CHAPTER He-E 700  ADULT PROTECTION SERVICES PROGRAM

 

Statutory Authority: RSA 161-F:55

 

REVISION NOTE:

 

            Document #10179, effective 9-1-12, readopted with amendments Chapter He-E 700, formerly entitled “Adult Protection Program” and containing Part He-E 701 through Part He-E 709.  Document #10179 made extensive changes to the wording, format, structure, and numbering of those provisions, creating a single Part He-E 701 in Chapter He-E 700, now entitled “Adult Protective Services Program.”

 

            Document #10179 supersedes all prior filings affecting the provisions in the former Chapter He-E 700.  The prior filings affecting the former Chapter He-E 700 include the following documents:

 

            #5008, eff 11-27-90, EXPIRED 11-27-96

            #6867, eff 10-9-98

            #8727, INTERIM, eff 10-9-06, EXPIRED 4-7-07

            #8868, eff 4-19-07

       

PART He-E 701  OVERVIEW

 

          He-E 701.01  Purpose.  The purpose of the adult protective services program is to:

 

          (a)  Receive and investigate reports of abuse, neglect, self-neglect or exploitation of incapacitated adults;

 

          (b)  Provide protective services; and

 

          (c)  Maintain the department of health and human services, bureau of elderly and adult services (BEAS) state registry in accordance with RSA 161-F:49.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.02  Definitions.

 

          (a)  “Abuse” as defined in RSA 161-F:43, II, means any one of the following:

 

(1)  “Emotional abuse” means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in the mental anguish or emotional distress of an incapacitated adult;

 

(2)  “Physical abuse” means the use of physical force which results or could result in physical injury to an incapacitated adult; or

 

(3)  “Sexual abuse” means contact or interaction of a sexual nature involving an incapacitated adult without his or her informed consent.

 

          (b)  “Administrative appeals unit (AAU)” means the unit of the department that receives appeal requests, schedules proceedings, conducts pre-hearing conferences and hearings and issues decisions for the department.

 

          (c)  “Adult protective services program (APS)” means the program which encompasses all the tasks and responsibilities completed in accordance with the adult protection law, RSA 161-F:42-57.

 

          (d)  “Adult protective social worker (APSW)” means the individual employed by BEAS and certified by the NH department of administrative services, division of personnel, to carry out all tasks and responsibilities defined in statute, administrative rule and program policy as they relate to the adult protective services program.

 

          (e)  “Allegation” means an assertion that an incapacitated adult has been abused, neglected, exploited or has self-neglected.

 

          (f)  “Alleged perpetrator” means an individual who is reported to have abused, neglected or exploited an incapacitated adult.

 

          (g)  “Alleged victim” means an adult who is incapacitated at the time of the incident alleging abuse, neglect, self-neglect or exploitation.

 

          (h)  “Bureau administrator,” for purposes of this rule, means the administrator of BEAS, or his or her designee, appointed by the commissioner of the department of health and human services to carry out the responsibilities described in RSA 161-F:42-57.

 

          (i)  “Bureau of elderly and adult services (BEAS)” means the New Hampshire department of health and human services bureau of elderly and adult services.

 

          (j)  “BEAS State Registry (state registry)” means a database containing information on founded reports of abuse, neglect or exploitation of incapacitated adults by a paid or volunteer caregiver, guardian or agent acting under the authority of any power of attorney (POA) or any durable power of attorney (DPOA) pursuant to RSA 161-F:49.

 

          (k)  “Case management” means the tasks associated with the ongoing assessment, person-centered planning, coordination, and monitoring of services provided to an adult protection program client by an APSW.

 

          (l)  “Client” means the incapacitated adult for whom a case has been opened in the adult protective services program pursuant to He-E 701.17 and who is receiving protective services as described in He-E 701.18.

 

          (m)  “Collateral contacts” means individuals who have either witnessed or have information about the alleged victim’s situation that could aid the investigator in determining the facts necessary to complete a protective investigation in accordance with RSA 161-F:42-57 and He-E 700.

 

          (n)  “Commissioner” means the commissioner of the department of health and human services, or his or her designee.

 

          (o) “Counseling” means the review and assessment, with the protection program client, of the circumstances which led to his or her need for protection, and the provision of guidance and support in order to strengthen his or her ability to ameliorate the protective concerns.

 

          (p)  “Date of approval” means the date that the completed protective investigation or disposition is approved by the supervisor.

 

          (q)  “Determination” means the finding following a protective investigation completed pursuant to RSA 161-F:42-57, that the alleged abuse, neglect, self-neglect or exploitation of an incapacitated adult is either founded or unfounded.

 

          (r)  “Disposition” means an administrative classification to indicate that an investigation described in RSA 161-F:42-57 could not be initiated or could not be completed.

 

          (s)  “Exploitation” means “exploitation” as defined in RSA 161-F:43, IV, namely “the illegal use of an incapacitated adult’s person or property for another person’s profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person’s property for any purpose not in the proper and lawful execution of a trust, including, but not limited to, situations where a person obtains money, property or services from an incapacitated adult through the use of undue influence, harassment, duress, deception, or fraud.”

 

          (t)  “Facility administrator” means the administrator of a licensed facility described in RSA 151.

 

          (u)  “Founded” means the determination that one or more of the allegations included in a report of alleged abuse, neglect, self-neglect or exploitation of an incapacitated adult met one or more of the definitions contained in RSA 161-F: 43,  II (a), (b), (c), III, IV or VI.

 

          (v)  “Guardian” means an individual who has been appointed by the probate court in accordance with RSA 464-A, to have care or custody or manage the estate of another individual adjudicated to be incapacitated.

 

          (w)  “Guardianship” means a fiduciary relationship wherein, following a petition, hearing and other proceedings described in RSA 464-A, an individual is appointed by the probate court to have care and custody of another individual who is adjudged by the court to be incapable of managing personal needs, property, and/or financial affairs.

 

          (x)  “Guardianship hearing” means the hearing on a petition which is held in accordance with RSA 464-A, where the petitioner has the responsibility to establish why the proposed ward, who is the subject of the petition, is in need of a guardian.

 

          (y)  “Imminent danger” means that the circumstances of an alleged victim, as described in a protective report, suggest that injury or death could occur immediately.

 

          (z)  “Incapacitated” means incapacitated as defined in RSA 161-F: 43, VII, namely “the physical, mental or emotional ability of a person is such that he is unable to manage personal, home, or financial affairs, in his own best interest, or he is unable to act or unable to delegate responsibility to a responsible caretaker or caregiver.”

 

          (aa)  “Incapacitated adult” means an individual aged 18 or older who is incapacitated as defined in (z) above and RSA 161-F:43, VII.

 

          (ab)  “Investigator” means the APSW designated by the bureau administrator to conduct the investigation.

 

          (ac)  “Neglect” means “neglect” as defined in RSA 161-F:43,  III, namely “an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional or physical health and safety of an incapacitated adult.”

 

          (ad)  “Notification” means the processes described in He-E 701.10, by which the parties named in He-E 701.12 are informed as to whether the investigation has resulted in a founded or an unfounded determination, or in a disposition.

 

          (ae)  “Perpetrator” means the individual who, following a protective investigation completed in accordance with RSA 161-F:42-57 and He-E 700, is found to have abused, neglected or exploited an incapacitated adult.

 

          (af)  “Protective investigation” means the process by which the investigator inquires into a report of alleged abuse, neglect, self-neglect or exploitation, pursuant to RSA 161-F:42-57, in order to determine the validity of the allegation(s) and the need for protective services.

 

          (ag)  “Protective investigation file” means the individual record that contains all the information related to the protective investigation described in this part.

 

          (ah)  “Protective investigation summary” means the investigator’s written report that contains information obtained during the protective investigation, except for the reporter’s name, as well as the determination made at the conclusion of the investigation.

 

          (ai)  “Protective report” means a notification to the APS unit that an adult who is or who is suspected to be incapacitated has been subjected to abuse, neglect, self-neglect, or exploitation or is living in hazardous conditions.

 

          (aj)  “Protective services” means “protective services” as defined in RSA 161-F:43, I, namely “services and action which will, through voluntary agreement or through appropriate court action, prevent neglect, abuse, or exploitation of incapacitated adults.  Such services shall include, but not be limited to, supervision, guidance, counseling and, when necessary assistance in securing of nonhazardous living accommodations, and mental and physical examinations.”

 

          (ak)  “Reconsideration” means the process described in He-E 701.14 that is conducted following a founded determination if the reconsideration is requested by a perpetrator who is not registry eligible, or by a founded victim of self-neglect.

 

          (al)  “Registry eligible” means a paid or volunteer caregiver, guardian, or agent acting under the authority of any POA or any DPOA who is a perpetrator and therefore is eligible to be listed on the BEAS state registry in accordance with these rules and pursuant to RSA 161-F:49.

 

          (am)  “Registry eligible alleged perpetrator review” means the process described in He-E 701.09 that is conducted following a recommended founded determination and prior to the date of approval if the review is requested by an alleged perpetrator of abuse, neglect or exploitation who is registry eligible.

 

          (an)  “Reporter” means the individual who reports in accordance with RSA 161-F:46 that an adult, who is suspected to be incapacitated, has been subject to abuse, neglect, self-neglect or exploitation.

 

          (ao)  “Self-neglect” means self-neglect as defined in RSA 161-F:43, VI, namely “an act or omission by an incapacitated adult which results or could result in the deprivation of essential services or supports necessary to maintain his or her minimum mental, emotional or physical health and safety.”

 

          (ap)  “Supervisor” means the individual employed by BEAS and certified by the NH department of administrative services, division of personnel, who oversees the work of APSWs.

 

          (aq)  “Unfounded” means the determination that a report of alleged abuse, neglect, self-neglect or exploitation of an incapacitated adult did not meet the definitions contained in RSA 161-F:43, II(a), (b), (c), III, IV or VI.

 

          (ar)  “Victim” means the incapacitated adult who, following a protective investigation completed in accordance with RSA 161-F:42-57 and He-E 700, is found to have been abused, neglected, exploited or self-neglecting.

 

          (as)  “Ward” means “ward” as defined in RSA 464-A:2, XVI, namely “a person for whom a guardian of the person and the estate, or the person, or the estate, has been appointed.”

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.03  Protective Reports.

 

          (a)  When making a report as required by RSA 161-F:46, the reporter may make the report in person, by telephone, by letter, by email or by fax.

 

          (b)  A report may be made anonymously.  Individuals shall be encouraged to identify themselves, but anonymous reports shall be accepted.

 

          (c)  A person wishing to make a report may contact any district office, the BEAS central office, or the APS central intake office.

 

          (d)  After business hours or during weekends or holidays, individuals making reports shall contact the police department of the applicable political subdivision, or the sheriff of the county in which the alleged abuse, neglect, self-neglect or exploitation occurred, in accordance with RSA 161-F:46, I.

 

          (e)  If the report is deemed to be non-protective, the reporter shall be provided with appropriate information and referral.

 

          (f)  As soon as possible, but no later than 72 hours following receipt of a protective report, BEAS shall initiate a protective investigation.

 

          (g)  In cases of imminent danger, BEAS shall immediately initiate a protective investigation of the report and approve the authorization of protective services if necessary to protect the alleged victim.

 

          (h)  If the alleged victim has a guardian, BEAS shall contact the guardian to inform him or her that a protective report has been received, and request a copy of the guardianship order.

 

          (i)  If the alleged perpetrator is the guardian of the alleged victim, BEAS shall:

 

(1)  Notify the circuit court – probate division of jurisdiction; and

 

(2)  Notify the supervisor, who shall postpone contact with the guardian if the alleged victim’s safety is in jeopardy.

 

          (j)  If the intake contains information that the alleged victim has suffered serious bodily injury that is known or suspected to result from abuse, neglect or exploitation, or if there is reason to believe that a crime has been committed, BEAS shall notify the appropriate law enforcement agency and the department of justice within 72 hours or as soon as the protective investigation has begun.

 

          (k)  Upon taking a protective report, BEAS shall notify the agencies listed in He-E 701.12(a)(3)-(10) as appropriate.

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.04  Protective Investigation Requirements.

 

          (a)  The department shall conduct a protective investigation on each report received, except as described in (b) and (c) below. 

 

          (b)  The department shall not conduct or complete a protective investigation when any of the following apply:

 

(1)  The alleged victim does not fall under the reporting requirement described in RSA 161-F:46;

 

(2)  The allegation(s) is determined not to meet any of the definitions of abuse, neglect, exploitation or self-neglect contained in RSA 161-F:43;

 

(3)  In reports of self-neglect when the alleged victim has died prior to the initiation of the investigation or has died after the initiation of the investigation and the death is not related to, or the result of the allegation;

 

(4)  In all other reports of alleged abuse, neglect or exploitation, when the alleged victim has died, and BEAS has determined that the interview with the alleged victim is necessary to the investigation;

 

(5)  When the alleged victim cannot be located and the department determines that an interview with the alleged victim is necessary to conduct the investigation;

 

(6)  When the report involves an incident or situation of abuse, neglect or exploitation that allegedly occurred 2 or more years ago, and there is no current relationship with the alleged perpetrator; 

 

(7)  When the report does not include sufficient information to allow an investigation to be conducted under RSA 161-F: 42-57;

 

(8)  When the alleged perpetrator:

 

a.  Is living in a certified or licensed facility or residence at the time of the alleged incident because other DHHS bureaus would be conducting the investigation; or

 

b.  Dies prior to the initiation of the investigation, or after the investigation has been initiated, but before it is completed; or

 

(9)  When the report is determined to be frivolous or without factual basis as described in RSA 161-F:46, III.

 

          (c)  When the report is criminal in nature, and a criminal investigation will be conducted by law enforcement, the department shall not conduct or complete an investigation unless one or more of the following apply:

 

(1)  The alleged perpetrator is registry eligible;

 

(2)  The investigator has determined that the alleged victim is in need of protective services; or

 

(3)  The alleged perpetrator has an ongoing relationship with the alleged victim.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.05  Dispositions.  In situations where the supervisor determines that an investigation cannot be conducted or cannot be completed, a report shall result in one of the following dispositions:

 

          (a)  No investigation conducted; or

 

          (b)  Investigation not completed.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.06  Interviews.

 

          (a)  The investigator shall interview the alleged victim in person, regardless of his or her mental or physical condition, even if the alleged victim cannot communicate verbally.

 

          (b)  During the interview, the investigator shall:

 

(1)  Identify himself or herself and describe BEAS’ responsibility to investigate in accordance with RSA 161-F:42-57;

 

(2)  Inform the alleged victim that a report of abuse, neglect, self-neglect or exploitation has been received, except that the investigator shall not reveal the reporter’s name;

 

(3)  Explain the role of the investigator and the purpose of the investigation;

 

(4)  Specify the allegation(s) contained in the protective report and request the alleged victim’s response;

 

(5)  Obtain information regarding the alleged victim’s safety, functioning, and environment;

 

(6)  Inform the alleged victim that there might be a need to interview other individuals in order to complete the investigation and ask for the names of any individuals whom the alleged victim identifies as having information; and

 

(7)  If the alleged victim has a guardian, inform the alleged victim that at the conclusion of the investigation, the guardian will be notified about the investigation results.

 

          (c)  The investigator shall request a face to face interview with the alleged perpetrator.

 

          (d)  If the alleged perpetrator is a minor, the investigator shall:

 

(1)  Contact the alleged perpetrator’s guardian to inform the guardian of the need to interview the minor; and

 

(2)  Offer the guardian the opportunity to be present at the interview, and if he or she does not choose to do so, obtain written permission to interview the minor without the guardian’s presence.

 

          (e)  If the alleged perpetrator has a guardian appointed pursuant to RSA 464-A, the investigator shall contact the guardian to inform him or her of the need to interview the alleged perpetrator, except under the circumstances described in He-E 701.03(i).

 

          (f)  If the alleged perpetrator refuses to be interviewed or cannot be located, the investigator shall send a letter to the alleged perpetrator’s last known address, requesting an interview.

 

          (g)  If the alleged perpetrator has a guardian who refuses to allow his or her ward to be interviewed, the investigator shall notify the guardian by letter, sent by United States Postal Service first class mail, that a determination will be made without the alleged perpetrator’s input.

 

          (h)  If the alleged perpetrator cannot be located, or can be located, but does not consent to be interviewed, the investigator shall proceed with the investigation and make a determination based on information available from the alleged victim, collateral contacts, written reports and records, and other relevant information or documentation.

 

          (i)  When interviewing the alleged perpetrator, the investigator shall:

 

(1)  Identify himself or herself and describe the responsibility of BEAS to investigate in accordance with RSA 161-F:42-57;

 

(2)  Inform the alleged perpetrator that a report of abuse, neglect, or exploitation has been received, except that the investigator shall not reveal the reporter’s name;

 

(3)  Explain the role of the investigator and the purpose of the investigation;

 

(4)  Specify the allegation(s) contained in the report and request the alleged perpetrator’s response;

 

(5)  Inform the alleged perpetrator that there might be a need to interview other individuals in order to complete the investigation, and ask for the names of any individuals whom the alleged perpetrator identifies as having information; and

 

(6)  Inform the alleged perpetrator that, at the conclusion of the investigation, he or she and his or her guardian, if any, will be notified about the investigation results, including information about due process.

 

          (j)  The investigator shall interview collateral contacts who have pertinent information on the reported allegation(s), including, but not limited to, the following:

 

(1)  The individuals whom the alleged victim or the alleged perpetrator, if any, have identified as having information; and

 

(2)  Other individuals who have come to the investigator’s attention as having information regarding the allegations(s).

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.07  Investigation Responsibilities and the Determination.  During the course of the investigation, the investigator shall:

 

          (a)  Conduct all interviews as described in He-E 701.06;

 

          (b)  As necessary, request protective services to be approved by the supervisor in order to protect the alleged victim while the investigation is in progress;

 

          (c)  Obtain and review relevant written reports, records, photographs, and any other necessary documentation in accordance with RSA 161-F:56;

 

          (d)  Consult, as necessary, with other professionals who have expertise regarding the type of report or allegations being investigated;

 

          (e)  Review all information collected during the investigation process;

 

          (f)  Determine whether or not the allegation(s) is or are substantiated;

 

          (g)  Determine whether or not the report is founded or unfounded based on the following:

 

(1)  Statements made by the alleged victim;

 

(2)  Supporting testimony given by collateral contacts;

 

(3)  Supporting written, photographic, audio or visual documentation; or

 

(4)  Statements made by the alleged perpetrator, if any;

 

          (h)  When the report is founded, the investigator shall determine that there is a need for protective services if any of the following is true:

 

(1)  The victim’s health or safety is in jeopardy;

 

(2)  The victim’s living arrangement is unsafe; or

 

(3)  The victim has functional or cognitive limitations that prevent the necessary performance of personal care activities or household tasks; and

 

          (i)  Complete all required forms, summaries and letters in order to document the investigation and provide necessary notification(s).

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.08  Purpose of a Review.

 

          (a)  A registry eligible perpetrator may, in accordance with He-E 701.09 below, request a review by the bureau administrator for the purpose of considering new or additional information, or to dispute the accuracy of the information obtained during the investigation.

 

          (b)  With the request for a review the registry eligible perpetrator shall provide new or additional information to dispute the finding or the accuracy of the information used to make the recommended founded determination.

 

          (c)  The bureau administrator shall consider the new or additional information to determine if the recommended founded determination will be upheld or overturned.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.09  Registry Eligible Alleged Perpetrator Review Prior to Completion of the Investigation.

 

          (a)  For a report involving an alleged perpetrator who is registry eligible, upon a recommended founded determination and prior to the date of approval, the investigator shall send written notice to the alleged perpetrator and his or her guardian, if any, of the recommended founded determination and the option to request a review prior to completion of the investigation.

 

          (b)  The bureau shall notify the registry eligible alleged perpetrator’s guardian of the request for review if the request is received directly from one of the following: 

 

(1)  A perpetrator who is under 18 years of age; or

 

(2)  A perpetrator who is 18 years or older and has a guardian appointed by the probate court in accordance with RSA 464-A.

 

          (c)  If the alleged perpetrator who is registry eligible wants a review, he or she shall request a review within 3 business days of the date of the notice, which may be made via telephone or electronic mail.

 

          (d)  All requests for a review of a registry eligible alleged perpetrator shall contain:

 

(1)  The full name, address, date of birth and telephone number of the alleged perpetrator; and

 

(2)  A statement that explains the reason(s) for requesting the review and the additional information the alleged perpetrator wishes to present.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.10  Notification Following a Review of a Registry Eligible Alleged Perpetrator.

 

          (a)  Following a review of a registry eligible perpetrator, the bureau administrator shall send written notification to the alleged perpetrator and his or her guardian, if any, of whether the recommendation of the investigator is approved or overturned, or returned for further investigation.

 

          (b)  If the recommendation of the investigator is approved following a review, within 3 business days of the date of the review, a notice to the perpetrator shall be sent in accordance with RSA 161-F:49, II and He-E 701.12.

 

          (c)  If the recommendation of the investigator is overturned following a review, within 3 business days of the date of the review, a notice shall be sent to the alleged perpetrator or his or her guardian, if any, in accordance with He-E 701.12(a)(3).

 

          (d)  If the report is returned to the investigator for further investigation following a review, notice shall be sent to the alleged perpetrator or his or her guardian, if any, within 10 business days of the review.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.11  Retention of Protective Investigation Material.

 

          (a)  For all investigations of self-neglect that are determined to be unfounded, material related to the investigation shall be retained for one year after the date of approval.

 

          (b)  For all other investigations that result in an unfounded determination, material related to the investigation shall be retained for 3 years from the date of approval.

 

          (c)  For all investigations that result in a founded determination, the material related to the investigation shall be retained for 7 years after the date of approval, or for 7 years after the date the perpetrator’s name is entered onto the registry. 

 

          (d)  For investigations in which founded determinations are overturned based on either the reconsideration process or on appeal the material related to the investigation shall be retained for 3 years from the date of the notice or decision. 

 

          (e)  For investigations that result in a founded determination, based on the reconsideration process or on appeal, material related to the investigation shall be retained for 7 years from the date of the notice or the decision.

 

          (f)  For investigations that result in one of the dispositions described in He-E 701.05, material related to the investigation shall be retained for 6 months from the date of approval.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.12  Notification Following Investigation. 

 

          (a)  Upon completion of an investigation resulting in a founded, unfounded, or “investigation not completed” disposition, the investigator shall notify the following individuals and agencies:

 

(1)  The alleged victim and his or her guardian, if any;

 

(2)  The alleged perpetrator, if any, and his or her guardian, if any;

 

(3)  The probate court, if the alleged perpetrator is the guardian of the alleged victim;

 

(4)  The department’s office of client and legal services, established in accordance with RSA 171-A:19, if the alleged perpetrator is a public guardian of the alleged victim;

 

(5)  The facility administrator, or an agency director, if the alleged victim was a resident of a facility or a recipient of services at the time of the alleged abuse, neglect or exploitation;

 

(6)  The board of nursing, if the alleged perpetrator is licensed through the board;

 

(7)  The bureau of developmental services and the bureau of behavioral health, if the alleged victim is a client receiving services from either or both of these bureaus, or was a client receiving bureau services at the time of the alleged abuse, neglect, or exploitation;

 

(8)  The department’s health facilities administration when that bureau has jurisdiction over the facility in which the alleged perpetrator is or was employed;

 

(9)  A home health agency or another agency, if the agency is or was providing services to the alleged victim, and the agency employs or did employ the alleged perpetrator at the time of the alleged abuse, neglect or exploitation; and

 

(10)  The department of justice, if the report was received from law enforcement officials.

 

          (b)  All notices sent after the completion of an investigation or an “investigation not completed” disposition shall:

 

(1)  Be sent by United States Postal Service first class mail, or be hand-delivered;

 

(2)  State whether the report was founded, unfounded, or resulted in an “investigation not completed” disposition; and

 

(3)  Not include the name of the reporter.

 

          (c)  If the investigation resulted in a disposition of “investigation not completed,” in addition to the information described in (b) above, the notice shall contain the reason for the disposition.

 

          (d)  In accordance with RSA 161-F:49, II, if the investigation resulted in a founded determination and the perpetrator is registry eligible, the notice(s) issued in accordance with (a) shall:

 

(1)  Be sent within 5 business days; and

 

(2)  Contain:

 

a.  The identity of the perpetrator;

 

b.  A description of the allegation stated in the report;

 

c.  The reasons for the founded determination, the consequences of such a finding, and that such information is required to be entered on the state registry in accordance with He-E 701.23 and RSA 161-F:49;

 

d.  Information on the right to appeal as described in He-E 701.17; and

 

e.  In the victim’s and his or her guardian’s letter only, whether services will be provided.

 

          (e)  In accordance with RSA 161-F:49, VI,  for an investigation that resulted in a founded determination which was caused by factors beyond the control of the perpetrator, the perpetrator shall be notified of that determination and that, as a result, the finding shall not be entered on the registry.

 

          (f)  For reports of self-neglect or reports of abuse, neglect or exploitation, if the investigation resulted in a founded determination, and the perpetrator is not registry eligible, notice(s) issued in accordance with (a) shall include the following information:

 

(1)  The type and description of the allegations stated in the report;

 

(2)  The reasons for the founded determination;

 

(3) The procedures by which the perpetrator or victim of self-neglect may request a reconsideration pursuant to He-E 701.14; and

 

(4)  In the victim and his or her guardian’s letter only, whether services will be provided.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.13 Purpose of a Reconsideration.  The purpose of a reconsideration of a founded determination for a non-registry eligible perpetrator or victim of self-neglect shall be for the bureau administrator to consider new or additional information, or the accuracy of the information obtained during the investigation, or both.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.14  Request for Non-Registry Eligible Reconsideration.

 

          (a)  For founded cases of abuse, neglect, and exploitation, a perpetrator who is not registry eligible, or his or her guardian, if any, or a victim of self-neglect, or his or her guardian, if any, shall submit a request for reconsideration in writing to the bureau administrator within 10 business days of the date of the notice in He-E 701.12, and include the following:

 

(1)  The name, address, and telephone number of the perpetrator or victim of self-neglect; and

 

(2)  A statement that explains the reasons for requesting the reconsideration.

 

          (b) The bureau shall notify the person’s guardian of the request for a non-registry eligible reconsideration if the request is received directly from one of the following:

 

(1)  A perpetrator who is under 18 years of age; or

 

(2)  A perpetrator or victim of self-neglect who is 18 years or older and has a guardian appointed by the probate court in accordance with RSA 464-A.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.15  Notification Following a Non-Registry Eligible Reconsideration.

 

          (a)  If the original determination of the investigation is upheld, a notice shall:

 

(1)  Be sent within 3 business days of the reconsideration to the perpetrator and his or her guardian, if any, or to the victim of self-neglect and his or her guardian, if any; and

 

(2)  Contain an explanation of why the determination was upheld.

 

          (b)  If the original determination of the investigation is overturned, notice shall be sent within 3 business days of the reconsideration to:

 

(1)  The perpetrator and his or her guardian, if any, or to the victim of self-neglect and his or her guardian, if any;

 

(2)  The victim of a founded report of abuse, neglect or exploitation and his or her guardian, if any;

 

(3)  The facility administrator, or an agency director, if the alleged victim was a resident of a facility or a recipient of services at the time of the alleged abuse, neglect, or exploitation; and

 

(4)  Other individuals or agencies as outlined in He-E 701.12(a), as applicable.

 

          (c)  The 3 business day decision period stipulated in (a) and (b) above shall only be extended with the agreement of:

 

(1)  The alleged perpetrator and his or her guardian, if any; or

 

(2)  The alleged victim of a founded report of self-neglect and his or her guardian, if any.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.16  Appeal Rights.

 

          (a)  Perpetrators who are registry eligible shall have a right to contest the finding by appealing to the administrative appeals unit within 10 business days of the date of the notice of a founded determination.

 

          (b)  Pending the outcome of an appeal requested in (a) above, the perpetrator’s information shall not be entered onto the state registry.

 

          (c)  In accordance with RSA 161-F:49, IV, a perpetrator’s information, shall be entered onto the state registry if the perpetrator appeals the founded determination and it is upheld by the administrative appeals unit.

 

          (d)  Failure to request an appeal within the timeframes identified in (a) above, shall constitute a waiver of the right to an administrative appeal of the department’s founded determination.

 

          (e)  Perpetrators who are registry eligible shall have the right to:

 

(1)  Receive a full and fair administrative hearing, including the right to be represented by counsel at his or her own expense;

 

(2) Appeal an adverse decision by the administrative appeals unit to the probate court in accordance with RSA 161-F:49, V; and

 

(3)  Petition to have the finding expunged from the state registry pursuant to RSA 161-F:49, IX.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.17  Opening a Protective Services Program Case.  Following a protective investigation, the APSW shall open a case in the adult protective services program in order to provide protective services to, and/or authorize protective services for the victim when the following conditions are met:

 

          (a)  There is a need for protective services;

 

          (b)  The victim agrees to accept protective services; and

 

          (c) The victim and his or her guardian, if the victim has a guardian, has participated in the development of a protective services program case plan.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at chapter heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.18  Protective Services.  Protective services shall consist of any or all of the following:

 

          (a)  Counseling and case management services provided directly by the APSW;

 

          (b)  Services authorized or coordinated by the APSW and provided by other individuals or agencies; and

 

          (c)  Services coordinated by the APSW and provided by families, community organizations or volunteer groups.

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.19  Role of the BEAS in the Guardianship Process.

 

          (a)  The adult protective services program shall have one of the following roles in the guardianship process described in RSA 464-A:

 

(1)  Providing information about the guardianship process to individuals who are filing for guardianship; or

 

(2)  Petitioning for the appointment of a guardian for an incapacitated adult, pursuant to RSA 161-F:52 and RSA 464-A.

 

          (b)  The following criteria shall be met prior to petitioning for the appointment of a guardian for an incapacitated adult:

 

(1)  A protective investigation has been completed and there is a founded determination;

 

(2)  It is determined that there is a need for protective services;

 

(3)  All other less restrictive options, including the provision of other appropriate protective services, have been exhausted;

 

(4)  A guardian is needed because:

 

a.  The incapacitated adult is unable to meet his/her own needs for food, clothing, shelter, health care or safety, or is unable to manage property or financial matters, as described in RSA 464-A:2, VII; or

 

b.  The incapacitated adult cannot exercise informed judgment, as defined in RSA 464-A:2, XII; and

 

(5)  Family members who have a relationship with the incapacitated adult have been contacted, and have indicated in writing that they are unable or unwilling to pursue guardianship.

 

          (c)  When the criteria listed in (b)(1) - (5) above are not met, a petition for the appointment of a guardian may still be requested when it is determined that without the provision of a guardian, there is a serious likelihood that the incapacitated adult would face a risk of death or serious physical or mental harm to him/herself.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at chapter heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.20  Guardianship Hearing.  If BEAS is not the petitioner, adult protection program staff shall attend guardianship hearings only if subpoenaed.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.21  Releasing Information.  Information about the investigation shall be confidential, and shall only be released by BEAS to the parties named in He-E 701.22 below.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.22  Who May Receive Information.

 

          (a)  When the investigation is in process, information which has been obtained, or which is in the process of being obtained, shall be released to the following, but only that information which is necessary for the receiving entity to carry out its statutory or regulatory mandates or service provision:

 

(1)  The department of justice, other law enforcement officials or a court;

 

(2)  The health facilities administration, when the investigation involves an alleged victim residing in a facility overseen by the health facilities administration, except that the reporter’s name shall not be released;

 

(3)  The bureau of behavioral health, when the investigation involves an alleged victim who receives services from a community mental health program or resides at a facility overseen by the bureau of behavioral health, except that the reporter’s name shall not be released;

 

(4)  NH Hospital or Glencliff home when the alleged victim who resides at the facility, except that the reporter’s name shall not be released;

 

(5)  The bureau of developmental services, when the investigation involves an alleged victim who resides in a facility or participates in a program overseen by the bureau of developmental services, except that the reporter’s name shall not be released;

 

(6)  The office of the state long-term care ombudsman, when the investigation involves an alleged victim residing in a licensed nursing facility, licensed assisted living facility, licensed residential care facility or licensed supported residential care facility,  except that the reporter’s name shall not be released;

 

(7)  The board of nursing, when the investigation involves a victim who is alleged to have been abused, neglected or exploited by an individual licensed by the board, except that the reporter’s name shall not be released; and

 

(8)  Agencies or individuals who provide services to the alleged victim, except that the reporter’s name shall not be released.

 

          (b)  When the investigation is completed, and a determination has been made, information shall be released, if requested, to the following agencies/individuals who request it, in accordance with the provisions specified below:

 

(1)  To the victim and his/her guardian, if any, or, if the victim is deceased, the executor or administrator of the victim’s will, a copy of the protective investigation summary,  except that the reporter’s name shall not be released;

 

(2)  To the perpetrator and his/her guardian if any, a copy of the protective investigation summary, but only when a founded determination has been made, except that the reporter’s name shall not be released;

 

(3)  To the department of justice, a court-appointed attorney for the proposed ward or ward, or any other law enforcement officials, a copy of the protective investigation summary or any other requested information, including the reporter’s name if requested;

 

(4)  To a court, a copy of the protective investigation summary or any other requested information, including the reporter’s name if requested;

 

(5)  To the board of nursing and the health facilities administration, a copy of the investigation summary, but only when a founded determination has been made, except that the reporter’s name shall not be released;

 

(6)  To the bureau of behavioral health and the bureau of developmental services, only that information that is needed by those bureaus to carry out their statutory mandates, except that the reporter’s name shall not be released;

 

(7)  To agencies or individuals who are, or who will be, participants in providing services to the victim, only that information needed to provide services, except that the reporter’s name shall not be released;

 

(8)  To a family member or another individual who is petitioning for the appointment of a guardian for a victim, only that information related to the petition for guardianship except that the reporter’s name shall not be released; and

 

(9)  To employers as provided in RSA 161-F:49, VII, a copy of the protective investigation summary, except that the name of the reporter, the last name of the victim and the last name of any individual cited in the summary shall not be released.

 

          (c)  When a disposition has been used, information shall be released, if requested, to: 

 

(1)  The alleged victim and his or her guardian, if any, or, if the alleged victim is deceased, the executor or administrator of the alleged victim’s will, if the alleged victim was contacted or interviewed, except that the reporter’s name shall not be released;

 

(2)  The alleged perpetrator and his/her guardian, if any, provided that the alleged perpetrator was contacted or interviewed, except that the reporter’s name shall not be released; and

 

(3)  The department of justice, other law enforcement officials, a court-appointed attorney for the proposed ward or ward, or a court, including the reporter’s name, if requested.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

          He-E 701.23  The BEAS State Registry.  BEAS shall maintain a state registry for the purpose of maintaining a record of information on each founded report of abuse, neglect, or exploitation toward an individual by a paid or volunteer caregiver, guardian, or agent acting under the authority of any POA or any DPOA in accordance with RSA 161-F:49.

 

Source.  #5008, eff 11-27-90, EXPIRED: 11-27-96

 

New.  #6867, eff 10-9-98; ss by #8727, INTERIM, eff 10-9-06, EXPIRED: 4-7-07

 

New.  #8868, eff 4-19-07; (See Revision Note at Chapter Heading for He-E 700) #10179, eff 9-1-12

 

PART He-E 720  BUREAU OF ELDERLY AND ADULT SERVICES STATE REGISTRY

 

Statutory Authority: RSA 161-F:49

 

He-E 720.01  Purpose.  The purpose of these rules is to describe:

 

(a)  The process for obtaining a confirmation of whether or not there is a match from the state registry;

 

(b)  The confidentiality and expungement of information contained on the state registry; and

 

(c)  For an employer of a program which is licensed, certified or funded by the department to provide services to individuals, the process and criteria for granting a waiver to employ a person whose name has been confirmed as a match on the state registry.

 

Source.  #10191, eff 9-27-12

 

He-E 720.02  Scope.  These rules shall apply to any person or agency seeking a confirmation of whether or not there is a match on the state registry or seeking a waiver relative to a match on the state registry pursuant to RSA 161-F:49, VII and VIII, including:

 

(a)  All employers of programs which are licensed, certified, or funded by the department to provide services to individuals;

 

(b)  Any person considering employing a private citizen to provide personal care services;

 

(c)  Any person considering designating another to serve as his or her agent under a power of attorney or any type of durable power of attorney; and

 

(d)  Any individual, agency, or program which employs staff who provide direct services to individuals.

 

Source.  #10191, eff 9-27-12

 

He-E 720.03  Definitions.

 

(a)  “Abuse” means “abuse” as defined by RSA 161-F:43, II, namely, “any one of the following: 

 

(1)  ‘Emotional abuse’ means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in the mental anguish or emotional distress of an incapacitated adult;

 

(2)  ‘Physical abuse’ means the use of physical force which results in or could result in physical injury to an incapacitated adult; or

 

(3)  ‘Sexual abuse’ means contact or interaction of a sexual nature involving an incapacitated adult without his or her informed consent.”

 

(b)  “Applicant” means a prospective employee, contractor, consultant, or volunteer who, through an employer if hired, might be in contact with individuals.

 

(c)  “Bureau of Elderly and Adult Services state registry (state registry)” means a database containing information on founded reports of abuse, neglect or exploitation of incapacitated adults by a paid or volunteer caregiver, guardian or agent acting under the authority of any power of attorney or any durable power of attorney pursuant to RSA 161-F: 49. 

 

(d)  “Commissioner” means the commissioner of the New Hampshire department of health and human services or his or her designee.

 

(e)  “Employer” means a person or agency that is licensed, certified, or funded by the department to provide services to individuals.

 

(f)  “Exploitation” means “exploitation” as defined in RSA 161-F: 43, IV namely,  “the illegal use of an incapacitated adult’s person or property for another person’s profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person’s property for any purpose not in the proper and lawful execution of a trust, including, but not limited to, situations where a person obtains money, property or services from an incapacitated adult through the use of undue influence, harassment, duress, deception, or fraud.”

 

(g)  “Expunged” means the removal of information contained on the state registry that relates to matching a specific perpetrator’s name to a founded report of abuse, neglect, or exploitation.

 

(h)  “Founded report of abuse, neglect or exploitation” means the determination  that one or more of the allegations of abuse, neglect, or exploitation of an incapacitated adult met one or more of the definitions contained in RSA 161-F: 43, II (a), (b), (c), III, IV or VI pursuant to a protective investigation completed in accordance with He-E 700.

 

(i)  “Incapacitated” means incapacitated as defined in RSA 161-F: 43, namely, VII “the physical, mental or emotional ability of a person is such that he is unable to manage personal, home, or financial affairs, in his own best interest, or he is unable to act or unable to delegate responsibility to a responsible caretaker or caregiver.”

 

(j)  “Incapacitated adult” means a person aged 18 or older who is incapacitated as defined in (i) above and RSA 161-F: 43, VII.

 

(k)  “Individual” means an individual, 18 years of age or older, found eligible for or receiving services pursuant to RSA 171-A, RSA 135-C: 13 & 14, RSA 161-E & I or programs licensed under RSA 151:2, I(b), (e), or (f) or who is an incapacitated adult, as defined under RSA 161-F:43, VII.

 

(l)  “Match” means BEAS has identified the name submitted on the consent form in He-E 720.04(a) as a perpetrator in a founded report of abuse, neglect, or exploitation listed on the state registry.

 

(m)  “Neglect” means “neglect” as defined in RSA 161-F: 43, III, namely, “an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional or physical health and safety of an incapacitated adult.”

 

(n)  “Perpetrator” means the individual who, following a protective investigation completed in accordance with RSA 161-F:42-57 and He-E 700, is found to have abused, neglected or exploited an incapacitated adult.

 

(o)  “Prospective agent” means a person being considered to act under the authority of a power of attorney or any durable power of attorney.

 

Source.  #10191, eff 9-27-12

 

He-E  720.04  State Registry.

 

(a)  In accordance with these rules, upon request, BEAS shall provide confirmation of whether or not there is a match on the state registry to the following agencies and persons: 

 

(1)  Employers;

 

(2)  Private citizens who:

 

a.  Seek to employ or contract with another private citizen to provide personal care services; or

 

b.  Wish to designate a prospective agent;

 

(3)  Persons checking to see if their own names are included on the state registry;

 

(4)  Courts in accordance with RSA 464-A:4,V(c); and

 

(5)  Any individual, agency or program providing services to individuals.

 

(b)  The agencies and persons identified in (a)(1)-(3) and (5) above shall complete and submit a consent form entitled “BEAS State Registry Consent Form,” Form 3655 (April 2011) to request the confirmation of whether or not there is a match.

 

(c)  The signature of the applicant, prospective agent, or person completing Form 3655 shall signify authorization for the release of the information in (f) below to the agency or person who is identified on the form.

 

(d)  Confirmation of a match shall be confidential, and notification shall be released in accordance with (f) below with a completed consent form as described in (b) and (c) above.

 

(e)  The information contained on the state registry shall be retained for a period of 7 years, except upon receipt of an order from the probate division of the circuit court that grants a perpetrator’s request to have the information on the state registry expunged.

 

(f)  Notification to the agencies or persons identified in (a) above who request state registry information shall include:

 

(1)  Confirmation of whether or not there is a match; and

 

(2)  If there is a match, information on how to request a waiver for employment.

 

(g)  Third party agencies or persons, such as an employment agency, and agencies not providing services to individuals shall be prohibited from accessing the information contained on the state registry.

 

Source.  #10191, eff 9-27-12

 

He-E  720.05  Waiver for Employment.

 

(a)  When the applicant applying for employment with a program that is licensed, certified, or funded by the department to provide services to individuals has been confirmed as a match, the employer shall not hire the applicant unless a waiver to hire such a person is requested and obtained from the department.

 

(b)  Upon receipt of a confirmed match, the employer in (a) above may, with the consent of the applicant, request from BEAS a copy of the protective investigation summary, including the supporting documents, in order to determine whether or not to request a waiver.

 

(c)  Requests for information contained in an investigation file shall:

 

(1)  Be limited to the protective investigation summary and supporting documents; and

 

(2)  All documents shall be redacted as appropriate for the purposes of maintaining confidentiality.

 

(d)  The employer in (a) above shall submit to the commissioner a written request for a waiver, to include:

 

(1)  The perpetrator’s written acknowledgement of the circumstances that resulted in the founded determination;

 

(2)  Written documentation pertaining to any remedial action the perpetrator has taken subsequent to the founded determination, including but not limited to:

 

a.  A letter of recommendation from a professional attesting to the action taken by the perpetrator to address the actions or behaviors which led to the founded determination;

 

b.  Documentation of participation in formalized training related to issues that resulted in the founded determination; and

 

c.  Any other remedial actions taken, such as counseling; and

 

(3)  A written description of the employer’s plan to supervise the perpetrator so that the individuals in the employer’s care will be safe, to include, at a minimum, the following:

 

a.  A statement attesting that the employer has read the department’s investigation report and is fully informed about the circumstances that led to the perpetrator’s name being placed on the state registry;

 

b.  A description of the duties and responsibilities that the perpetrator will be hired to do, so that the department can evaluate the potential for risk to the individuals in the employer’s care based upon whether or not there is a likelihood of reoccurrence of the type of behavior that resulted in the perpetrator’s name being placed on the state registry;

 

c.  A description of an orientation and training plan for the perpetrator regarding the employer’s policies and procedures on the treatment of individuals in the employer’s care, as well as a schedule of subsequent review of such policies and procedures;

 

d.  A description of how the employer will directly or indirectly supervise the perpetrator; and

 

e.  A description of any other conditions of continued employment.

 

(e)  The commissioner shall approve the waiver request if:

 

(1)  All of the information in (d) above is provided;

 

(2)  The information demonstrates that the employer is fully informed of the circumstances that resulted in the perpetrator’s name being placed on the state registry; and

 

(3)  After reviewing the employer’s plan in (d)(3) above in relation to the documentation in (d)(1) and (2) above, and the underlying circumstances of the finding against the perpetrator which resulted in his or her name being placed on the state registry, the commissioner determines that the perpetrator does not pose a risk to the safety of the individuals in the employer’s care.

 

(f)  The commissioner shall deny the waiver request if:

 

(1)  Any of the information required in (d) above is not provided;

 

(2)  The information required by (d) above does not demonstrate that the employer is fully informed of the circumstances that resulted in the perpetrator’s name being placed on the state registry; or

 

(3)  The information provided does not affirmatively demonstrate that the perpetrator does not pose a risk to the safety of individuals in the employer’s care.

 

(g)  If the waiver is approved, the employer shall retain the approved waiver and all of the documents required by (d) above in the employee’s personnel file.

 

(h)  Any waiver granted by the commissioner in accordance with these rules shall not be transferable to any other employer, employee or position.

 

Source.  #10191, eff 9-27-12

 

He-E 720.06  Confidentiality and Release of Information.  Requests from a perpetrator listed on the state registry for information contained in the paper file will be limited to the protective investigation summary and the supporting attachments listed therein.

 

Source.  #10191, eff 9-27-12

 


 

APPENDIX

RULE

STATUTE

 

 

He-E 701.01

RSA 161-F:46; RSA 161-F:51; RSA-161-F:55

He-E 701.02

RSA 161-F:43; RSA 161-F:55; RSA 541-A:7

He-E 701.03

RSA 161-F:46; RSA 161-F:43, II-V

He-E 701.04

RSA 161-F:46, II; RSA 161-F:51; RSA 161-F:53; RSA 161-F:56

He-E 701.05

RSA 161-F:43, RSA 161-F:46; RSA 161-F:55

He-E 701.06

RSA 161-F:46; RSA 161-F:55; RSA 161-F:56

He-E 701.07

RSA 161-F:46, II; RSA 161-F:51, 53, 55, 56

He-E 701.08

RSA 161-F:55

He-E 701.09

RSA 161-F:49, I(c); RSA 161-F:49, II

He-E 701.10

RSA 161-F:55

He-E 701.11

RSA 161-F:49, IX; RSA 161-F:55

He-E 701.12

RSA 161-F:49, II; RSA 161-F:55

He-E 701.13 – 701.14

RSA 161-F:55

He-E 701.15

RSA 161-F:55

He-E 701.16

RSA 161-F:49, II, IV, V

He-E 701.17

RSA 161-F:51, I; RSA 161-F:42

He-E 701.18

RSA 161-F:51; RSA 161-F:42; RSA 161-F:43, I

He-E 701.19 – 701.20

RSA 161-F:52; RSA 161-F: 55

He-E 701.21 – 701.22

RSA 161-F:57; RSA 161-F: 55

He-E 701.23

RSA 161-F:49

He-E 720.01 – He-E 720.06

RSA 161-F:49