Abuse & Neglect

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Page last updated: 11/19/07

The P&A System came into being as a response to concern about abuse and neglect in institutions for individuals with developmental disabilities. (see history) To this end, P&As were granted broad access rights to institutions and records for purposes of investigating cases of abuse and neglect. This authority has increasingly been expanded to include community and other settings in which individuals - regardless of type of disability - reside. (see also Restraint & Seclusion)

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Abuse and Neglect Definitions

Abuse: any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly or intentionally and which caused, or may have caused, injury to a person with disabilities Neglect: a negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused, or may have caused, injury to an individual served or which placed an individual at risk of injury, and includes an act or omission such as the failure to carry out an appropriate individual program plan or treatment plan, failure to provide adequate nutrition, clothing or health care or the failure to provide a safe environment. * as defined in the PAIMI Act and in regulations implementing the DD Act.

SAMHSA Report on State Regulation of Residential Facilities for Children with Mental Illness (2006)

SAMHSA Report on State Regulation of Residential Facilities for Adults with Mental Illness (2006)

Restraint and Seclusion (July 2006)

June 2005: May a covered entity disclose PHI to a Protection and Advocacy system where the disclosure is required by law? (FAQ #909, published by the Department of Health and Human Services)

December 2004: Rights of minors to claim privilege to deny access to records under HIPAA:  Q&A by Center for Public Representation

May 2004: CMS' State Operations Manual - provides the agency's regulations, policies and protocols concerning federal and state agency abuse and neglect oversight and investigations (The CMS protocols and policies will be useful to advocates in developing their own policies and in evaluating state and federal investigations.) The following sections, among others, may be of particular interest:

Chapter 3 (sanctions against non-complying providers, complaint investigations, confidentiality of agency records)
Appendix A-AA (regulations and interpretative guidance for hospitals and, beginning after p. A-196, for psychiatric hospitals, including restraint and seclusion standards)
Appendix J (investigation procedures, regulations and guidance re ICF/MRs)

December 2003: CMS Directive to State Survey Agencies on Enforcement of Restraint and Seclusion Regulations for Psychiatric Residential Treatment Facilities for Persons under 21. The Directive provides interpretative guidance on the regulations and sets out policy on enforcing requirements on reporting of incidents to P&As, complaint investigations and monitoring of facilities.

May 2001: HHS Office of Inspector General Report on State Abuse and neglect laws -- describes the important components of a State system for identification, tracking, investigation and resolution of abuse incidents. Advocates might use the report as a guide to assess the adequacy of state laws on abuse and neglect.

April 2001: Analysis of State Abuse and Neglect Investigation Policies, Regulations and Statutes -- examines the P&A’s role in designing detailed procedures and safeguards regarding the investigation of abuse and neglect by other agencies.

October 1999: Statement on CMS policy regarding complaint investigations, including prioritization of complaints

June 1999: Involuntary Commitment of Nursing Facility Residents and Other Inappropriate Uses of Mental Health Institutions by Nursing Facilities

February 1999 :The Legal Rights of Prisoners with Mental Disorders -- discusses advocacy strategies for this population, with reference to constitutional principles and elements of the prison mental health system.

P&A Investigation Reports - Selected Web Site Links