KMA Model Health Care Protocol on Abuse, Neglect & Exploitation Child, Spouse/Partner, Adult & Elder

V. REPORTING RESPONSIBILITIES

Many physicians have misconceptions about reporting suspected maltreatment of adults and children. These misconceptions can be an obstacle to safeguarding victims from further abuse and neglect. In addition, HIPAA raises other questions and concerns. HIPAA allows medical providers to make reports of child and adult abuse when authorized by state law.

ADULT:

• Who is mandated to report abuse? Any person, including a physician or nurse who has a reasonable cause to suspect that an adult has suffered abuse, neglect or exploitation. KRS 209.030.
• Who is considered an adult for purposes of the reporting statute? Adult means:
  • A person eighteen (18) years of age or older, who because of mental or physical dysfunctioning, is unable to manage his own resources or carry out the activity of daily living or protect himself from neglect, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services; or
  • A person without regard to age who is the victim of abuse and neglect inflicted by a spouse. KRS 209.020.
• What is abuse, neglect or exploitation for purposes of the reporting statute?
  • Abuse means the infliction of physical pain mental injury, or injury of an adult;
  • Neglect means a situation in which an adult is unable to perform or obtain for himself the services which are necessary to maintain his health or welfare, or the deprivation of services by a caretaker which are necessary to maintain the health and welfare of an adult, or a situation in which a person deprives his spouse of reasonable services to maintain health and welfare;
• Exploitation means the improper use of an adult or an adult’s resources by a caretaker or other person for the profit or advantage of the caretaker or other person. KRS 209.020.
• To what agency is the report made? The Cabinet for Health and Family Services (formerly the Cabinet for Families and Children). KRS 209.030.
• Reporting adult abuse under HIPAA: HIPAA allows medical providers to report adult abuse (adult defined above) when authorized or required by state law and Kentucky law requires medical providers to make such reports. If a report of such adult abuse is made, HIPAA mandates that the victim be informed of the report, but the victim does not have to authorize the report. Kentucky law also allows the CHFS to have access to medical records as part of an investigation into adult abuse.

CHILD:

• Who is mandated to report abuse?
  • Any person, including a physician or nurse who has a reasonable cause to believe that a child is dependent, neglected or abused.
  • Any supervisor who receives from an employee a report of suspected dependency, neglect or abuse. KRS 620.030.
• Who is considered a child for purposes of the reporting statute? Any person who has not yet reached his eighteenth birthday. KRS 600.020(8).
• To what agency is the report made? Local law enforcement, Kentucky State Police, the Cabinet for Health and Family Services (formerly the Cabinet for Families and Children) or its designated representative, or the Commonwealth’s or county attorney. KRS 620.030
• Reporting child abuse under HIPAA: HIPAA allows medical providers to make reports of child abuse when authorized or required by state law and Kentucky law requires medical providers to make such reports. Once such a report is made, Kentucky law further requires anyone providing services to the child or the child’s family to provide the necessary “assistance and information” to the CHFS when suspected child abuse is being investigated. This could certainly include medical records.

A. Cabinet for Health and Family Services, Department for Community Based Services (DCBS)

By legal mandate, the Department of Community Based Services (DCBS) adult and child protection workers have specialized roles in working with at-risk adults and children.

Basic DCBS protection responsibilities are to:

• respond promptly to reports of alleged maltreatment of adults and children and to determine the validity of the report;
• assess the nature and extent of maltreatment to the alleged victim;
• evaluate the risk of further injury to the alleged victim (for children, to determine whether the child should remain in the home while rehabilitative services are provided);
• determine and identify the problems which may have contributed to or resulted in maltreatment;
• offer and provide the protection & advocacy services of DCBS, if indicated;
• make a written report of the initial findings together with a recommendation for further action, if indicated;
• evaluate the potential for treatment and/or other services to rehabilitate or correct conditions;
• plan a course of services and/or treatment calculated to protect, stabilize, and (if indicated) rehabilitate;
• initiate, monitor and evaluate the plan;
• invoke the authority of the court where indicated or requested.

Get to know the local DCBS staff. When a patient presents, and abuse or neglect is suspected, the physician could then let the person know that he or she is familiar with the local DCBS staff who are available to assist in the ways outlined above. Assure the patient that the information will be kept confidential (see more detailed protective services information which follows). DCBS offices are located in every county. DCBS telephone numbers are listed in the Appendix.

DCBS has the authority and obligation to assure the reports meet the statutory definition of abuse, neglect, exploitation or dependency before a protection investigation is initiated. In cases where a report is not clearly within those statutory definitions, but indicates service needs, DCBS attempts to be responsive and secure appropriate services for the individual or family.

How to Report. An oral or written report may be made (immediately) to DCBS. In some cases, DCBS may request a follow-up written report . Refer to VI. Model Policy & Forms.

The information reported will allow DCBS to identify the alleged victim, evaluate the problem, and respond quickly and appropriately. The worker needs to know as much as is possible, but all of the information cited above does not have to be answered before making a report. Additional information which would help DCBS, but is not necessary to effect a report:

• (if different from usual residence); current safe location(s) and telephone number(s) where the alleged victim may be contacted
• safety issues (threats of homicide or suicide, weapons, history of violence) for the victim, DCBS worker, others (e.g., officers).

Residential Facility. If the maltreatment occurred in a residential facility, including those licensed by the Cabinet for Health and Family Services, DCBS cooperates (as is indicated) with the Office of the Inspector General (CHFS), the Medicaid Fraud & Patient Abuse Unit (Office of the Attorney General), and law enforcement.

Reporting Adult and Child Abuse from Substance Abuse Programs. Recommended procedures for complying with state mandates to report known or suspected adult/child maltreatment which also meet federal regulations with respect to confidentiality of substance abuse programs are described in the IX. C. Medical - Legal Issues.

Privileged Relationships. Statutes specify that privileged relationships are not grounds for excluding evidence. Neither psychiatrist-patient privilege nor the husband-wife privilege shall be a ground for excluding evidence regarding the abuse, neglect, or exploitation of an adult /child, or the cause of such maltreatment in any judicial proceeding resulting from a report made to DCBS. KRS 209.050; 620.050

Confidentiality. The name of the person making a report is CONFIDENTIAL per law, except when the court orders it released (extremely rare). KRS 209.140; 620.050(4)

Sharing of Information. All information gathered in the course of a DCBS abuse/neglect investigation is confidential by statute. However, the laws allow some information to be shared with persons (coroner & local child fatality response team) having a legitimate interest in the case (e.g., other Cabinet personnel, medical, psychological, educational or Community Based Services personnel, corrections personnel or law enforcement agencies, including the county attorney’s office). KRS 209.140; 620.140

Death. Death of the adult and/or child(ren)does not relieve one of the responsibility of reporting the circumstances surrounding the death (i.e., abuse, neglect) to the Department for Community Based Services. KRS 209.030; 620.030

Immunity. Persons reporting in good faith are immune from civil and criminal liability per law. This immunity exists with respect to reporting, and participation in any investigation or judicial proceeding resulting from the report. KRS 209.050; 620.050

Penalty. Kentucky law sets forth a penalty for failure to report adult/child abuse, neglect or exploitation (Class B Misdemeanor = up to 90 days in jail and/or a fine of up to $250). Each violation constitutes a separate offense. KRS 209.990; 620.990

Civil liability may be incurred in addition to or in lieu of criminal liability related to failure to report adult or child abuse, neglect or exploitation.

After a report is made to DCBS . . . cases are prioritized based on the nature of the report (e.g., type of abuse, victim age/seriousness of injury or condition). Contact is made with other authorities and collaterals as required by statute or policy. An investigation is initiated on all appropriate cases as indicated by statute and policy (usually within 24-48 hours).

Where an adult or child may be reported to be in imminent danger, a social worker is to initiate an investigation within the hour. A law enforcement officer may be requested to investigate and/or assist.

Responsibilities of DCBS. The Department for Community Based Services, upon receipt of a report of adult or child abuse, neglect or exploitation, shall take the following action as soon as is practical:

• notify the appropriate law enforcement agency;
• initiate an investigation of the complaint;
• conduct a joint investigation, depending on the nature of the report, with local law enforcement, the Division of Licensing and Regulation, or the Attorney General’s Office (Division of Medicaid Fraud and Abuse Control);
• make a written report of the initial findings together with recommendations for further action, if indicated; and,
• provide assessment, referral and protective services (as appropriate).

If there is some indication or substantiation of child abuse or neglect, law mandates protective services to be provided to the child victim and family members/caregivers (as are appropriate).

Unlike child protective services, adult protective services are voluntary. This means the adult may accept or refuse services offered by DCBS, except in extremely rare and life-threatening situations. (See Section III. F. Emergency Protection / Services).

B. Law Enforcement Agency, County or Commonwealth's Attorney

If an adult or a child may be in imminent danger or may need immediate protection, call the local law enforcement agency or Kentucky State Police.

Reports of child abuse and neglect committed by someone other than the parent, guardian or person exercising custodial control or supervision (such as a friend, neighbor, stranger, etc.) should be made to law enforcement or prosecutors. When the Department for Community Based Services receives this type of report, it will be referred to law enforcement officials for investigation and action, if indicated. DCBS may be requested by law enforcement to assist in the investigation. KRS 620.030 DCBS is required to assist law enforcement in the investigation of reported or suspected cases of child sexual abuse and at the request of law enforcement to participate in the investigation of non-custodial physical abuse or neglect. (KRS 620.040; 431.600)

C. Duty to Warn

Qualified mental health professionals are mandated to warn any clearly or reasonably identifiable victim of threatened physical violence by a patient.The warning should be made by the qualified mental health professional:

1. to communicate through reasonable effort the threat to the intended victim and,
2. to notify the law enforcement agency closest to the patient’s and the intended victim’s residence of the threat of violence.

Upon receipt of the notification, the officer should complete a report on the threatened violence and make efforts to contact the intended victim. The qualified mental health professional and the officer should advise the intended victim of the threatened violence & safety planning. Information about all available legal remedies, protection and support services (i.e., DCBS, shelters) should also be provided.

The qualified mental health professional may also make reasonable efforts to seek civil commitment of the patient under KRS 202A, if indicated, to discharge the duty to provide protection from violent behavior.

D. Coroner

Kentucky law requires any person, hospital or institution in possession of a body whose death occurs under certain circumstances to notify the coroner or the coroner’s deputy and a law enforcement officer immediately. KRS 72.020(1). Among those circumstances which may require notification because of suspected abuse or neglect:

• when the death may be the result of homicide or violence;
• when the death occurs in a state mental institution or hospital and there is no medical history to explain the death; or
• when the manner of death appears to be other than natural.
• deaths within 24 hours of admission in a hospital and occurring during childbirth or in an operation with anesthetic or in the recovery period of 24 hours.

Duty to Report. Death of an adult or child does not relieve persons, including a coroner, of the duty to report known or suspected abuse or neglect to the Department for Community Based Services. If in the course of an examination, the coroner suspects that an adult or child decedent may have been the victim of abuse or neglect, the coroner shall cause a report (oral or written) of this information to be made to the local DCBS -- regardless of whether or not the coroner’s findings indicate the maltreatment in any way contributed to the death of the adult or child. The duty to report exists even though the person may have been a resident of a long-tern care facility and under the treatment of the facility’s medical director or other physician.

Death as a result of neglect or abuse may constitute a homicide within the meaning of KRS Chapter 72, the Coroner’s Inquest and Medical Examiners Act. KRS 72.025(1).A coroner may order, or be required to order, an autopsy where reasonable grounds exist to believe the death any have occurred in circumstances such as those listed above. If the coroner refuses to order an autopsy, the County Attorney or Commonwealth’s Attorney may petition either the district or circuit court for an autopsy order. KRS 72.445.

E. Records

1. Medical Records, X-Rays, Photographs & Specimens

Kentucky law provides that the Cabinet, upon request, shall receive from any agency of the state or any other agency, institution or facility providing services to the adult/child or his family, such cooperation, assistance and information (e.g., agency records) as will enable the cabinet to fulfill its statutory responsibilities. KRS 209.030; 620.030(3)

2. Authority for Investigative Access to Health Care Facilities, Private Premises, & Medical Records

Health Facility or Cabinet-licensed Health Service. Any representative of the Cabinet for Health and Family Services may enter any health facility or health service licensed by the cabinet at any reasonable time to carry out the cabinet’s statutory responsibilities. Any representative of the cabinet actively involved in the conduct of an abuse, neglect or exploitation investigation shall also be allowed access to the mental and physical health records of the adult which are in the possession of any individual, hospital, or other facility if necessary to complete the investigation mandated by law. KRS 209.020(5)

Private Premises. Any representative of the Department for Community Based Services may, with the consent of the adult or caretaker, enter any private premises where any adult alleged to be maltreated is found in order to investigate the need for protective services. Absent consent, and upon a showing of probable cause that an adult is being maltreated, a search warrant may be issued to enable DCBS to proceed with the investigation. KRS 209.020(6)

Other authorities who have access to health care facilities and medical records include: law enforcement agencies; Office of the Attorney General, Medicaid Fraud and Abuse Control Unit; Long Term Care Ombudsman; and U. S. Department of Health and Human Services. Upon presentation of appropriate documentation, access should be granted and/or certified copies of medical records made available to investigative authorities or the court.

3. Inspection of Records of Medicaid Provider

The Medicaid Fraud & Abuse Control Division of the Office of the Attorney General (OAG) can request to inspect records by virtue of the provider’s participation in the Medicaid Program (i.e., investigation and prosecution of fraud in the provision of medical assistance under the Medicaid Program or review of complaints of abuse or neglect of patients of health care facilities which receive Medicaid payments). 42 U.S.C. Section 1396b(q)

Failure to grant the Medicaid Fraud & Abuse Control Division immediate access to clinical records maintained concerning Medicaid patients, or on any patient who may be a victim of physical abuse or neglect, or billing information related to these patients, may result in the provider’s exclusion from further participation in the Medicaid Program under 42 U.S.C. Section 1320a-7(b)(12)(D), 4 U.S.C. Section 1396a(p), and/or a violation of the provider’s agreement as set forth in Section 2.4 of the provider’s manual.

4. Fatality Review Terms

Adults and children, whose deaths may possibly be or are known to be related to abuse, neglect or exploitation may be reviewed by the coroner (county or commonwealth’s attorney), and fatality review teams. Review of these fatalities may include information from reports generated or received by agencies, organizations, or individuals responsible for investigative, prosecution, or treatment in the case. KRS Chapter 211

According to 1996 statute, child fatality review proceedings, records, opinions, and deliberation of local teams shall be privileged and shall not be subject to discovery, subpoena, or introduction into evidence in any civil action in any manner that would directly or indirectly identify specific persons or cases reviewed by the local team. This does not however restrict or limit the right to discover or use in any civil action any evidence that is discoverable independent of the proceedings of the local team.

5. Data Collection

Cases of known and suspected adult and child abuse, neglect and exploitation will be documented on the designated forms. Statistics on these cases are to be collected and prepared monthly, quarterly, and annually by the individuals designated to gather data in each service area.

Back to Table of Contents