Section 1240-07-03-.02 - DEFINITIONS(1) "Abuse" means the infliction of physical pain, injury, or mental anguish on an adult as defined in this Chapter. Nothing in this Chapter shall be construed to mean a person is abused or neglected or in need of protective services for the sole reason that the person relies on or is being furnished treatment by spiritual means through prayer alone in accordance with a recognized religious method of healing in lieu of medical treatment.(2) "Adult" means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person's own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services. Provided, however, that a person eighteen (18) years of age or older who is mentally impaired, but still competent, shall be deemed to be a person with a mental dysfunction for the purposes of this Chapter.(3) "Advanced Age" means sixty (60) years of age or older.(4) "Capacity to consent" means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts. A decision itself to refuse services cannot be the sole evidence for finding the person lacks capacity to consent.(5) "Caretaker" means an individual or institution who has the responsibility for the care of the adult as a result of family relationship, or who has assumed the responsibility for the care of the adult person voluntarily, or by contract, or agreement.(6) "Department (DHS)" means the Department of Human Services.(7) "Exploitation" means the improper use by a caretaker of funds that have been paid by a governmental agency to an adult or to the caretaker for the use or care of the adult.(8) "Indicated perpetrator" or "indication" means a paid caregiver of an adult has been determined by the Department to have committed or to have caused to be committed abuse, neglect, or exploitation of an adult.(9) "Imminent danger" means conditions calculated to and capable of producing within a relatively short period of time a reasonable probability of resultant irreparable physical or mental harm or the cessation of life, or both, if such conditions are not removed or alleviated. However, the Department is not required to assume responsibility for a person in imminent danger pursuant to this Chapter except when, in the Department's determination, sufficient resources exist for the implementation of the Act.(10) "Investigation" means, but is not limited to, a personal interview with the individual reported to be abused, neglected, or exploited. When abuse or neglect is allegedly the cause of death, a coroner's or doctor's report shall be examined as part of the investigation.(11) "Misappropriation" means any taking, possession or use of the property of a vulnerable person the elements of which constitute any criminal offense involving such property, or which constitute a violation of a fiduciary duty of a caretaker of a vulnerable person.(12) "Neglect" means the deprivation of services by a caretaker that are necessary to maintain the health and welfare of an adult or a situation in which an adult is unable to provide or obtain the services that are necessary to maintain that individual's health or welfare.(13) "Paid Caregiver" or "Paid Caretaker" means:(a) For purposes of indication of an individual as having committed abuse, neglect or exploitation of an adult, and for the purpose of providing due process prior to the release of information regarding such indication of abuse, neglect or exploitation of an adult, and for placement on the Vulnerable Persons Registry, a "paid caregiver" or "paid caretaker" is an individual who, for compensation, provides daily or periodic supervision of an adult or some level of service or activity directed toward meeting the personal needs and care of an adult, including, but not limited to, in-home care or supervision of the adult or housekeeping services for the adult, medical, psychiatric, psychological, health, and/or health-related care or services, or, as part of any aspect of meeting the personal needs and care of the adult, has access to or control of the property of the adult:1. Through employment or through contractual arrangement with the adult or through another individual or entity;2. By written or oral agreement with the adult; or3. By course of conduct between such individual and the adult.(b) For purposes of protecting vulnerable persons, a paid caretaker or paid caregiver is any person who has been indicated by the Department as a perpetrator of abuse, neglect or exploitation of an adult, who, for compensation, provides daily or periodic supervision of a vulnerable person or some level of service or activity directed toward meeting the personal needs and care of a vulnerable person, including, but not limited to, in-home care or supervision of the vulnerable person or housekeeping, child care or adult day care services for the vulnerable person, medical, psychiatric, psychological, health, and/or health-related care or services, to the vulnerable person, or, as part of any aspect of meeting the personal needs and care of the vulnerable person, has access to or control of the property of the vulnerable person:1. Through employment or through contractual arrangement with the vulnerable person or through another individual or entity;2. By written or oral agreement with the vulnerable person; or3. By course of conduct between such individual and the vulnerable person.(c) A paid caretaker or paid caregiver does not include individuals who, individually or through employment or by contract with any entity, provide services to the general public that typically consist solely of business-related services, such as, but not limited to, financial services by a bank, credit union, brokerage house, accounting or legal or other business services by individuals licensed or representing themselves to be licensed to provide such services, nor does it include repair or construction work, food services, or professional services by other licensed or unlicensed individuals or by any individual through employment or contract with any entity that does not engage in providing services of the types described in subparagraph (a).(d) A financial institution is not a caretaker of funds or other assets, and is not a paid caretaker or paid caregiver of a vulnerable person unless such financial institution has entered into an agreement to act as a trustee of such property or has been appointed by a court of competent jurisdiction to act as a trustee with regard to the property of the adult.(14) "Property" means all interests of any type in real property, and any interests of any type in personal property whether in monies or financial instruments of any type, goods, furnishings, and similar property; provided, however, that for purposes of reporting to the registry established by T.C.A. 68-11-1001 et seq., property shall only consist of funds paid by a governmental agency to an "adult" as defined in T.C.A. § 71-6-102, if the report of abuse , neglect, exploitation is investigated by the Department of Human Services pursuant to Title 71, Chapter 6, Part 1 of the Tennessee Code Annotated.(15) "Protective Services" means services undertaken by the Department with or on behalf of an adult in need of protective services who is being abused, neglected, or exploited. These services may include, but are not limited to, conducting investigations of complaints of possible abuse, neglect, or exploitation to ascertain whether or not the situation and condition of the adult in need of protective services warrants further action; social services aimed at preventing and remedying abuse, neglect, and exploitation; services directed toward seeking legal determination of whether the adult in need of protective services has been abused, neglected or exploited and procurement of suitable care in or out of the adult's home.(16) "Sexual Abuse" means the forcing, tricking, threatening or otherwise coercing of an adult, as defined by these rules, by another individual into sexual activity, involuntary exposure to sexually explicit material or language, or sexual contact against such adult's will. Sexual abuse also means sexual activities or contact with another individual when the adult is unable to give consent.(17) "Vulnerable person" means anyone who: (a) Is under eighteen (18) years of age; or(b) Is eighteen (18) years of age or older and, by reason of advanced age or other physical or mental condition, is vulnerable to or has been determined to have suffered from abuse, neglect or misappropriation or exploitation of property and is or has been: 1. The subject of any report of harm, abuse, neglect, or exploitation of property made to any state agency or investigative authority with responsibility to investigate those reports pursuant to Tennessee Code Annotated, Title 37, Chapter 1, Parts 1 or 6, Title 71, Chapter 6, Part 1, or pursuant any other provision of law or regulation; or2. Receiving protective services from a state agency pursuant to law; or3. The victim of any criminal offense that constitutes abuse, neglect, or misappropriation or exploitation of property; or4. In the care of either a state agency, an entity that is licensed or regulated by a state agency, or in the care of an entity providing services under the provisions of a contract between that entity and a state agency; or5. Receiving services in the person's home from any agency licensed or regulated by or contracted to a state agency, including, but not limited to home and community-based services, home health care, or other heath care-related services provided through state or federal funds to assist persons to remain in their homes.(18) "Vulnerable Persons Registry" or "Registry" means:(a) The registry established by the Department of Health under Tennessee Code Annotated, Title 68, Chapter 11, Part 10, containing the names of individuals who have abused, neglected vulnerable persons, or who have, exploited or misappropriated the property of vulnerable persons; and(b) That is used by employers when making decisions for employees or other service providers for positions which require background checks, such as for child care and adult day care agencies and other services to vulnerable persons, or by any governmental agency to review the status of persons subject to its regulatory oversight authority.Tenn. Comp. R. & Regs. 1240-07-03-.02
Chapter 1240-07-03 has been assigned a new control number, removed, and renumbered to Chapter 02500-7-03 filed and effective March 25, 1999. Original rule filed September 20, 2010; effective December 19, 2010.Authority: T.C.A. §§ 4-5-202;68-11-1004; 71-6-101 et seq.; 71-6-102; 71-6-103(a).