and 18(a) shall include, but not be limited to, the following:

(a) Brain damage;

(b) Loss or substantial impairment of a bodily function or organ;

(c) Fracture of a bone;

(d) Any serious or intentional burns;

(e) Disfigurement;

(f) Sexual assault, rape, sexual misuse or sexual exploitation;

(g) Serious Physical Injury as the result of a pattern of repetitive actions;

(h) Soft tissue swelling, skin bruising or tears, depending on such factors as the Elder's physical condition, circumstances under which the injury occurred, and the number and location of bruises;

(i) Significant, unexplained weight loss;

(j) Symptoms resulting from the use of medications or chemical restraints or the withholding of life sustaining medications;

(k) Any other non-trivial injury;

(l) Pressure ulcers that pose a serious medical risk for the Elder;

(m) Financial exploitation which involves possible criminal conduct, including but not limited to, the crimes of larceny by stealing, larceny by false pretenses, larceny from the person, larceny by embezzlement, larceny by check, forgery, uttering and extortion, and which possible criminal conduct substantially and seriously affects the financial situation of the Elder;

(m) Threats of Abuse in which a Protective Services Agency has Reasonable Cause to Believe that an individual may have the intent and apparent ability to carry out the following:
1. threat to kill the Elder;

2. threat to physically harm the Elder as described in 651 CMR 5.19(2)(a) through (k).

(3) If an incident occurs in an open case, determination of Reportable Condition(s) to the District Attorney may be made during the provision of ongoing services.

(4) Release of Full Report/Personal Data. Neither the provisions of M.G.L. c. 66A regarding the confidential holding of Personal Data by the Department or Protective Services Agencies, M.G.L. c. 112, § 135 regarding social worker/client privilege nor the privacy and confidentiality requirements of M.G.L. c. 19A, § 23 shall prohibit the Department, or a Protective Services Agency, from making full reports to the District Attorney regarding information obtained from the intake, Investigation, or service provision stages of a Protective Services case involving a Reportable Condition to the District Attorney or the death of an Elder resulting from Abuse. The identity of the reporter of Abuse shall be included in this report. Further Personal Data of Data Subjects including, but not limited to, the case record shall be released to the District Attorney upon request.

(5) A Protective Services Agency or the Department shall, after the filing of such report, attempt to schedule a meeting with the District Attorney's Office in order to discuss any future action to be taken in the case.

(6) Reports to District Attorneys/Criminal Matters.

(a) Any documents provided to a District Attorney in accordance with these regulations, which are thereafter subpoenaed from the District Attorney or otherwise requested from the District Attorney by any party to any pending criminal matter, shall be released or not released by the District Attorney solely in accordance with the applicable rules or procedures governing the District Attorney, and no notice to or consent from the Department or Protective Services Agency shall be required. The District Attorney shall make his or her best efforts to preserve the confidentiality of Personal Data held in such case files in accordance with M.G.L. c. 66A, the Fair Information Practices Act (FIPA), especially regarding the confidentiality of the identity of the reporter of Abuse.

(b) Any documents from the Department or Protective Services Agency files which are subpoenaed directly from the Department or a Protective Services Agency by any party to a criminal matter to which the Department or Protective Services Agency is not a party, shall be brought by the Department or Protective Services Agency before the trial court, at which time the Department or Protective Services Agency:
1. shall make the judge aware of the provisions of M.G.L. c. 19A, § 23, M.G.L. c. 66A, § 2, and M.G.L. c. 112, § 135;

2. may, pursuant to 651 CMR 5.20(6), move to quash such subpoena in whole or in part if, in its opinion, the production of documents in the record would not be in the best interests of the Abused Elder;

3. shall seek a specific order from the judge as to the extent and manner of release by the Department or Protective Services Agency.

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