Current through Reg. 49, No. 38; September 20, 2024
(a) Applicability. This section applies to
investigations, conducted under §
RSA 261.401
of the Family Code, of alleged child abuse, neglect, or exploitation in
facilities operated, licensed, certified, or registered by a state
agency.
(b) Formal investigation.
On receiving an oral or written allegation or report of abuse, neglect or
exploitation, a state agency must immediately initiate a formal investigation
to determine the accuracy of the report and to evaluate the need for protective
services for the child. A state agency should consider the following steps
(which may vary according to circumstances) in conducting its investigation:
(1) a face-to-face interview with the alleged
victim to evaluate immediate and long-term risk. The investigator should make
every effort to establish face-to-face contact with the alleged victim,
including a diligent search to locate the alleged victim, if the victim's
whereabouts are unknown;
(2) make a
reasonable effort to locate and inform each parent of a child who is the
alleged victim of abuse, neglect, or exploitation, of the nature of the
allegation and of the fact that the interview was conducted.
(3) a face-to-face interview with the
person(s) thought to have knowledge of the circumstances related to the alleged
abuse, neglect or exploitation, including anyone responsible for the ongoing
care of a child;
(4) collecting
relevant information such as:
(A) the nature,
extent, and cause of the abuse, neglect, or exploitation;
(B) the identity of the person responsible
for the abuse, neglect, or exploitation;
(C) the names and conditions of the other
individual(s) in the home;
(D) the
adequacy of the environment; and
(E) the relationship of the alleged victim to
the person(s) responsible; and
(5) assigning a priority rating to the
investigation based on the information received and the degree of severity and
immediacy of the alleged harm to the child.
(c) Priorities for investigation. A state
agency, as defined in §
RSA
351.501 of this title (relating to
Definitions Relating to Child Abuse Neglect and Exploitation):
(1) must ensure that the facility establishes
a system for informing persons who work under the auspices of the facility of
their obligations to report suspected abuse, neglect, and exploitation in
accordance with the state agency's rules and/or policies;
(2) must establish a system for assigning
reasonable timelines for initiating and for completing an investigation of a
report of abuse, neglect or exploitation that is based on the degree to which
the alleged victim is believed to be in immediate danger of physical harm and
the degree to which relevant evidence may be lost in relation to the initiation
date of the investigation:
(A) at any time
the alleged victim may incur physical injury or evidence may be lost pending
the initiation of an investigation, the investigation must be initiated within
24 hours of receipt of the report;
(B) notwithstanding the potential risk of
physical injury to the child or loss of evidence, all investigations must be
completed within 30 calendar days of receipt of the report; provided, however,
that the completion date for an investigation may be extended beyond 30 days
for good cause as documented in the investigation report;
(3) may conclude an investigation and retain
any applicable immunity granted pursuant to the Family Code, §
RSA 261.106, at any
time that the agency determines that the report of abuse, neglect or
exploitation is frivolous or patently without a factual basis or, the conduct
reported, even if true, does not constitute abuse, neglect or exploitation;
and
(4) must refer any report of
abuse, neglect or exploitation received by the agency but not investigated by
the agency to the appropriate law enforcement or state agency that should
conduct the investigation.
(d) Collection of evidence. The collection of
evidence should include, but is not limited to:
(1) a full statement of the
allegation(s);
(2) interview(s)
with the alleged victim, alleged perpetrator, and all witnesses or persons who
may provide collateral information that may be relevant to the investigation;
(A) interviews must be conducted in a timely
manner so as to maximize the information obtained through the
interview;
(B) any person
authorized to conduct an investigation of abuse, neglect, or exploitation
should coordinate investigative activities and share information with other
appropriate agencies, if any, in order to minimize the number of interviews of
the victim;
(3) written
statements signed and dated, respectively, by the alleged victim, alleged
perpetrator, and other collateral witnesses interviewed by the investigator; if
the alleged victim, alleged perpetrator or other witness is unable or unwilling
to write and/or sign a statement, the investigation report must include a
statement to this effect;
(4)
documentation of a physical examination of the alleged victim and medical
treatment rendered, as needed;
(5)
photographs should be taken whenever there are allegations of physical
injuries;
(6) diagrams, as
needed;
(7) the original or
computer generated notes made during the investigation, videotapes and
audiotapes of interviews, in order to preserve and document the chain of
evidence; and
(8) any other
physical evidence that is relevant to the investigation.
(e) Burden of proof. After the evidence has
been collected and evaluated, the investigative staff must determine whether or
not to confirm the allegation. To confirm an allegation, the investigative
staff must find the abuse, neglect, and exploitation is supported by a
preponderance of the evidence. The following classifications are recommended
for investigative findings that are not confirmed:
(1) Unconfirmed means it is reasonable to
conclude that abuse, neglect, or exploitation did not occur or is unlikely to
occur.
(2) Inconclusive means there
is insufficient evidence to support or refute an allegation. This occurs when
an allegation of abuse, neglect, or exploitation could not be confirmed,
unconfirmed, or unfounded because there is a lack of witnesses or other
relevant evidence.
(3) Unfounded
means that an allegation of abuse, neglect, or exploitation is spurious or
patently without factual basis.
(f) Content of the investigative report. An
investigative report should, to the greatest extent possible, be written
concisely, clearly, factually, and objectively. The following elements should
be included in the report:
(1) a brief
description of the allegation that identifies the alleged victim, alleged
perpetrator(s), and any witnesses;
(2) date and time the incident occurred and
when it was reported;
(3) a summary
of investigative procedures;
(4) a
summary and an analysis of the evidence, the investigative finding(s), and
recommendations; and
(5) supporting
documents such as witness statements, injury reports, and diagrams, as
appropriate.
(6) The investigating
state agency must submit the report, and any recommendations to the district
attorney or other appropriate law enforcement agency, if requested to do so by
law enforcement, the agency determined further legal action is warranted, or
the agency confirmed that the alleged victim was abused, neglected, or
exploited and it appears that there is a criminal violation.
(g) Referrals to appropriate
agencies. A state agency that receives a report of abuse, neglect, or
exploitation that is not within the agency's jurisdiction must refer the matter
to the agencies listed below, as appropriate:
(1) to the Texas Department of Protective and
Regulatory Services, if
(A) the alleged or
suspected abuse, neglect, or exploitation involves a person responsible for the
care, custody, or welfare of the alleged victim;
(B) the alleged or suspected abuse, neglect
or exploitation of a person receiving services in a facility operated by MHMR,
in or from a community center or a local mental health or mental retardation
authority, or through a program that contracts with MHMR, a community center,
or local mental health or mental retardation authority;
(2) to the appropriate law enforcement
agency, if the allegation does not involve a caretaker or the allegation
appears to involve an incident that violates the Penal Code; the state agency
must send its final report to law enforcement, if the investigation indicates a
crime has been committed; and
(3)
to the state agency that operates, licenses, certifies, or registers the
facility in which the alleged abuse, neglect, or exploitation occurred, may
have occurred, or is likely to occur.
(h) Administrative review of investigation
findings. A state agency should develop and implement policies and procedures
to resolve complaints as described in §
RSA
261.309 of the Family Code.
(i) Confidentiality of Reports. A state
agency may disclose the allegation, report, records, communications, and
working papers used or developed in the investigative process, including the
resulting final report regarding abuse, neglect, or exploitation, only as
provided by §
RSA
261.201 of the Family Code, concerning the
confidentiality of information.
(j)
Qualifications and training of investigator(s). A state agency must establish
minimum qualifications for all abuse, neglect, and exploitation investigators.
(1) In determining the appropriate
qualifications, a state agency must include a minimum number of hours of annual
professional training for investigators of suspected child abuse, neglect, or
exploitation. The annual professional training curriculum should include
information concerning:
(A) physical abuse
and neglect, including distinguishing physical abuse from ordinary
injuries;
(B) psychological and
emotional abuse and neglect;
(C)
exploitation;
(D) sexual
abuse;
(E) available treatment
resources;
(F) the incidence and
types of reports of victim abuse, neglect, or exploitation that are received by
the investigating agencies, including information concerning false
reports;
(G) interview techniques,
including setting appropriate limits on the number of interviews and
examinations of a suspected victim and the taping (audio or video) of a
suspected victim without interruption; and
(H) procedures to preserve evidence,
including the original or computer generated notes made during the
investigation and videotapes and audiotapes of interviews.
(2) The investigator must have knowledge of
Penal Code sections that relate to abuse, neglect, and exploitation.
(3) The investigator must know how to develop
written statements and other documentary records related to the interview
process and how to handle evidence, for example, collection and preservation of
physical evidence.
