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Bismarck, ND 58501-4071

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North Dakota Protection & Advocacy Project

Services: Policies: Programs And Services

G: Protective Services

All people with disabilities have the right to be free from abuse, neglect and exploitation. The Committee on Protection and Advocacy believes the response to all such reports shall be a priority of P&A. Federal and state law provide broad statutory authority for P&A to investigate incidents of alleged abuse and neglect of people with disabilities if there is probable cause to believe the incidents occurred. P&A shall take action, as necessary, to resolve such reports and secure any needed protective services for the individual(s). If the individual refuses protective services, and if that individual has no legally appointed guardian and is able to consent, and the nature of the report does not present probable cause that other unidentified people with disabilities may be at risk, P&A will recognize the right of the individual to live as they choose.

P&A's authority to conduct investigation and monitoring activities and to access individuals' and facilities records is broad and clear. This authority is established in both federal and state law. Specific authority to investigate reports of abuse and neglect of people with developmental disabilities and mental illness and other disabilities can be found in:

  1. Part C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (the DD Act), 42 U.S.C. §§ 15041-15045;
  2. The Protection and Advocacy for Individuals with Mental Illness Act of 1986 (the PAIMI Act), 42 U.S.C. §§ 10801 - 10807, 42 U.S.C. §§ 10821 - 10827), 42 U.S.C. §§ 10841), 42 U.S.C. §§ 10851;
  3. NDCC 25-01.3. The Committee on Protection and Advocacy;
  4. NDAC 65.5-01-04-02. Authority of the project -Investigation;
  5. NDAC 65.5-01-03-01. Access to records -Representation - Investigation of reports of abuse, neglect, or exploitation and complaints.
  6. The Protection and Advocacy of Individual Rights (PAIR) Program of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794e.

A specific procedure will be followed by P&A when a report is received, or when information establishing probable cause that abuse and neglect has occurred or is occurring is brought to the attention of P&A. That procedure includes:

  1. Determining eligibility (P&A jurisdiction).
  2. Obtaining initial information about the allegation.
  3. Assessing risk management and establishing assurances that appropriate steps have been taken to address those concerns.
  4. Conducting investigation activities including:
    1. Collecting evidence
    2. Researching laws, rules and regulations
    3. Analyzing facts, and
    4. Establishing conclusions
  5. Completing appropriate documentation.

P&A shall receive reports from any source, including anonymous reporters and information obtained through the media. Reports may be written, verbal or conveyed through an alternative form of communication. P&A shall ensure that any alternative communication needs identified by a reporter are appropriately accommodated.

Eligibility for services is determined based on the existence of a disability and the establishment of probable cause to suspect that abuse and neglect has occurred. Eligibility is determined based upon the existence of a developmental disability as defined at 42 U.S.C. Chapter 75, Section 6001(8), the existence of a mental illness as defined at 42 U.S.C Part A, Section 10802(4), or the existence of a disability as defined in the Americans with Disabilities Act of 1990 at 42 U.S.C. Section 12101 et seq.

P&A will immediately, upon receipt of a report of suspected abuse and neglect, initiate action to ensure risk management. Simultaneously, the report shall be assessed for probable cause. Probable cause to believe that an individual with disabilities has been subject to abuse or neglect, or is at significant risk of being subjected to abuse or neglect, exists when P&A determines that it is objectively reasonable for a person to entertain that belief.

Once the determination of probable cause is made, an investigation will be initiated. The sequence of steps and the components of an effective investigation are outlined in the Protective Services Procedural Manual. Upon the determination of probable cause, a file will be opened, under the appropriate program and designation.

P&A's investigation and report of findings will be completed within 30 working days of the establishment of probable cause. Extensions of this timeline will be warranted when specific conditions exist (e.g. the report constitutes criminal activity and law enforcement begins an investigation; there is an inability to conduct interviews of significant witnesses; etc.) The need and justification for an extension shall be reviewed with the Unit Director or the Executive Director and documented within the protective services file.

P&A's documentation of reports of alleged abuse or neglect will fall into one of two broad categories. The first category will be for internal purposes only. Two types of documents will be included in this category. The first type of document will be a service note or notes to address reports that result in a "no probable cause" determination or in agency action or corrective action under the "Level System". Documentation will include, to the extent known, the names of the reporter and individual with the disability, date(s) and description(s) of the alleged incident(s), as well as the rationale for a determination of "no probable cause", agency action, or corrective action. The second document will be the investigative report. This document will provide a detail of the investigative efforts, including interview summaries, record reviews and all other activities. This report will also identify the relevant laws, rules and regulations; an analysis of the facts; and a conclusion determining substantiation (validation) or non-substantiation of abuse and/or neglect.

The second category will describe two different types of reports generated to people with disabilities and/or other stakeholders. The first type of report is a formal "letter of findings". This correspondence communicates the conclusion of the P&A investigation to individuals with disabilities, legal decision makers, service providers and other licensing or certifying agencies. These letters are confidential and are a part of the client's file, opened under the name(s) of the alleged victim(s). In these cases, the client and/or legal decision maker, the service provider and the licensing agency will receive a copy of the letter of findings, identifying the specific individual(s). Certifying and/or accrediting agencies will receive a redacted copy, identifying the provider and the location of services.

The second type of report in this category will be a public report, written based on a case or series of cases that raise a systemic issue. This report may take a form similar to a letter of findings, summarizing the conclusion of the P&A investigation or monitoring effort. Another format may be a more detailed analysis of the issues or concerns, a clear summary of the findings of fact and an analysis of the broader systemic implications. This type of a report is intended for distribution to a wide public audience and is intended to have impact on public policy reform.

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