PART 50 OFFICE OF INSPECTOR GENERAL INVESTIGATIONS OF ALLEGED ABUSE, NEGLECT, OR FINANCIAL EXPLOITATION IN STATE-OPERATED FACILITIES AND COMMUNITY AGENCIES : Sections Listing

TITLE 59: MENTAL HEALTH
CHAPTER I: DEPARTMENT OF HUMAN SERVICES
PART 50 OFFICE OF INSPECTOR GENERAL INVESTIGATIONS OF ALLEGED ABUSE, NEGLECT, OR FINANCIAL EXPLOITATION IN STATE-OPERATED FACILITIES AND COMMUNITY AGENCIES

AUTHORITY: Implementing and authorized by Section 1-17 of the Department of Human Services Act [20 ILCS 1305].

SOURCE: Adopted at 22 Ill. Reg. 19334, effective October 19, 1998; emergency amendment at 23 Ill. Reg. 4513, effective April 1, 1999, for a maximum of 150 days; amended at 23 Ill. Reg. 10812, effective August 23, 1999; emergency amendment at 26 Ill. Reg. 484, effective January 1, 2002, for a maximum of 150 days; amended at 26 Ill. Reg. 8352, effective May 24, 2002; amended at 32 Ill. Reg. 8132, effective May 16, 2008; emergency amendment at 33 Ill. Reg. 13489, effective September 10, 2009, for a maximum of 150 days; emergency expired February 6, 2010; amended at 34 Ill. Reg. 5239, effective March 25, 2010; emergency amendment at 38 Ill. Reg. 18242, effective August 13, 2014, for a maximum of 150 days; amended at 38 Ill. Reg. 19152, effective September 10, 2014; amended at 38 Ill. Reg. 22642, effective November 20, 2014; emergency amendment at 39 Ill. Reg. 13271, effective September 18, 2015, for a maximum of 150 days; amended at 39 Ill. Reg. 15134, effective November 6, 2015; amended at 40 Ill. Reg. 1824, effective January 5, 2016; amended at 41 Ill. Reg. 6516, effective May 26, 2017; amended at 42 Ill. Reg. 15437, effective July 26, 2018; amended at 43 Ill. Reg. 3878, effective March 15, 2019; amended at 47 Ill. Reg. 5663, effective April 4, 2023.

 

Section 50.10  Definitions

 

For the purposes of this Part, the following terms are defined:

 

"Abuse".  See definitions for Physical Abuse, Sexual Abuse, and Mental Abuse.

 

"Access".  Admission to a Community Agency or facility for the purpose of conducting imminent risk assessments, conducting investigations, monitoring compliance with a written response, or completing any other statutorily assigned duty, such as annual unannounced site visits, including but not limited to conducting interviews and obtaining and reviewing any documents or records that the Office of Inspector General (OIG) believes to be pertinent to an investigation.

 

"Act".  The Department of Human Services Act [20 ILCS 1305].

 

"Administrative Action".  An action taken by the Community Agency or the facility in response to an OIG report, an intake referral, or the direction of the DHS Secretary (see 20 ILCS 1305/1-17(p) & (q)) that protects individuals from abuse, neglect, or Financial Exploitation or prevents recurrences of such abuse, neglect, or Financial Exploitation.

 

"Agency". See the definition for Community Agency.

 

"Aggravating Circumstance".  A factor that is attendant to a finding and that tends to compound or increase the culpability of the accused employee/facility/agency.

 

"Allegation".  An assertion, complaint, suspicion, or incident involving any of the following conduct by an employee, facility, or agency against an individual or individuals: Mental Abuse, Physical Abuse, Sexual Abuse, neglect, or Financial Exploitation.

 

"Authorized Representative".  The administrative head or executive director of a Community Agency appointed by the Community Agency's governing body with overall responsibility for fiscal and programmatic management, or the facility director or hospital administrator of a Department facility.  If this person is implicated in an investigation, the governing body of the Community Agency or the Secretary of the Department shall be deemed the Authorized Representative for that investigation.

 

"Bodily Harm".  Any injury, damage, or impairment to an individual's physical condition, or making physical contact of an insulting or provoking nature with an individual.

 

"Community Agency" or "Agency".  A Community Agency licensed, funded, or certified by the Department, but not licensed or certified by any other human services agency of the State, to provide mental health service or developmental disabilities service, or a program licensed, funded, or certified by the Department, but not licensed or certified by any other human services agency of the State, to provide mental health service or developmental disability service.

 

"Complainant".  The person who reports a death or an allegation of abuse, neglect, or Financial Exploitation directly to OIG and is not the Required Reporter.

 

"Complaint".  A report of a death or an allegation of abuse, neglect, or Financial Exploitation reported directly to the OIG Hotline.

 

“Completed Investigative Report”.  An investigative report approved for distribution by the Inspector General that summarizes the evidence obtained during the course of the investigation and that indicates whether the allegation of abuse, neglect, or Financial Exploitation is substantiated, unsubstantiated, or unfounded.

 

"Credible Evidence".  Any evidence that relates to the allegation or incident and that is considered believable and reliable.

 

"Day".  Working day, unless otherwise specified.

 

"Deflection".  A situation in which an individual is presented for admission to a facility or agency and the facility staff or agency staff do not admit that individual.  Deflection includes triage, redirection, and denial of admission.

 

"Department".  The Department of Human Services.

 

"Egregious Neglect".  A finding of neglect as determined by the Inspector General that represents a gross failure to adequately provide for, or a callous indifference to, the health, safety, or medical needs of an individual and results in an individual's death or other serious deterioration of an individual's physical condition or mental condition.  See also “Neglect” definition.

 

"Employee".  Any person who provides services at the facility or the Community Agency on or off site.  The service relationship can be with the individual, the facility or agency.  Also, "employee" includes any employee or contractual agent of the Department of Human Services or the Community Agency involved in providing or monitoring or administering mental health or developmental disability services.  This includes but is not limited to owners, operators, payroll personnel, contractors, subcontractors, and volunteers.  For purposes of this Part, employee also includes someone who is no longer working for an agency or facility but is the subject of an ongoing investigation for which OIG has jurisdiction.

 

"Facility" or "State-operated facility".  A mental health facility or developmental disabilities center operated by the Department.

 

"Final Investigative report".  The version of the investigative report that is in place after the reconsideration and response period has ended.

 

"Financial Exploitation".  Taking unjust advantage of an individual's assets, property or financial resources through deception, intimidation or conversion for the employee's, facility's or agency's own advantage or benefit.

 

"Finding".  The Office of Inspector General's determination regarding whether an allegation is substantiated, unsubstantiated or unfounded.

 

"Health Care Worker Registry" or "Registry".  The Illinois Department of Public Health’s Health Care Worker Registry created by the Nursing Home Care Act [210 ILCS 45].

 

“IDPH”.  The Illinois Department of Public Health.

 

"Imminent Danger".  A preliminary determination of immediate, threatened, or impending risk of illness, mental injury, or physical injury or deterioration to an individual's health that requires immediate action.

 

"Individual".  Any person receiving mental health services, developmental disabilities services, or both from a facility or agency, while either on-site or off-site.

 

"Insulting or provoking".  Contact that offends a reasonable sense of personal dignity.

 

"Mental Abuse".  The use of demeaning, intimidating or threatening words, signs, gestures, or other actions by an employee about an individual and in the presence of an individual or individuals that results in emotional distress or maladaptive behavior, or could have resulted in emotional distress or maladaptive behavior, for any individual present.

 

"Mitigating Circumstance". A condition that is attendant to a finding and does not excuse or justify the conduct in question but may be considered in evaluating the severity of the conduct, the culpability of the accused, or both the severity of the conduct and the culpability of the accused employee/facility/agency.

 

"Neglect". An employee's, agency's, or facility's failure to provide adequate medical care, personal care, or maintenance, and that, as a consequence, causes an individual pain, injury, or emotional distress, results in either an individual's maladaptive behavior or the deterioration of an individual's physical condition or mental condition, or places an individual's health or safety at substantial risk of possible injury, harm, or death.  See also “Egregious Neglect” definition.

 

"Non-accidental".  Occurring with volition or consciousness; not occurring by chance.

 

"OIG".  The Office of Inspector General of the Department.

 

“OIG Liaison”.  The Community Agency or facility staff who has been appointed to act as OIG’s investigative point of contact and who is responsible for coordinating the agency’s or facility’s initial incident response (see 59 Ill. Adm. Code 50.30(f)).

 

"Physical Abuse". An employee's non-accidental and inappropriate contact with an individual that causes Bodily Harm.  "Physical Abuse" includes actions that cause Bodily Harm as a result of an employee/facility/agency directing an individual or person to physically abuse another individual.

 

"Preponderance of the Evidence".  Proof sufficient to persuade the finder of fact that a fact sought to be proved is more likely true than not true.

 

“Program”.  Any DHS-licensed, DHS-funded, or DHS-certified service provided to persons with either mental illness or developmental disabilities by a Community Agency or by a State-operated facility.  Program includes, but is not limited to, day training, employment and workshop opportunities, and transportation services.

 

"Recommendation".  An admonition rendered by OIG, separate from a finding, that requires action by the facility, agency, or Department to correct a systemic issue, problem, or deficiency identified during an investigation.

 

“Referral”.  OIG directing an OIG-received complaint to another entity for possible investigation or Administrative Action.

 

"Required Reporter".  Any employee/facility/agency who suspects, witnesses, or is informed of an allegation of any one or more of the following: Mental Abuse, Physical Abuse, Sexual Abuse, neglect, or Financial Exploitation.

 

"Routine Programmatic Operations".  Refers to services provided as part of the individual's habilitation plan, treatment plan or as a regular or ongoing component of the Community Agency’s or facility's general services or practices.

 

"Secretary".  The leader of the Department.

 

"Sexual Abuse".  Any Sexual Contact or intimate physical contact between an employee and an individual, including an employee's coercion or encouragement of an individual to engage in sexual behavior that results in Sexual Contact, intimate physical contact, sexual behavior, or intimate physical behavior.  Sexual Abuse also includes:

 

an employee's actions that result in the sending or showing of Sexually Explicit Images to an individual via computer, cellular phone, electronic mail, portable electronic device, or other media, with or without contact with the individual; or

 

an employee's posting of Sexually Explicit Images of an individual online or elsewhere, whether or not there is contact with the individual.  Sexual Abuse does not include allowing individuals to, of their volition, view movies or images of a sexual nature or read text containing sexual content unless the individual's guardian prohibits the viewing of those movies or images or reading of that material.

 

"Sexual Contact".  Inappropriate Sexual Contact between an employee and an individual involving either an employee's genital area, anus, buttocks, or breasts or an individual's genital area, anus, buttocks, or breasts.  Sexual Contact also includes Sexual Contact between individuals that is coerced or encouraged by an employee.

 

"Sexually Explicit Images".  Includes, but is not limited to, any material that depicts nudity, sexual conduct, or sadomasochistic abuse, or that contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse.  This does not include those images contained in sex education materials used by employees to educate individuals.

 

"Substantiated". A Preponderance of the Evidence supports the allegation.

 

"Unfounded". No Credible Evidence supports the allegation.

 

"Unsubstantiated".  There is Credible Evidence, but less than a Preponderance of the Evidence, to support the allegation.

 

"Victim".  An individual who has been subjected to alleged abuse, neglect, or Financial Exploitation.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.20  Reporting an Allegation of Abuse, Neglect, or Financial Exploitation and Death Reports

 

a)         Reporting – by a Facility, Community Agency, or Employee

 

1)         If an employee witnesses, is told of, or suspects an incident of Physical Abuse, Sexual Abuse, Mental Abuse, Financial Exploitation, neglect, or a death has occurred, the employee, Community Agency, or facility shall report the allegation to the OIG Hotline according to the Community Agency's or facility's procedures.  The employee, Community Agency, or facility shall report the allegation immediately, but no later than the time frames specified in subsections (a)(2) and (3). Such an employee or representative of a Community Agency or facility shall be deemed the "Required Reporter" for purposes of this Part.  Such reporting shall additionally meet any requirements of 59 Ill. Adm. Code 115, 119 and 132 and Department administrative directives, as applicable.

 

2)         Within four hours after the initial discovery of an incident of alleged Physical Abuse, Sexual Abuse, Mental Abuse, Financial Exploitation or neglect, the Required Reporter shall report the following allegations by phone to the OIG Hotline:

 

A)        Any allegation of abuse by an employee;

 

B)        Any allegation of neglect by an employee, Community Agency, or facility;

 

C)        Any allegation of Financial Exploitation by an employee, Community Agency, or facility; and

 

D)        Any injury or death of an individual that occurs within a facility or Community Agency program when abuse or neglect may be suspected.

 

E)        At a minimum, Required Reporters to the OIG Hotline shall provide details concerning:

 

i)          Information about the victim, including name, date of birth, sex, disability, identification number, and/or social security number (if known);

 

ii)         Information about the incident, including what happened, when it happened, where it happened, how it happened, and the identification of all witnesses;

 

iii)        Information about the accused employee (if known), including name, contact information, and if the accused employee/facility/agency is presently working with or will be working with the victim; and

 

iv)        Information about the person initiating the complaint, including name, contact information, relationship to the victim, and the need for anonymity (if applicable).

 

3)         Within 24 hours after initial discovery of a death, the Required Reporter shall call the OIG Hotline and report (as described in Section 50.30):

 

A)        Any death occurring within 14 calendar days after discharge or transfer of an individual from an agency residential program or facility;

 

B)        Any death of an individual occurring within 24 hours after deflection from an agency residential program or facility;

 

C)        Any other death of an individual occurring within an agency residential program or facility or at any other site licensed, funded , or certified by the Department even though not alleged to be a result of abuse or neglect.

 

4)         Screening, delaying, or withholding reports of incidents or allegations of abuse or neglect from OIG is strictly prohibited. Failure to report incidents or allegations of abuse or neglect to OIG within the required timeframe is a Class A misdemeanor (see 20 ILCS 1305/1-17(k)(1)).

 

5)         Retaliation

It is a violation of Section 1-17(k)(3) of the Act for any employee or administrator of an agency or facility to take retaliatory action against an employee who acts in good faith in conformance with the employee's duties as a Required Reporter.

 

6)         Other Community Agency and facility requirements

 

A)        Reporting to OIG shall not relieve the Community Agency or facility from any statutory or regulatory reporting requirements applicable to the Community Agency or facility.  Authorized Representatives are therefore not restricted or prohibited from taking action to protect residents or patients in accordance with or as required by IDPH to ensure compliance with Intermediate Care Facility Providers for Developmental Disability (ICF/DD) standards, including, but not limited to:

 

i)          42 CFR 483.420, Condition of participation: Client protections; and

 

ii)         State Operations Manual Appendix J - Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-States-and-Regions-Items/Qso18-16-ICFIID.

 

B)        If the Authorized Representative, their designee, or the OIG Liaison reviews an agency's or facility's internal documents regarding an allegation of abuse, neglect, Financial Exploitation, or the death of an individual at the respective Community Agency or facility, they shall not delete, delay, withhold, limit, or otherwise restrict any of the information contained in the documents.  Information may be added by the Authorized Representative or their designee for clarification purposes only.  Failure to report incidents or allegations of abuse, neglect, or Financial Exploitation within the required timeframe is a Class A misdemeanor (see 20 ILCS 1305/1-17(k)(1)).

 

b)         OIG Hotline

The OIG Hotline (#1-800-368-1463) shall be communicated to individuals and guardians at the time of admission and the number shall be posted in plain sight at each Community Agency and facility location where individuals receive services.

 

c)         Other reports of allegations of abuse, neglect, Financial Exploitation, and deaths

 

1)         Any other person, individual, family member, guardian or advocate who witnesses, is told of, or suspects an incident of alleged abuse, neglect, Financial Exploitation, or a death of an individual has occurred, may report the incident to OIG by telephoning the OIG Hotline, or in writing by fax or other electronic reporting system offered by OIG to the OIG Hotline or mail at:

 

Department of Human Services

Office of Inspector General

901 Southwind Road

Springfield, Illinois  62703

 

2)         Notifications

 

A)        Within 3 working days after receipt of an allegation, OIG shall notify the Authorized Representative of the Community Agency or facility or their designee that an allegation has been received unless such notification compromises the integrity of the investigation, such as, an allegation involving the Authorized Representative or their designee.

 

B)        Within 24 hours after notification of an allegation, the Authorized Representative of the Community Agency or facility shall notify the victim or guardian (if applicable) and the accused employee that an allegation has been received.  If the Authorized Representative or designee is unable to reach the guardian by phone, a letter of notification shall be sent within 24 hours.

 

C)        Immediately, but no later than within 3 working days after receipt of an allegation, OIG shall also contact the complainant regarding the allegation.

 

d)         Training and technical assistance

 

1)         Agencies and facilities shall have a policy detailing procedures for reporting allegations of abuse, neglect, Financial Exploitation, and deaths as set forth in Sections 50.10 and 50.20.

 

2)         All employees, as defined in Section 50.10, shall be trained in Part 50 requirements upon being hired and at least biennially thereafter.

 

3)         Each facility and Community Agency is required to have an employee who is designated as the OIG Liaison.

 

4)         Community Agency or facility employees designated as OIG Liaisons or whose duties include completing the initial incident response as set forth in Section 50.30(f) are required to take OIG’s Section 50.30(f) training.

 

5)         Any employee, Community Agency, or facility may request training or technical assistance from OIG in identifying, reporting, investigating, and preventing abuse, neglect, Financial Exploitation, reporting of deaths, or participation in applicable OIG-sponsored training as referenced in Section 1-17(h) of the Act.

 

e)         Misleading reports

Nothing in this Part protects persons who knowingly make false or misleading reports from disciplinary and other actions available to either the Community Agency or facility.  Nothing in this Part prohibits OIG, other enforcement authorities, or any employee jeopardized by such reporting from pursuing any and all allowable remedies.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.30  Responsibilities of OIG for Intake Assessment

 

a)         Availability of OIG

OIG shall be available 24 hours a day to assess reports of allegations of abuse, neglect, Financial Exploitation, or the death of an individual and provide any technical assistance with making the report.

 

b)         Responsibility of OIG for receiving the report

OIG staff receiving the report of the allegation are responsible for assessing, based on the information received at intake, whether the allegation could constitute abuse, neglect, or Financial Exploitation and whether OIG has the authority to investigate in accordance with the Act.  Absent extenuating circumstances, OIG shall make these assessments within one day after receiving the report.

 

c)         Reports involving routine programmatic, licensure or certification matters

 

1)         OIG shall have no supervision over or involvement in routine programmatic, licensure, or certification operations of the Department. (Section 1-17(f) of the Act)

 

2)         If the reported allegation relates to licensure or certification standards or Routine Programmatic Operations and is deemed not to be abuse, neglect, or Financial Exploitation, OIG shall refer the allegation to the appropriate agency or unit of government.

 

d)         Investigations by two or more State agencies

When two or more State agencies could investigate an allegation of abuse or neglect at a Community Agency or facility, OIG shall not conduct an investigation that is redundant to an investigation conducted by another State agency (see Section 1-17(f) of the Act) unless requested in writing by another State agency in accordance with Section 1-17(e) of the Act.

 

e)         Referrals to the Illinois State Police/Local Law Enforcement

In certain instances, it is appropriate or required for OIG to refer allegations to other entities.

 

1)         Section 1-17(l) of the Act requires OIG to refer an allegation to the Illinois State Police or ensure that notification is made to the respective local law enforcement entity for investigation within 24 hours after determining that there is Credible Evidence indicating that a criminal act may have been committed in connection with an allegation of abuse, neglect, Financial Exploitation, or death of an individual served by a facility or agency.

 

2)         When an allegation concerns the actions of a Community Agency or facility employee, but the described conduct does not rise to the level of a reportable offense (e.g., an allegation that an employee was late to work), where appropriate, OIG shall forward the allegation to the appropriate Authorized Representative.

 

3)         When an allegation does not concern the actions of either a Community Agency or facility employee, the intake investigator shall transfer or refer the caller to the appropriate local, State, or federal agency or organization, as appropriate.

 

4)         When OIG has jurisdiction over an allegation, it may make a Referral of that allegation to the involved facility or agency where, among other factors:

 

A)        The primary facts relevant to the allegation have already been identified and additional investigative work by OIG would be of minimal value;

 

B)        The agency or facility is better positioned to immediately address the allegation;

 

C)        The allegation, if true, would be unlikely to result in a report to the Registry (e.g., Mental Abuse, non-egregious neglect); or

 

D)        The allegation does not indicate an emergency situation or that an individual is in Imminent Danger.

 

f)         Authorized Representative

If the allegation of abuse, neglect, or Financial Exploitation is within the jurisdiction of OIG, the Authorized Representative of the involved Community Agency or facility or their designee shall:

 

1)         Ensure the immediate health and safety of involved individuals and employees, including ordering medical examinations and healthcare, when applicable, and immediately contacting victim services, when applicable (a listing of victim services is available by contacting the OIG Hotline); and

 

2)         Remove accused employees from having contact with individuals at the facility or agency when there is Credible Evidence supporting the allegation of abuse, pending the outcome of any further investigation, prosecution, or disciplinary action against the employee or until OIG independently determines that the allegation against the employee will be unsubstantiated or unfounded in OIG’s Final Investigative Report (see 405 ILCS 5/3-210); and

 

3)         Ensure OIG is notified; and

 

4)         Unless otherwise directed by OIG, initiate the preliminary steps of the investigation by a Section 50.30(f)-trained OIG Liaison.  This may include the need to:

 

A)        Secure the scene of the incident and preserve evidence, if applicable;

 

B)        Identify and separate potential witnesses, and take statements when applicable;

 

C)        Identify and record the names of all persons at the scene at the time of the incident and, when relevant, those who had entered the scene prior to the scene being secured;

 

D)        Secure all relevant documents and physical evidence, such as clothing, if applicable; and

 

E)        Photograph the scene of the incident and the individual's injury, when applicable.

 

g)         OIG may determine what further action, if any, is necessary to protect the safety of any individual, secure the scene of the alleged incident, preserve the evidence, and maintain the integrity of the investigation.  Such action may include immediate emergency referrals (such as medical or housing services), the notification of law enforcement officials, requesting hospital services or contacting the Department or other State agencies for assistance.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.40  General Responsibilities

 

a)         OIG shall notify the Authorized Representative when OIG opens an investigation and the Authorized Representative will then notify the victim or guardian (if applicable) and the accused employee, in writing, when an investigation will be opened.

 

b)         If an OIG investigation results in a substantiated finding of Physical Abuse, Sexual Abuse, Egregious Neglect, or Financial Exploitation by an employee, it shall result in the accused employee's identity and the OIG finding being reported to the Registry in accordance with Section 50.90.

 

c)         OIG investigations may include, but are not limited to, site visits, telephone contacts, requests for written statements and responses from the Community Agency or the facility.

 

d)         Nothing in this Part precludes a Community Agency or facility from taking immediate action that may include protecting the individuals from danger or harm, notifying appropriate law enforcement officials, or taking any other Administrative Action deemed necessary by the Community Agency or facility, unless otherwise directed by OIG. The agency shall request approval from OIG prior to conducting its own full investigation beyond what is outlined in Section 50.30(f)(4).

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.50  Conducting Investigations

 

a)         In accordance with investigative best practice, OIG shall, when feasible, and to the extent these actions have not already been fully addressed by facility or agency staff:

 

1)         Ensure that the victim is not in Imminent Danger;

 

2)         Protect the integrity of the investigation at all times;

 

3)         Secure the scene of the incident;

 

4)         Identify and separate witnesses;

 

5)         Preserve and secure all evidence;

 

6)         Obtain statements from persons involved, including victims, accused employees, and witnesses through in-person interviews, by telephone, or by video; and

 

7)         Obtain copies of pertinent documents relating to the investigation, i.e., progress notes, incident or injury reports, patient or resident records, photographs, etc.

 

b)         Confidentiality

Any allegations or investigations of reports of abuse, neglect, and Financial Exploitation shall remain confidential until a final report is completed (Section 1-17(m) of the Act).  The identity of any person as a complainant shall remain confidential in accordance with the Freedom of Information Act [5 ILCS 140] or unless identification is authorized by the complainant.  Information concerning diagnosis and treatment for substance use disorder shall be disclosed to OIG by Community Agencies only in accordance with federal regulations at 42 CFR 2.  Information concerning tests for human immunodeficiency virus (HIV) and diagnosis and treatment for acquired immune deficiency syndrome (AIDS) shall be disclosed to OIG by Community Agencies only in accordance with the AIDS Confidentiality Act [410 ILCS 305].  All personal health related information contained in OIG investigative reports shall remain confidential in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191) (45 CFR 160, 162 and 164). All personal information concerning an employee or recipient shall be protected from disclosure in accordance with the Personal Information Protection Act [815 ILCS 530], except as necessary to complete reporting of an employee’s name to the Registry or for other required reporting to investigatory, law enforcement, and/or licensing authorities.

 

c)         All investigations shall be conducted in a manner that respects the dignity and human rights of all persons involved.

 

d)         Every OIG Investigator authorized to conduct investigations shall receive ongoing training regarding OIG Investigations of Alleged Abuse, Neglect, or Financial Exploitation in State-Operated Facilities and Community Agencies (59 Ill. Adm. Code 50).  Additionally, every OIG Investigator authorized to conduct investigations at community agencies shall receive ongoing training regarding Standards and Licensure Requirements for Community-Integrated Living Arrangements (59 Ill. Adm. Code 115); Administration of Medication in Community Settings (59 Ill. Adm. Code 116); and Minimum Standards for Certification of Developmental Training Programs (59 Ill. Adm. Code 119).

 

e)         Representation during Interviews

An employee may request representation at an interview with OIG if the employee has reasonable grounds to believe that the interview may be used to support disciplinary action against them.  If the investigator denies the request, the employee's statement may not be used in any subsequent disciplinary proceeding against that employee.  No representative of the agency or facility that employs the interviewee may be present at an investigatory interview. Union representation for AFSCME employees, Council 31 (State-operated facilities), shall be granted in accordance with the applicable union contract.

 

f)         No person shall interfere with or obstruct an OIG interview or investigation.  Such conduct is a violation of Section 1-17(i)(2) of the Act.

 

g)         OIG shall be granted access, for the purpose of investigating abuse, neglect, or Financial Exploitation, to any facility or program operated, funded, licensed, or certified by the Department that is subject to the provisions of Section 1-17 of the Act.

 

1)         When advance notice to an Authorized Representative or their designee is not provided, OIG shall, on arrival at the Community Agency or facility site, request that an on-duty and on-site employee notify the Authorized Representative or their designee of OIG's arrival.

 

2)         Facilities and community agencies shall obtain and provide OIG with all written statements and any requested documents in a timely manner.

 

h)         If OIG determines that:

 

1)         An individual's health or safety is in Imminent Danger, the Inspector General shall immediately notify the Secretary or their designee and the Authorized Representative of the Community Agency or facility or their designee.

 

2)         There is reason to believe that a violation of an existing Department rule may have occurred, OIG shall notify the Authorized Representative of the Community Agency or their designee and the appropriate Department division.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.60  OIG Procedures for Investigative Reports, Referrals, Reconsideration, and Clarification Requests

 

a)         Processing Investigative Reports

 

1)         When OIG determines that abuse, neglect, or Financial Exploitation of an individual is substantiated against an employee, OIG shall note in the investigative report any Aggravating or Mitigating Circumstances as those terms are defined in this Part.

 

2)         When OIG substantiates neglect against an employee, OIG shall make a determination in the investigative report if the neglect is egregious, as defined herein.

 

3)         Finalizing Investigative Reports and Notifications to Community Agencies and Facilities

 

A)        After determining the finding, for substantiated cases and unsubstantiated cases, as well as any case containing an OIG recommendation, OIG shall notify the Authorized Representative of the Community Agency or facility by submitting a copy of the investigative report to them.  The Authorized Representative shall be responsible for maintaining the confidentiality of the investigative report consistent with State and federal law.  For unfounded cases without recommendations, a letter of finding will be sent to the facility or agency.

 

B)        The Community Agency or facility shall submit a written response when required as described in Section 50.80.

 

4)         After OIG completes its investigative report, OIG shall notify, in addition to the facility or agency, the following parties of its finding:

 

A)        the complainant;

 

B)        the individual who was allegedly abused, neglected, or financially exploited or their legal guardian (if applicable); and

 

C)        the person(s) alleged to have committed the offense. 

 

5)         The notice provided to the following parties shall identify the outcome of the investigation and include a statement of the right to request clarification or reconsideration of the finding: 

 

A)        the individual who was allegedly abused, neglected, or financially exploited or their legal guardian (if applicable);

 

B)        the person(s) alleged to have committed the offense; and

 

C)        the facility or agency.

 

6)         In substantiated cases, OIG shall provide the perpetrator and the victim or guardian with a redacted copy of the investigative report.

 

b)         Referrals

With respect to allegations within OIG’s jurisdiction that OIG refers to a Community Agency or facility, after the Community Agency or facility has completed its inquiry, the agency or facility shall notify the following parties of the outcome:

 

1)         the complainant;

 

2)         the individual who was allegedly abused, neglected, or financially exploited, or their legal guardian (if applicable); and

 

3)         the person(s) alleged to have committed the offense.

 

c)         Reconsideration and clarification requirements 

Requests that OIG either clarify or reconsider its findings or recommendations must be submitted within 15 calendar days after receipt of the report or notification of the findings and/or recommendations.

 

1)         All clarification and reconsideration requests must be in writing.

 

2)         Community Agency or facility clarification and reconsideration requests must be on letterhead signed by the Authorized Representative.

 

3)         All clarification and reconsideration requests must clearly identify the nature of the request and reconsideration requests must clearly indicate the specific findings and/or specific recommendations to be considered.

 

4)         Reconsideration requests shall be subject to a multi-layer review and shall include at least one reviewer who did not participate in the investigation or approval of the original investigative report.

 

5)         If a reconsideration request is denied or after clarification has been provided, the Community Agency or facility shall submit a written response as set forth in Section 50.80.

 

6)         If OIG determines further investigation is necessary based on the request for reconsideration or clarification of the findings, the investigation shall be reopened and an amended investigative report shall be issued.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.70  Completed Investigations

 

a)         OIG's investigation shall be considered final 30 calendar days after OIG provides notice to the facility or agency as required in Section 50.60(a)(3)(A), except where OIG has granted a request for clarification or reconsideration.

 

b)         Distribution of Completed Investigative Reports

 

1)         Within 10 calendar days after the transmittal of a Completed Investigative Report substantiating an allegation, finding an allegation is unsubstantiated, or if a recommendation is made, OIG shall provide the investigative report to the Secretary and to the director of the facility or agency where the abuse, neglect or Financial Exploitation occurred.  The director of the facility or agency shall be responsible for maintaining the confidentiality of the investigative report consistent with State and federal law.  (Section 1-17(m) of the Act)

 

2)         OIG shall provide copies of all Completed Investigative Reports within 10 calendar days to the federally-mandated Protection and Advocacy System for the State of Illinois, and the Illinois Guardianship and Advocacy Commission.

 

3)         OIG shall provide a Completed Investigative Report of all substantiated cases from Department facilities serving individuals with developmental disabilities within 10 calendar days to IDPH and the Department's Division of Developmental Disabilities.

 

4)         OIG shall provide a Completed Investigative Report of all substantiated cases from Department facilities serving individuals with mental illness within 10 calendar days to the Department's Division of Mental Health.

 

5)         If OIG substantiates abuse, neglect, or Financial Exploitation at a Community Agency serving individuals with developmental disabilities or recommends Administrative Action, the Completed Investigative Report shall be provided to the Department's Division of Developmental Disabilities within 10 calendar days.

 

6)         If OIG substantiates abuse, neglect, or Financial Exploitation at a Community Agency serving individuals with mental illness or recommends Administrative Action, the Completed Investigative Report shall be provided to the Department's Division of Mental Health within 10 calendar days.

 

7)         OIG shall provide a Completed Investigative Report of all cases of abuse, neglect, or Financial Exploitation in community agencies within 10 calendar days after closure to the Department's Bureau of Accreditation, Licensure and Certification.

 

8)         OIG shall provide a Completed Investigative Report in all cases substantiating abuse, neglect, or Financial Exploitation against a Department employee within 10 calendar days to the Department's Bureau of Labor Relations.

 

9)         OIG shall provide a Completed Investigative Report substantiating abuse, neglect, or Financial Exploitation within 10 calendar days to the Department's Office of General Counsel.

 

10)        When an accused employee in a substantiated case is licensed by the Department of Financial and Professional Regulation, OIG shall provide a copy of the Completed Investigative Report to that agency.

 

c)         OIG shall inform the accused employee of the results of a reconsideration or clarification request or of any changes in the finding that resulted from such a request within 15 calendar days.

 

d)         If the finding substantiates Physical Abuse, Sexual Abuse, Egregious Neglect, or Financial Exploitation, OIG shall report the identity of the accused employee and its finding to IDPH's Registry.  OIG shall notify the accused employee of the right to appeal the action that will report OIG’s finding to the Registry as described in Section 50.90.

 

e)         Release of Investigative Reports

 

1)         All investigative reports prepared by OIG shall be considered confidential and shall not be released except as provided by the law of this State or as required under applicable federal law.  (Section 1-17(m) of the Act)

 

2)         Substantiated findings shall be released in accordance with the Act, the Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110] and the Freedom of Information Act [5 ILCS 140].

 

3)         Unsubstantiated and unfounded investigative reports shall not be disclosed except as allowed pursuant to Section 6 of the Abused and Neglected Long Term Care Facility Residents Reporting Act [210 ILCS 30] or pursuant to a valid court order. (Section 1-17(m) of the Act)

 

4)         The identity of any person as a complainant shall remain confidential in accordance with the Freedom of Information Act [5 ILCS 140], or unless authorized by the complainant in writing.  The identity of a Required Reporter shall only remain confidential under certain circumstances as determined by OIG on a case-by-case basis.

 

f)         Release of Unredacted Investigative Reports and Raw Data

Unredacted investigative reports, as well as raw data, may be shared, upon written request, with local law enforcement, state's attorney's offices, and coroner's offices. [20 ILCS 1305/1-17(m)]

 

g)         Recommendations for Sanctions

 

1)         The Inspector General may recommend to the Secretary of the Department of Human Services that sanctions be imposed against facilities or community agencies to protect residents, including:

 

A)        appointment of on-site monitors or receivers;

 

B)        transfer or relocation of an individual or individuals;

 

C)        closure of units; and

 

D)        termination of any one or more of the following:

 

i)          Department licensing;

 

ii)         Department funding; or

 

iii)        Department certification.

 

2)         The Inspector General may seek the assistance of the Attorney General of Illinois or the State's Attorney for imposing sanctions listed in subsection (g)(1). [20 ILCS 1305/1-17(r)]

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.80  Written Responses

 

There are multiple circumstances where OIG requires Community Agencies or Facilities to provide a written response to an investigative report or referral:

 

a)         If OIG substantiates abuse, neglect, or Financial Exploitation, or makes one or more recommendations in its investigative report, the Community Agency or facility is required to submit a written response on a prescribed form to the respective DHS program division.  The prescribed form will be sent to the Community Agency or facility.

 

1)         The written response shall address the actions that it will take or has taken to protect individuals from abuse, neglect, or Financial Exploitation, prevent recurrence, and eliminate problems.  Each substantiated finding or recommendation shall be addressed separately.

 

2)         The written response shall include the following information:

 

A)        Investigative findings and/or recommendations by OIG;

 

B)        Specific actions for each finding or recommendation, identifying the persons the actions address, if any;

 

C)        Persons responsible for implementing each action;

 

D)        For each action, the actual or anticipated completion date; and

 

E)        Signature of the Authorized Representative or, if the Authorized Representative is named in the investigation, the President of the Board of Directors.

 

3)         The written response shall be submitted to the respective Department program division within 30 calendar days after receiving the investigative report. 

 

4)         If a reconsideration request is received by OIG, the written response is due within 15 calendar days after the following:

 

A)        The date the Community Agency or facility is notified that the reconsideration is denied;

 

B)        The date the Community Agency or facility receives a revised cover letter based on a granted reconsideration indicating the finding remains substantiated, or there are recommendations.

 

5)         If a reconsideration request is granted and the revised cover letter indicates the finding is unsubstantiated or unfounded and there are no recommendations, a written response is no longer required.

 

b)         With respect to allegations within OIG’s jurisdiction that OIG refers to a Community Agency or facility, the Community Agency or facility shall submit a written response on a prescribed form to OIG and the respective DHS program division within 45 calendar days after the Community Agency or facility has completed its inquiry.  The prescribed form will be sent to the Community Agency or facility.  The written response shall address any action that the Community Agency or facility took or will take to protect individuals from abuse, neglect, or Financial Exploitation.

 

c)         Division Responsibilities

 

1)         The respective DHS program division shall promptly review the submitted written response and may require the Community Agency or facility to plan or take additional Administrative Actions in response to the findings and/or recommendations.

 

2)         When the division agrees with the written response, the division's director, or designee, shall approve the written response by signing and dating the form.  The actions listed on the written response do not need to be completed for the division to approve it.

 

3)         To ensure timely implementation of identified actions, the division shall promptly do the following:

 

A)        Notify the Community Agency, facility, and OIG of the approval; and

 

B)        Send to OIG the approved written response and any documentation received that confirms implementation of the designated actions.

 

d)         Implementation Status Reports

 

1)         Community Agency or Facility

 

A)        If the actions listed in a written response to an OIG investigative report have not been completed by the time the division notifies the Community Agency or facility that the written response is approved, the Authorized Representative shall send OIG an implementation status report within 30 calendar days of the date the written response was approved.

 

B)        The implementation status report shall detail the status of each Administrative Action taken or planned, including the actual or anticipated completion date.

 

C)        An updated implementation status report must be sent to OIG every 60 calendar days thereafter until all Administrative Actions have been completed.

 

D)        Upon completion of actions for which at least one implementation status report was submitted, the Community Agency or facility shall promptly do the following:

 

i)          Notify OIG in writing of the completion date and the names of any persons who were the subject of the action; and

 

ii)         Submit to OIG documentation confirming implementation of each of those actions.

 

2)         OIG may review approved written responses and notify any Community Agency or facility when an implementation status report is overdue. Failure of the Community Agency or facility to comply with implementation status reports is a violation of the statute. [20 ILCS 1305/1-17(i)]

 

e)         Compliance Reviews

 

1)         OIG shall conduct a review of the following:

 

A)        Any written response in which an action takes more than 120 calendar days after approval to complete;

 

B)        A random sample of written responses to OIG investigative reports that have been approved by the division. The sample shall be chosen at least quarterly, shall be at least 10% of all written responses approved during that time period, and shall be proportionate by Community Agency and facility cases among the approved written responses; and

 

C)        A random sample of written responses to OIG referrals that have been approved by the division.  The sample shall be chosen at least quarterly, shall be at least 10% of all written responses approved during that time period, and shall be proportionate to the respective number of Community Agency and facility cases among the approved written responses.

 

2)         OIG shall determine compliance with the completed action as approved, which may include, but not be limited to, written and verbal requests for documentation, phone contacts or site visits.

 

3)         Community Agencies and facilities shall fully cooperate with OIG during these compliance reviews, including providing access as defined in Section 50.10.  Cooperation with compliance reviews additionally includes the following:

 

A)        Arranging for interviews as requested and providing copies of any personnel action taken as a result of the findings or recommendations; and

 

B)        Responding promptly to OIG requests for documentation and related information.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.90  Reporting by the Inspector General to the Illinois Department of Public Health's Health Care Worker Registry

 

a)         An employee's identity and the investigative finding will not be reported to the Registry when:

 

1)         OIG has issued an amended investigative report, as a result of a reconsideration, that no longer contains a substantiated finding;

 

2)         The Inspector General requests a stipulated disposition of the investigative report and the Secretary of the Department of Human Services agrees with the requested stipulated dismissal; or

 

3)         The employee has notified OIG in writing, including any supporting documentation, that the employee is formally contesting an adverse employment action resulting from a substantiated finding by a complaint filed with the Illinois Civil Service Commission or has filed an action pursuant to any applicable collective bargaining agreement; or

 

4)         The employee has requested a hearing to appeal the reporting of the employee's name to the Registry and the hearing has not been completed.

 

b)         After OIG's investigative report becomes a Final Investigative Report, OIG shall notify the employee against whom it has substantiated Physical Abuse, Sexual Abuse, Egregious Neglect, or Financial Exploitation that the employee's identity and the investigative finding will be reported to the Registry maintained by IDPH.

 

c)         The notification to the employee of the decision to report the employee's name and OIG's investigative finding to the Registry shall be provided to the last known address of the employee by certified mail and shall include:

 

1)         A clear and concise statement of the grounds on which the report to the Registry is based.

 

2)         Information on the opportunity to request a Registry hearing to contest the decision to report the employee's name and OIG's investigative finding to the Registry, or in lieu of a request for a hearing, the opportunity to submit a written response to the decision to report the employee's name and OIG's investigative finding to the Registry.

 

3)         Explanation of the mechanism by which the employee can request a hearing.

 

d)         If the employee requests a Registry hearing:

 

1)         The employee and the Department may provide documentary, physical and oral evidence at the hearing.

 

2)         The Department shall be required to establish by a Preponderance of the Evidence that the Office of the Inspector General's finding of Physical Abuse, Sexual Abuse, Egregious Neglect, or Financial Exploitation warrants reporting to the Registry.

 

3)         Hearings under this Section shall be conducted in accordance with the Department's rules on the conduct of hearings and appeals at 89 Ill. Adm. Code 508.  In the event there is a conflict between 89 Ill. Adm. Code 508 and this Part, the provisions of this Part shall prevail.

 

4)         If applicable, in addition to notice to OIG, the employee must give written notice to the Department's Division of Administrative Hearings, Department of Human Services, Office of the General Counsel, 69 W. Washington St., 4th Floor, Chicago IL  60602, that the employee's initiated the grievance or arbitration process and the date of initiation, or has filed an action with the Civil Service Commission.  The notice must include a copy of the grievance or the filing with the Civil Service Commission.

 

5)         The employee may request a hearing no later than 30 calendar days after receipt of the notice issued pursuant to Section 50.70(c).  All notices sent to the employee’s last known address via USPS certified mail will be deemed to be received on the 4th working day after mailing.  The employee shall file an appeal by email at DHS.BAH@illinois.gov or in writing to the Division of Administrative Hearings, Department of Human Services, Office of the General Counsel, 69 W Washington St, 4th Floor, Chicago IL  60602, requesting a hearing and stating out the reasons why the proposed report to the Registry is not warranted.

 

6)         If the employee requests an administrative hearing, the employee shall be granted an opportunity to appear before an administrative law judge to present reasons why the employee’s name should not be reported to the Registry.  The Department shall bear the burden of presenting evidence that establishes, by a Preponderance of the Evidence, that the substantiated finding warrants reporting to the Registry.  After considering all the evidence presented, the administrative law judge shall make a recommendation to the Secretary as to whether the substantiated finding warrants reporting the name of the employee to the Registry.  The Secretary shall render the final decision.

 

e)         If the employee does not request a hearing or if the hearing results in a decision that the reporting of OIG's finding to the Registry is warranted, OIG shall report the name of the employee to the Registry maintained by IDPH and notify the employee of the report.

 

f)         OIG's report to the Registry shall include:

 

1)         The identity of the employee, including the employee's social security number, and identification of the substantiated finding that resulted OIG’s reporting of the finding to the Registry;

 

2)         The final decision from the Department's Registry hearing, if one was held; and

 

3)         A brief statement from the reported employee if the employee chooses to make a statement.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)

 

Section 50.100  Removal of an OIG Finding from the Illinois Department of Public Health's Health Care Worker Registry

 

a)         Pursuant to 20 ILCS 1305/1-17s(5), if an action taken by an employer against an employee as a result of a finding of physical abuse, sexual abuse, or egregious neglect is overturned through an action filed with the Illinois Civil Service Commission or under any applicable collective bargaining agreement and if that employee's name has already been sent to the Registry, the employee's name shall be removed from the Registry..

 

b)         An employee may petition, in writing, the Department of Human Services for removal of the finding against the employee at any time after OIG has reported the finding to the Registry, but not more than once in every 12 months.

 

c)         The employee shall file the petition by email at DHS.BAH@illinois.gov or in writing to the Division of Administrative Hearings, Department of Human Services, Office of the General Counsel, 69 W Washington St, 4th Floor, Chicago IL  60602.

 

d)         OIG shall conduct an investigation into the petition.

 

e)         Following the investigation, the Department's Division of Administrative Hearings shall conduct a hearing in accordance with 89 Ill. Adm. Code 508 and inform the Department of its decision.

 

f)         The parties may jointly request that the administrative law judge consider a stipulated disposition of the proceedings, and if the Secretary agrees with the stipulated disposition, a hearing need not take place.

 

g)         At the hearing, the petitioner shall have the burden to demonstrate by a preponderance of evidence that removal of the finding against the employee from the Registry is in the public interest.

 

h)         The hearing officer shall take into account, but not be limited to, the following considerations:

 

1)         Statement of the nature of the Physical Abuse, Sexual Abuse, Egregious Neglect, or Financial Exploitation for which the finding was placed on the Registry;

 

2)         Evidence that the petitioner is now rehabilitated, trained, or educated and able to perform duties in the public interest;

 

3)         Evidence of the petitioner's conduct since OIG’s finding was reported to the Registry; and

 

4)         Evidence of the petitioner's candor and forthrightness in presenting information in support of the petition.

 

i)          The Inspector General shall, upon receiving the Department's hearing decision, request the Department of Public Health to remove its finding from the Registry when:

 

1)         The hearing decision finds that it is in the public interest to do so; or

 

2)         The parties have jointly requested the administrative law judge consider a stipulated disposition of the proceeding and the Secretary agrees with the stipulated disposition.

 

(Source:  Amended at 47 Ill. Reg. 5663, effective April 4, 2023)