10-149 C.M.R. ch. 2, § 7 - APS FINDINGS AND RECOMMENDATIONS

1. Final Written Findings

A. APS shall determine whether the facts support the allegation(s) in the Report, based on the available fact-based evidence and document the determination in writing.

B. APS may make one or more of the following findings on an allegation of Abuse, Neglect, or Exploitation:

1. Substantiated;

2. Substantiated - Other (e.g., substantiated self-neglect);

3. Not Substantiated; or

4. Unable to determine.

C. The standard of proof to reach a finding on an allegation of Abuse, Neglect, or Exploitation is by "a preponderance of the evidence" (i.e., the greater weight of the evidence supports a finding that an individual or individuals Abused, Neglected, or Exploited an Incapacitated or Dependent Adult).

D. A Substantiation reflects a finding by a preponderance of the evidence (based on an APS Investigation and final written findings) that an individual Abused, Neglected, or Exploited an Incapacitated or Dependent Adult by engaging in one or more of the following:

1. Sexual abuse or sexual exploitation, which means contact or interaction of a sexual nature involving a Dependent Adult without the adult's consent or with an Incapacitated Adult where consent cannot be given by the adult. Examples of sexual abuse include, but are not limited to, the following:

i. Forced exposure to sexually explicit content;

ii. Nonconsensual sexual conduct including:

a. Unwanted touching, rubbing, grabbing, exposure, fondling, or lewd or lascivious acts,

b. Unwanted sexually explicit photographing,

c. Forcing the Incapacitated or Dependent Adult to take off clothes, or

d. Any sexual contact with an Incapacitated or Dependent Adult who is without the capacity to consent, as determined by a licensed medical professional or court of law;

iii. Sexual assault or battery including:

a. Sexual battery,

b. Rape or attempted rape, including spousal rape or unwanted sexual contact with a spouse or partner, significant other, or anyone else, or

c. Incest;

iv. Sexual contact with paid staff; or

v. Sexual exploitation;

2. Exploitation involving the illegal or improper use of an Incapacitated or Dependent Adult or that adult's resources for another's profit or advantage. Examples include, but are not limited to, the following:

i. Fraud or scam;

ii. Wrongfully used property or resources including:

a. Cashing the adult's check or using the adult's debit card without authorization,

b. Forging the adult's signature,

c. Misusing or stealing the adult's money or possessions, or

d. Not executing the duties of conservatorship, fiduciary, power of attorney, or trustee; or doing so improperly;

iii. Medication theft; or

iv. Misinformed/uninformed consent;

3. Intentionally, knowingly, or recklessly engaging in physical abuse or emotional abuse of an Incapacitated or Dependent Adult (i.e., causing physical harm or pain or mental anguish through the infliction of injury, unreasonable confinement, intimidation, or cruel punishment). Examples include, but are not limited to, the following:

i. Confinement or restraint. Use of physical or chemical restraint or psychotropic medication for any of the following reasons:

a. Punishment, sedation or control,

b. Strapping or holding down,

c. Confining to a room bed, or specific area, including through deprivation of adaptive equipment, or

d. Unauthorized use of a behavior plan pursuant to 14-197 C.M.R. ch. 5;

ii. Serious injury. Serious injury includes but is not limited to assault, battery, or force likely to produce serious harm. Indicators of serious injury may include the following:

a. Bruises, welts, abrasions, lacerations, or burns,

b. Fractures or sprains,

c. Internal injuries,

d. Injuries at various stages of healing,

e. Unreasonable or unknown reason for injury, or

f. Pushing, shoving, slapping, hitting, shaking, pulling hair, spitting, pinching, scratching, strangulation, or grabbing;

iii. Suspicious death;

iv. Harassment, threats, and intimidation including, without limitation:

a. Threats of bodily harm, including threats that the alleged perpetrator may harm themselves, threats of domestic violence among any members of the household, or display of weapons;

b. Threats to lifestyle, such as threatening placement or change in caregiver; threatening pets, preventing client from sleeping at night; threatening isolation from family, friends, or community; or

c. Threats or damage to property;

v. Verbal abuse including, without limitation:

a. Name calling, vulgarities, belittling, or attacking integrity, ability or beliefs, or

b. Misleading statements made with malicious intent against the client;

4. Intentionally, knowingly, or recklessly engaging in caregiver Neglect (i.e., causing a threat to the health or welfare of an Incapacitated or Dependent Adult by physical or mental injury or impairment, deprivation of essential needs, or failure to protect from these);

5. Intentionally, knowingly, or recklessly engaging in abuse or neglect that results in Serious Harm to an Incapacitated or Dependent Adult.

E. The terms "intentionally", "knowingly", and "recklessly" have the meanings set forth in 17-A M.R.S. § 35. The conduct shall not be substantiated if the individual can establish by a preponderance of the evidence that the conduct at issue was the product of an objectively reasonable good faith belief that they were acting in the best interests of the Incapacitated or Dependent Adult under all the facts and circumstances.

F. A Substantiation triggers an individual's rights to due process and may result in placement on a state or national registry.

G. Final written findings shall include the following, as appropriate:

1. A summary of the facts on which APS relied to reach a determination;

2. A clear statement indicating whether the reported allegation(s) of Abuse, Neglect, or Exploitation or the substantial risk thereof are supported by a preponderance of the evidence;

3. What, if any, services were arranged for the protection of the Incapacitated or Dependent Adult;

4. What, if any, actions will be taken as a result of the findings, including, but not limited to, whether the findings result in a Substantiation and whether the findings result in a referral to law enforcement.

2. Timeliness

A. Final written findings shall be entered into the electronic APS system by the assigned APS Caseworker no later than thirty (30) days from the date the report was received by APS unless an extension is applied as outlined below.

B. When an APS Investigation cannot be completed within thirty (30) days from the date the report was received by APS, the APS Caseworker shall document the reasons and estimate the number of days needed to complete the investigation in writing. An APS supervisor shall review and approve the APS Investigation extension and document same.

C. Any necessary subsequent extensions shall be reviewed and documented through the same process.

Notes

10-149 C.M.R. ch. 2, § 7