The Iowa Department of Inspections & Appeals’ Regulation of Assisted Living Programs

1. The Iowa Department of Inspections & Appeals’ Regulation of Assisted Living Programs Jamie murphy, J.D. Tricia Dieleman, J.D. deborah Svec-carstens, J.D.

2. DEPENDENT ADULT ABUSE • Overview of Dependent Adult Abuse under Iowa Code chapter 235E • Case examples and current trends in abuse • Considerations in assessment of abuse

3. IOWA CODE 235E • Iowa Department of Inspections and Appeals has jurisdiction to investigate allegations of dependent adult abuse (daa) in facilities and programs: • Health Care Facilities (RCF, Nursing Facility, ICF/ID, ICF/MI) • Hospitals • Programs (Assisted Living, Elder Group Homes, Adult Day Services)

4. COMPLAINT INTAKES • Reports of abuse from: • facilities or programs (required); or • public, other state/federal agencies, employees, residents and families Federal and State guidelines require the triage and prioritization of complaints and incidents received to ensure investigations are conducted in a timely manner. • complaints/incidents regarding accredited (“deemed”) hospitals are reviewed and authorized or rejected for investigation by CMS Regional Office. • Abuse investigations conducted by surveyors

5. ABUSE INVESTIGATIONS • In-house investigation (5 days) • DIA Investigation • Record Review • Observation • Interviews • NOTE: Iowa Administrative Code 52.2(6) • Upon receiving a claim of dependent adult abuse, the facility or program shall separate the victim and the alleged abuser immediately and maintain that separation until the department’s abuse investigation is completed and a determination has been made. • Draft report generated • Finding determination • Final Report

6. 3 ELEMENTS • Dependent Adult • Caretaker • Abuse (8 potential allegations)…

7. DEPENDENT ADULT • 18 years or older whose ability to perform the normal activities of daily living or to provide for the person’s own care and protection is impaired, either temporarily or permanently.

8. CARETAKER • Staff member of a facility/program who provides care, protection, or services to a dependent adult voluntarily, by contract, through employment, or by order of the court.

9. “DEPENDENT ADULT ABUSE” MEANS • Any of the following as a result of the willful misconduct or gross negligence or reckless acts or omissions of a caretaker, taking into account the totality of the circumstances:

10. 8 ALLEGATIONS OF ABUSE • Physical Injury • Unreasonable Confinement • Unreasonable Punishment • Assault • Sexual Offense (Iowa Code 709, 726.2) • Exploitation • Neglect • Sexual Exploitation

11. PHYSICAL INJURY • Physical injury, or injury which is at a variance with the history given of the injury, which involves a breach of skill or care or learning normally exercised by a caretaker in similar circumstances.

12. Unreasonable Confinement • Confinement that includes but is not limited to the use of restraints, either physical or chemical, for the convenience of staff.

13. Unreasonable Punishment • Willful act or statement intended by the caretaker to punish, agitate, confuse, frighten, or cause emotional distress to the dependent adult.

14. ASSAULT • Commission of any act which is generally intended to cause pain or injury to a dependent adult, or which is generally intended to result in physical contact which would be considered by a reasonable person to be insulting or offensive or any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. • General intent standard

15. NEGLECT • Deprivation of the minimum food, shelter, clothing, supervision, physical or mental health care, or other care necessary to maintain a dependent adult’s life or physical or mental health.

16. EXPLOITATION • Knowingly obtains, uses, endeavors to obtain to use, or who misappropriates, a dependent adult’s funds, assets, medications, or property with the intent to temporarily or permanently deprive a dependent adult of the use, benefit, or possession of the funds, assets, medication, or property for the benefit of someone other than the dependent adult.

17. Sexual Offense/Sexual Exploitation • Sex Abuse (Iowa Code 709, 726.2) • Sexual Exploitation: • Consensual or nonconsensual sexual conduct with a dependent adult which includes but is not limited to kissing; touching of the clothed or unclothed breast, groin, buttock, anus, pubes, or genitals; or a sex act, as defined in Iowa Code section 702.17. • Includes transmission, display, taking of electronic images of the unclothed breast, groin, buttock, anus, pubes, or genitals of a dependent adult by a caretaker for a purpose not related to treatment or diagnosis or a as part of an ongoing investigation.

18. Considerations in Assessment of Abuse • The report of abuse • Physical signs • Environment • Documentation • Mobility • Medications • Physical conditions • Caregivers

21. FINDINGS • Founded: 10 year placement on abuse registry unless appeal and prevail • Unfounded • Confirmed, Not Registered: 5 year placement on DHS assessment • Physical Injury • Unreasonable Confinement • Unreasonable Punishment • Assault • Neglect

22. APPEALS • Appeal Process: • Administrative Hearings (record made at this level) • Agency Director • Courts • Preponderance of the Evidence

23. STATISTICS • SFY 2014 (*1st half, 7/1/13 – 12/31/13) • Total Allegations • Founded 56 (7 ALP) • CNR 18 (0 ALP) • Unfounded 97 (5 ALP) • =171 (12 ALP) • SFY 2013: • Total Allegations • Founded 119 (33 ALP) • CNR 25 ( 2 ALP) • Unfounded 130 (35 ALP) • =274 (70 ALP) *Appeals may be pending and future rulings may cause changes to statistics

24. ABUSE EDUCATION • Mandatory reporters (235E.2): 2 hours of training related to the identification and reporting of dependent adult abuse within 6 months of initial employment or self-employment, and every five years thereafter. • Employer responsible for training • Approved training programs

25. QUESTIONS ABOUT ABUSE?

26. REGULATORY OVERSIGHT • Reporting requirements • Background checks – recent changes • Informal Conferences

27. NOTICE TO DEPARTMENT Rule 67.4: Notice required within 24 hours or next business day • Accident causing major injury

28. MAJOR INJURY, DEFINED • Results in death; OR • Requires admission to a higher level of care for treatment, other than for observation; OR • Requires consultation with the attending physician who determines “major injury”

29. NOTICE TO DEPT., cont’d. • Damage caused by natural, other disaster • Resident to resident abuse with physical injury • Pattern of acts by same tenant on another tenant • Results in physical injury • “pattern”: two or more times in 30 days

30. NOTICE TO DEPT., cont’d • Elopement • Suicide attempt • Fire • Fire sprinkler or fire alarm defect lasting more than 4 hours in 24-hour period

31. Reporting Dependent Adult Abuse Iowa Code chapter 235E A mandatory reporter who “reasonably believes” a dependent adult has suffered dependent adult abuse must report the suspected abuse to DIA (Iowa Code section 235E.2(2), 481 IAC 52.2)

32. Background Checks, Recent Amendments • Changes to the Code by legislature in 2012, 2013 and 2014 • Incorporated into rules at 481 IAC rule 67.19

33. SF2164 (2012) • New rule 67.19(8) • Exception to record check evaluation requirements under certain circumstances • Applies when a person with a criminal or abuse record leaves current employment and seeks employment at another facility • If ALL requirements are met, no new DHS evaluation is necessary

34. SF2164, cont’d 1. DHS did an evaluation before (for previous employer) and screened the person to work 2. The current background check does not show any new “hits” 3. Restrictions placed by DHS on the previous evaluation are still applicable 4. A copy of the previous evaluation is available to the new employer

35. SF2164 cont’d 5. The position with new employer is “substantially the same or has the same job responsibilities” as the previous job • “Substantially the same or has the same job responsibilities” means the position requires the same certification, licensure, or advanced training • Example: licensed nurse and DON

36. SF2164 cont’d • The new employer may still request a reevaluation by DHS, even though the exemption applies • The new employer must keep a copy of the previous evaluation in the person’s personnel file

37. SF347 (2013) • New rule 67.19(3)(e) • Allows employment for 60 days (beginning the first day of employment) pending DHS evaluation if ALL of the following apply

38. SF347 cont’d. • Person’s employment does not involve operation of vehicle • Person does not have a record of child or dependent adult abuse

39. SF347 cont’d 3. “Hit” on the crim check is for one of the following: • Simple misdemeanor for minor in possession of alcohol or providing alcohol to a minor (Iowa Code section 123.47) • First offense OWI 4. Facility requests evaluation by DHS

40. SF347 cont’d • Purpose: allows facilities to employ people with certain “hits” on crim check that are typically evaluated to work by DHS, cut down on evaluation time delay

41. HF2365 (2014) • Employee convicted or founded for abuse after the employee has started working • Previous law: Employer had to act to verify the information within 48 hours • NEW: Employer has seven calendar days to verify the information • Takes into account the delay in transferring information from courts to DCI

42. OTHER CHANGES – RULE 67.19 • If SING is used, the facility must submit the person’s maiden name, if applicable (no cost) • Results of background check are good for 30 days (if no “hits,” must employ w/in 30 days) • DHS 30-day provisions still apply • 30 days from receipt of check to request eval if “hit” • DHS eval is good for 30 days (must start working w/in 30 days of receipt of eval)

43. INFORMAL CONFERENCE (IC) • Rule 67.14(2) • 2013 legislation, effective 1/1/2014 • Replaces request for reconsideration, “R for R” • Will apply to Elder Group Homes and Adult Day Services programs on 1/1/15

44. INFORMAL CONFERENCE (IC) • Written request for IC to DIA within 20 days of issuance of final report • Identify RI(s) being disputed • Face-to-face or phone • Request monitor’s notes

45. INFORMAL CONFERENCE (IC) • Submit within 10 working days from date of written request for IC • Names of attendees • Supporting documentation

46. INFORMAL CONFERENCE (IC) • Independent reviewer • Iowa licensed attorney • Has not been employed by or appeared before DIA on behalf of ALP for 8 years

47. INFORMAL CONFERENCE (IC) • One hour • Limited attendance • Results generally within 10 working days after date of IC • 5 days after receipt of decision to pay civil penalty or request formal administrative appeal

48. What Questions May We Answer for You? Iowa Department of Inspections and Appeals Lucas Building 3rd Floor 321 East 12th Street Des Moines, IA 50319 (515) 281-4115