The initial findings shall be summarized and forwarded to ...



Upon receipt of a report that alleges an act has occurred which would warrant a referral to the Employee Disqualification List (EDL), the investigation shall focus on obtaining all information available in the case. The Adult Protective & Community Worker (APCW) shall sort through the information gathered during the investigation to determine which evidence supports the allegations. All evidence sent forward to the Office of General Counsel (OGC) must be sufficient to prove that the allegations in the case are true (see Policy 1703.20). Referrals regarding possible statutory violations must be legally sound and must meet statutory definitions for inclusion on the EDL.

A case referred to OGC by the Division of Senior and Disability Services (DSDS) for EDL placement shall include in evidence a documented statement regarding the allegations from the Home and Community Based Services (HCBS) participant (i.e. in-home services participant or Consumer Directed Services (CDS) consumer). The allegations, as well as appropriate explanations, are necessary to determine how to proceed. This documentation, as well as other EDL evidence collected, shall be scanned and uploaded to the Reported Adult’s (RA’s) electronic record in Case Compass.

Abuse/neglect or exploitation, misappropriation of property/funds, or falsification of service delivery documentation often involve multiple victims. Investigations, which may result in an EDL referral, require contact with all participants served by the Alleged Perpetrator (AP) during the time of the incident and within the past three (3) months. These participant contacts shall be documented in the Recordings tab in Case Compass.

The investigation shall also include an interview of the AP by the Adult Protective & Community Worker (APCW) (see Policy 1703.50). There may be rare occasions when it is appropriate to waive the required interview with the AP, such as when law enforcement has requested DSDS not to interview the AP or when the AP cannot be located or refuses to cooperate. The decision to waive the AP interview requires supervisory approval. Sufficient information that justifies the request must be presented by the APCW in order for the Adult Protective & Community Supervisor (APCS) to approve the waiver.

If the APCW is requesting a waiver of the AP interview, the APCW shall “Request an Exception” in Case Compass, selecting the appropriate “Exception Type” and the “Exception Reason.” This will generate a notification to the APCS. The request and reason for the request must be documented in the Recordings tab in Case Compass.

When law enforcement is involved, a copy of the police report and law enforcement AP interview shall be obtained. The documents collected from law enforcement shall be scanned and uploaded to the RA’s electronic record in Case Compass (see Policy 1703.20). Anytime a document containing pertinent information to the report is too large to be uploaded into Case Compass, information regarding that document, including the location of the document, shall be noted in the Recordings tab.

To ensure that possible statutory violations are legally sound and meet the statutory definition for inclusion on the EDL, the APCW shall be knowledgeable of the following terms and their meanings:

Abuse

“The infliction of physical, sexual, or emotional injury or harm including financial exploitation by any person, firm or corporation.” (192.2400 RSMo)

There must exist sufficient evidence to prove that:

• the event occurred;

• the alleged perpetrator committed the act;

• the act meets the statutory definition of abuse.

Alleged Perpetrator (AP)

The employee must be or have been employed by an HCBS provider (in-home services provider agency or a CDS vendor/consumer) and the EDL allegations must have resulted from the direct or indirect relationship with the HCBS participant.

The APCW shall mail the DA-23, Request for Provider Information, to the HCBS provider to request information and evidence regarding the AP, including pedigree, timesheets, and contracts (see Policy 1707.57).

• If the AP is a CDS personal care attendant, the APCW shall request the CDS contract signed by the consumer and the personal care attendant. This document shall be scanned and uploaded into the RA’s electronic record in Case Compass.

NOTE: An EDL AP may also include a home health, hospice, hospital, long-term care facility or ambulatory surgical center employee. These EDL hotline reports are also received by the Central Registry Unit (CRU) but are referred to the Division of Regulation and Licensure (DRL) for investigation. DRL will make referrals to OGC to include these individuals on the EDL.

In-Home Services Provider Agency

“A business entity under contract with the department or with a Medicaid participation agreement, which employs persons to deliver any kind of services provided for eligible adults in their private homes.” (192.2400 RSMo)

This would include any agency with a Medicaid participation agreement to provide any kind of service to eligible adults living in the community (i.e., medical equipment supply companies, home health agencies, or therapies, hospice agencies as well as in-home service providers).

• Per Missouri Executive Order 12-02, In-Home Services Provider Agencies are now contracted with the Missouri Medicaid and Audit Compliance Unit (MMAC).

• If the agency is not a qualified agency through MMAC or through Medicaid, generally no referral should be made (however, a prosecution referral may be appropriate). (see Policy 1703.72)

In-Home Services

Services provided to an in-home services participant by an employee of an in-home services provider that allow him/her to receive assistance with activities of daily living in order to maintain his/her independence in his/her residence.

Vendor

“Any organization having a written agreement with the department to provide services including monitoring and oversight of the personal care attendant, orientation, and training of the consumer, and fiscal conduit services necessary for delivery of personal care assistance services to consumers.” (208.900(10) RSMo)

• Per Missouri Executive Order 12-02, Vendors are now contracted with the Missouri Medicaid and Audit Compliance Unit (MMAC).

• CDS vendors serve as the intermediary of the CDS program (handle employment applications, background checks, taxes, paychecks, etc.).

Consumer Directed Services (CDS)

Services provided to a consumer and directed by the consumer that allow him/her to receive assistance with activities of daily living in order to maintain his/her independence in his/her residence.

Consumer

“A physically disabled person determined by the department to be eligible to receive personal care assistance services.” (208.900(1) RSMo)

Consumers receive personal care assistance services through the CDS program.

Functional limitations, which limit an individual’s ability to direct their own care, would preclude a person from participating in the CDS program.

• If it is found that a participant that receives CDS cannot direct their own care, this participant shall be transferred to in-home services or has the option to leave HCBS participation.

Personal Care Attendant

An individual hired, trained, and supervised by the consumer to provide the consumer directed services for the consumer.

• As directed in statute 208.900(6), RSMo, the personal care attendant is not allowed to be the RA’s spouse. According to federal regulation CFR 440.167, the personal care attendant may also not be a “legally responsible relative”. The Center for Medicare and Medicaid Services (CMS) interprets this to include guardians.

Home Health Agency

A public or private agency that provides two or more home health services in the patient’s residence according to a physician’s treatment plan. Any agency offering two or more services must be licensed. Home health services are those part-time or intermittent services provided to a patient in their residence that include any of the following:

• nursing;

• physical, speech and/or occupational therapy;

• home health aide; or,

• medical social service.

Hospice

“A coordinated program of palliative and supportive services provided in both home and inpatient settings which provides for physical, psychological, social and spiritual care for dying persons and their families where services are provided by a medically directed interdisciplinary team of professionals and volunteers and bereavement care is available to the family following the death of a person.” (197.250(5) RSMo)

Injury or Harm

The most critical component is to prove the element of injury or harm. Currently, there is no clear definition of what constitutes injury or harm. Questions concerning

injury or harm should be referred to the department’s EDL program attorney or their designee.

Knowingly, Purposely or Recklessly

To place a person’s name on the EDL for abuse, there must be sufficient evidence to show that the AP acted knowingly, recklessly or purposely. (This will generally be an issue for the legal review and a legal question for the hearing). Purposely is the highest standard.

Misappropriation of Funds or Property or Falsification of any Documents Verifying Service Delivery to an In-Home Service Client or CDS Consumer”

Sufficient evidence must be presented which proves the act did occur and was committed by an employee of an agency or personal care attendant of a consumer that meets the statutory definition of an ‘in-home services provider agency’ or ‘consumer’.

• For misappropriation of funds or property, any funds or property removed from the RA’s residence (even if the funds or property do not belong to the RA) constitute misappropriation.

• For cases involving falsification of service delivery documents, the APCW shall complete a Falsification Worksheet to determine the exact hours of falsified time. Only one participant’s service dates can be entered and calculated per page of the worksheet. This worksheet shall be scanned and uploaded into the RA’s electronic record in Case Compass (see Policy 1703.22, Exhibit A).

• An in-home service or CDS employee’s errors or otherwise sloppy paper work on a timesheet do not meet the legal definition of falsification.

• The statute governing misappropriation or falsification does not include the requirement regarding “knowingly, purposely, or recklessly” or the establishment of injury or harm.

Neglect

“The failure to provide services to an eligible adult by any person, firm or corporation with a legal or contractual duty to do so, when such failure presents either an imminent danger to the health, safety or welfare of the client or a substantial probability that death or serious physical harm would result.” (192.2400 RSMo):

Examples of neglect include:

• failure to give critical medication or treatment;

• extended failure to provide personal care;

• failure to prepare meals or provide needed assistance with eating and drinking (in most cases this would have to be more than a one-time failure).

Sufficient evidence must exist which proves:

• the AP had the responsibility to act and failed to do so;

• the failure to act meets the statutory definition of neglect.

Failure to provide homemaker or chore services (clean house) may not meet the definition of neglect.

As with abuse, evidence must be sufficient to prove that the AP acted recklessly,

knowingly, or purposely.

(LEGAL REFERENCE: 208.900, 208.912, 208.915, 192.2400, 192.2475, and 192.2480)

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