651 CMR, § 5.02

Current through Register 1533, October 25, 2024

Section 5.02 - Definitions

As used in 651 CMR 5.00, these terms shall have the following meanings:

Abuse. An act or omission, including Emotional Abuse, Financial Exploitation, Neglect, Physical Abuse, Sexual Abuse, and/or Self-neglect, which results in Serious Physical Injury or emotional injury to an Elder, or Financial Exploitation of an Elder; provided, however, that no person shall be considered to be abused or neglected for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner thereof.

Aging Services Access Points (ASAPs). Locally based private, non-profit corporations which contract with the Department to provide community based services to certain Eligible Elders in accordance with M.G.L. c. 19A, § 4B.

Capability to Respond to an Emergency. The capability of a Protective Services Agency to, in an Emergency:

(a) immediately initiate the Investigation;

(b) determine the need for an in home visit and/or other response, and initiation of this response, within five hours of the receipt of the report;

(d) provide services to alleviate the Emergency condition. Where appropriate, such services may include a petition to the Court for an Emergency order of Protective Services pursuant to M.G.L. c. 19A, § 20(b) and in accordance with 651 CMR 5.16 and 5.17.

Capability to Respond to a Rapid Response Situation. The capability of a Protective Services Agency to, in a Rapid Response situation:

(a) immediately initiate the Investigation;

(b) determine the need for an in home visit and/or other response, and initiation of this response, within 24 hours of the receipt of the report;

(d) provide services to alleviate the Rapid Response situation where appropriate, and consistent with 651 CMR 3.00: Home Care Program, 5.00 and M.G.L. c. 19A, § 4B and any applicable regulations.

Caretaker. The person(s) responsible for the care of an Elder, which responsibility may arise as the result of the following:

(a) Family Relationships. A husband, wife, son, daughter, brother, or sister, or other relative of an Elder shall be presumed to be a Caretaker if she or he is living with the Elder on a regular basis or is otherwise acting in the role of Caretaker by providing substantial assistance to the Elder which would lead a reasonable person to believe that she or he is acting in the role of Caretaker. Exceptions are minor children and adults adjudicated as incompetent by a court of law.

(2) Fiduciary Relationships Imposed by Law. A Guardian of the person and assets of an Elder appointed by the Probate Court pursuant to M.G.L. c. 190B shall be a Caretaker. A Conservator of an Elder appointed by the Probate Court pursuant to M.G.L. c. 190B, shall be Caretaker of said Elder to the extent that he or she must apply the assets of the Elder to provide the necessities essential for the physical, intellectual and emotional well-being of the Elder. The attorney-in-fact, holding a power of attorney or durable power of attorney pursuant to M.G.L. c. 190B, shall be Caretaker of the Elder granting such a power to the extent that the power of attorney or durable power of attorney requires him or her to apply the assets of the Elder to provide the necessities essential for the physical, intellectual and emotional well-being of the Elder.

(c) Contractual Relationships. A person(s) who is responsible for the care of an Elder and receives monetary or personal benefit or gains as a result of a bargained for agreement with the Elder to act as a Caretaker shall be a Caretaker. A homemaker, home health aide, case manager, visiting nurse or employee of a Homemaker Service Agency, Home Care Program or Agency, or Visiting Nurses Association shall not be a Caretaker under this definition.

(d) The Voluntary Assumption of Caretaker Duties. A person(s) who undertakes a voluntary duty of care for an Elder shall be presumed not to be a Caretaker unless one or more of the following criteria are met by the reputed Caretaker:

1. The reputed Caretaker is living in the household of the Elder. Exceptions are minor children and adults adjudicated as incompetent by a court of law.

2. The reputed Caretaker is related to the Elder and he or she has acted or is acting by providing substantial assistance or in such a manner as to lead a reasonable person to believe that he or she is acting as a Caretaker.

3. The care being rendered by the reputed Caretaker is of a permanent and not temporary duration in that the reputed Caretaker maintains a physical presence in the household on a regular basis.

4. The Elder by his or her actions, statements, or behavior, indicates reliance upon the reputed Caretaker for care in such a manner that a reasonable person would believe that the reputed Caretaker is being relied upon by the Elder to care for him or her.

5. The reputed Caretaker, by his or her actions, statements, or behavior, indicates voluntary assumption of the obligation of Caretaker in such a manner that a reasonable person would believe that the reputed Caretaker is being relied upon to care for the Elder.

Conservator. A person who is appointed to manage the estate of a protected person pursuant to M.G.L. c. 190B.

Court. The Probate and Family Court of the Commonwealth.

Data Subject. An individual to whom Personal Data refers. Data Subject shall not include corporations, corporate trusts, or other similar entities.

Decisional Capacity. An Elder's ability to:

(a) understand and appreciate the nature and consequences of decisions, including the benefits and risks of and alternatives to any proposed Protective Services; and

(b) reach an informed decision while free from any apparent duress, intimidation, coercion, use of force, or threat of force by another.

Department. The Executive Office of Elder Affairs of the Commonwealth of Massachusetts.

Designation Agreement. An agreement between the Department and a Protective Services Agency providing for designation of such agency as a Protective Services Agency for a Protective Services area, which provides for such Agency to provide one or more Protective Services either directly or through subcontract with funding through the Department, or by interagency agreement, or by use of available existing services.

Elder. An individual who is 60 years of age or older.

Elder Abuse Hotline. A component of the Protective Services Program that allows the submission of reports of Abuse on a 24 hour per day, seven day per week basis.

Eligible Elder. An Elder who, as a result of an Investigation by a Protective Services Agency, has been determined to be suffering from a Reportable Condition, is in need of one or more Protective Services, and has themselves or through the provisions of M.G.L. c. 19A, §§ 20(a) and 20(b) consented to the provision of one or more Protective Services.

Emergency. An abusive situation in which an Elder is at risk of:

(a) imminent death;

(b) immediate and Serious Physical Injury or emotional harm; and/or

Emotional Abuse. Any intentional act or omission, including but not limited to verbal abuse, confinement, isolation, humiliation, intimidation or any other act or omission that:

(a) results in significant harm to the emotional state, Decisional Capacity or Functional Capacity of an Elder; or

(b) creates a reasonable risk of significant harm to the emotional state, Decisional Capacity or Functional Capacity of an Elder.

Financial Exploitation. An intentional act or omission by another person, without the consent of the Elder, which causes substantial monetary or property loss to the Elder or substantial monetary or property gain to the other person which gain would otherwise benefit the Elder, but for the act or omission of the other person. Financial exploitation may result from consent obtained as a result of misrepresentation, undue influence, coercion or threat of force by the other person. Financial exploitation may not result from a bona fide gift or from any act or practice by another person in the conduct of a trade or commerce prohibited by M.G.L. c. 93A, § 2.

Functional Capacity. An Elder's ability to physically perform and complete desired tasks or activities of daily living in a safe and consistent manner.

Guardian. A person who has qualified as a guardian of an Elder pursuant to testamentary or court appointment pursuant to M.G.L. c. 190B, but shall not include a guardian ad litem.

Holder. The Department, the Elder Abuse Hotline, each Protective Services Agency and guardianship or conservatorship agency which collects, uses, maintains or disseminates Personal Data as a result of performing a governmental or public function or purpose under M.G.L. c. 19A, §§ 14 through 26. Each Protective Services Agency, each guardianship or conservatorship agency, and the Elder Abuse Hotline is a Holder and subject to the provisions of 651 CMR 5.00 only with respect to Personal Data held under contract or arrangement with the Department under the Elder Protective Services Program.

Home Care Program. A program of home care services for Elders operated by the Commonwealth pursuant to the requirements of 651 CMR 3.00: Home Care Program.

Home Care Services. The services under the Home Care Program, either direct or purchased, which are designed to assist Elders to secure and maintain independent living in a home environment and which are available for support through funds administered by the Department pursuant to 651 CMR 3.01: Scope and Purpose.

Investigation. The process of objective information gathering for the purposes of:

(a) assessing reported allegations of Abuse;

(b) evaluating the condition of the Elder including the Decisional Capacity and Functional Capacity of the Elder in order to determine if there is Reasonable Cause to Believe that the Elder is suffering from Abuse;

Legal Assistance. Legal advice and representation provided to an Eligible Elder by an attorney in civil matters (and where appropriate, counseling and other assistance by a paralegal or law student under the supervision of an attorney), including counseling or representation by a non-lawyer where permitted by law, to Elders who are determined to be Abused.

Mandated Reporter Not Subject to Fine. Any executive director of a Home Care Program who has Reasonable Cause to Believe that an Elder is suffering from or has died as the result of a Reportable Condition. Any homemaker, home health aide, case manager or other staff of a Home Care Program, licensed home health agency, or homemaker service agency who is not a licensed social worker, nurse, licensed psychologist, or family counselor, who has Reasonable Cause to Believe that an Elder is suffering, or has died from a Reportable Condition, shall be included in this category.

Mandated Reporter Subject to Fine. Any physician, physician assistant, medical intern, dentist, nurse, family counselor, probation officer, social worker, police officer, firefighter, emergency medical technician, licensed psychologist, coroner, registered physical therapist, registered occupational therapist, osteopath, podiatrist, director of a council on aging, outreach worker employed by a council on aging, executive director of a licensed home health agency or executive director of a homemaker service agency or manager of an assisted living residence who has Reasonable Cause to Believe that an Elder is suffering from or has died as a result of a Reportable Condition.

Neglect. The failure or refusal by a Caretaker to provide one or more of the necessities essential for physical well-being, such as food, clothing, medication, shelter, personal care, and medical care, which has resulted in Serious Physical Injury to an Elder; or a Reasonable Cause to Believe that such failure or refusal will immediately result in Serious Physical Injury to an Elder.

Neglect shall be determined by consideration of each of the following factors:

(a) the Elder's ability to meet his or her own needs.

(b) a history of dependence on a Caretaker.

(d) the expectation or desire of the Elder of continuing to receive care provided by the Caretaker.

Personal Data. Any information concerning an individual which, because of identifying number, mark or description, can be readily associated with a particular individual; provided, however, that such information is not contained in a Public Record, as defined in M.G.L. c. 4, § 7, clause 26. Personal data shall not include intelligence information, evaluative information or criminal offender record information as defined in M.G.L. c. 6, § 167.

Personal Data System. A system of records operated by the Department, each guardianship agency, and each Protective Services Agency, and the Elder Abuse Hotline which system is organized such that data are retrievable by use of the identity of the Data Subject.

Physical Abuse.

(a) The intentional infliction of Serious Physical Injury to an Elder; or

(b) a threat to inflict Serious Physical Injury to an Elder for which the Protective Services Agency has Reasonable Cause to Believe that the party or parties making the threat possess(es) the intent and apparent ability to carry out the threat.

Protective Order. An order of the Court sought by a petition under M.G.L. c. 19A, § 20(a) (non-emergency) or 20(b) (emergency) for the provision of one or more Protective Services for an Elder who is suffering from a Reportable Condition and either lacks the Decisional Capacity to consent to Protective Services or requires the determination of his or her Decisional Capacity to consent to Protective Services.

Protective Services. Services which are necessary to prevent, eliminate or remedy the effects of Abuse to an Elder. Subject to appropriation, these services shall include, but not be limited to, the following:

(a) Provide a response to an Emergency and/or Rapid Response Situation;

(b) Arrange for Home Care Services;

(d) Arrange for counseling;

(e) Pursue the issuance of a Protective Order, when appropriate;

(f) Petition the Court for the appointment of a Guardian and/or Conservator.

Protective Services Agency. A public or nonprofit private agency, corporation, board, or organization designated by the Department pursuant to M.G.L. c. 19A, § 16 to furnish Protective Services to an Eligible Elder.

Protective Services Casework. Activities conducted by a Protective Services Agency including: conducting an Investigation to determine if an Elder is suffering from Abuse; developing a Service Plan; providing or arranging for Protective Services to an Eligible Elder with his or her consent established in accordance with the provisions of M.G.L. c. 19A, §§ 20 (a) or 20 (b); providing information and referral to appropriate agencies; having the Capability to Respond to an Emergency; having the Capability to Respond to a Rapid Response Situation; and arranging counseling for Elders regarding the alleviation or prevention of Abuse and the availability of services.

Protective Services Caseworker. An employee of a Protective Services Agency who performs intake and/or Investigation and Service Plan development and other Protective Services Casework functions under the Elder Protective Services Program. A Protective Services Caseworker must meet the following qualifications:

(a) A Masters or higher degree from an accredited school in social work, psychology, counseling, human development, nursing, sociology, criminal justice, public health, public policy, or gerontology, and at least one year of experience in counseling, casework, case management, preferably in a Protective Services or crisis intervention role; or

(b) A Bachelors' degree from an accredited school in social work, psychology, counseling, human development, nursing, sociology, criminal justice, public health, public policy, or gerontology, and at least two years of experience in counseling, casework or case management providing protective or crisis intervention services.

Protective Services Program. The system of accepting reports of Abuse, the Investigation of such reports, and the provision of Protective Services authorized to be carried out by the Department pursuant to M.G.L. c. 19A, §§ 14 through 26, subject to appropriation.

Protective Services Supervisor. An employee of a Protective Services Agency who manages the work of Protective Services Caseworkers and ensures the effective and efficient management of Protective Services Casework. A Protective Services Supervisor must meet the following qualifications:

(a) A Masters or higher degree from an accredited school in social work, psychology, counseling, human development, nursing, sociology, criminal justice, public health, public policy, or gerontology, and at least two years of experience in counseling, casework, case management, preferably in a Protective Services or crisis intervention role; or

(b) A Bachelors' degree from an accredited school in social work, psychology, counseling, human development, nursing, sociology, criminal justice, public health, public policy, or gerontology plus at least three years of experience in counseling, casework or case management providing protective or crisis intervention services.

Public Records. Any document or record as identified in M.G.L. c. 4.

Rapid Response. A non-emergency, but urgent situation in which an Elder is living in conditions which present a potential, or rapidly developing risk of Serious Physical Injury or emotional harm; or a potential, or developing risk of immediate, substantial and irrevocable financial loss.

Reasonable Cause to Believe. A basis for judgment that rests on specific facts, either directly observed or obtained from reliable sources, that supports a belief that it is more probable than not that a particular event took place or a particular condition exists.

Reportable Condition. Any one or more of the following:

(a) Abuse;

(b) Physical Abuse;

(d) Emotional Abuse;

(e) Neglect;

(f) Self-neglect; and

(g) Financial Exploitation.

Self-neglect. Based on a Reasonable Cause to Believe, the failure, refusal, inability, or resistance of an Elder to provide for himself or herself one or more of the necessities essential for physical or emotional well-being, including but not limited to, food, clothing, shelter, necessary medications, and/or personal care, which has resulted in:

(a) Serious Physical Injury or emotional harm; or

(b) the risk of imminent Serious Physical Injury or emotional harm.

The following factors will be considered when making a determination of Self-neglect:

1. the presence of mental or physical impairments, substance abuse, and/or cultural or linguistic barriers;

2. the Elder's Decisional Capacity to make informed decisions and knowingly appreciate the consequences of such decisions;

3. the involvement or availability of other service providers to meet one or more of the Elder's essential needs when acting within the scope of their responsibility;

4. the willingness and capability of family members and friends to meet one or more of the Elder's essential needs; and/or,

5. the Elder's physical and mental condition, and the potential for the situation to escalate to the point where the Elder would be seriously harmed without intervention.

Serious Physical Injury. A status of an Elder as determined by a Protective Services Agency based on a review of the following factors:

(a) the Elder's physical condition;

(b) the type, size, shape, number and location of physical injuries;

(d) the emotional impact on the Elder; and

(e) the potential for escalation of Abuse.

Service Plan. A written document created by a Protective Services Agency describing the actions and services needed to prevent, eliminate or alleviate the Abuse of an Elder. Actions and services may be provided by Caseworkers, Elders, Caretakers, relatives, friends, human service and health services professionals, and others depending on the Eligible Elder's needs and the availability of resources. Each Service Plan shall include:

(a) clear and specific statement(s) of the problem(s) contributing to the Abuse;

(b) specific and measurable action steps which are designed to address each problem statement; and

Sexual Abuse. Sexual assault, rape, sexual misuse, or sexual exploitation of an Elder or threats of Sexual Abuse where the individual has the intent and apparent ability to carry out the threatened Sexual Abuse.

651 CMR, § 5.02

Amended by Mass Register Issue 1330, eff. 1/13/2017.