Definitions

For purposes of 115 CMR 9.00 only, the following terms shall have the following meanings: Abuse means an act or omission of a provider that results in serious physical injury or serious emotional injury to an individual. However, no individual shall be considered to be abused for the sole reason that such individual 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; nor for the sole reason that, consistent with the stated or implied wishes of a competent individual or a duly appointed representative of an incapacitated person, he or she is not receiving medical treatment or care. (MA REG. # 1336, Dated 4-7-17) Abuse Per Se means an act or omission of a provider that includes or results in the following, regardless of whether a serious physical injury or serious emotional injury is manifested: (a) sexual abuse; (b) the withholding of an individual's adaptive aids, provided that such withholding is unrelated to safety, care, or treatment. Examples of withholding of adaptive aids include, but are not limited to, prevention of access to and/or removal of the sole means of communication for an individual who is deaf, hard-of-hearing, or has communication deficits, or the prevention of access to and/or removal of the sole apparatus to assist mobility, in the case of an individual with a physical disability; (c) a pattern of touching neither required nor appropriate for tending to the safety and welfare of an individual. For purposes of 115 CMR 9.02: Abuse Per Se(c) only, the term "pattern" shall mean "two or more separate instances of touching"; (d) the intentional, wanton, or reckless application of physical force in a manner that inflicts physical pain or serious emotional injury as determined by an evaluation of the totality of the circumstances. For the purposes of 115 CMR 9.02: Abuse Per Se(d) only, when a person as a result of his or her disability is unable to express or demonstrate a serious emotional injury or a reaction to physical pain, the investigator may use the reasonable person standard solely for the purposes of evaluating whether the intentional, wanton, or reckless application of physical force inflicted physical pain or serious emotional injury. Using the reasonable person standard, the investigator determines whether, by a preponderance of the evidence, given the same set of factual circumstances, a reasonable person would have experienced physical pain or serious emotional injury. The term "reasonable person" shall mean "a person who in similar circumstances would exercise the qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of him or herself and the interest of others". Act means an intentional, reckless, or negligent action regardless of whether the act is performed with intent to harm. Administrative Review means the process for resolving a complaint by the regional director or his or her designee as described in 115 CMR 9.11. Assault means to physically strike or attempt to physically strike. Complainant means any person who files a complaint under 115 CMR 9.00 and/or M.G.L. c. 19C. Complaint means an allegation communicated to the Department of an incident, condition or other occurrence which meets any of the criteria set forth in 115 CMR 9.05. Complaint Resolution Team or CRT means a group convened within each area and facility office that consists of Department personnel and citizen members and whose purpose is to review all complaints meeting the criteria set forth in 115 CMR 9.05 and develop action plans and resolution letters. Day means a business day. DPPC means the Disabled Persons Protection Commission. Financial Exploitation means the illegal or improper use of an individual’s financial resources in an amount over $250 for personal profit or gain. Frivolous means utterly devoid of merit. All complaints filed pursuant to 115 CMR 9.00 are presumptively non-frivolous unless the senior investigator determines the complaint (a) involves matters not within the scope of 115 CMR; (b) is clearly impossible on its face; or (c) asserts similar allegations to a complaint previously filed concerning the same parties and allegedly occurring at approximately the same time, which was proven to be unsubstantiated. General Counsel means the person serving as chief legal counsel to the commissioner as set forth in M.G.L. c. 19B, § 5. Medico-legal Death means: (a) a death of any individual if the medical examiner takes jurisdiction; (b) death that appears to have resulted from unusual or suspicious circumstances; (c) death which may have been caused by violence, including sexual abuse; or (d) any other death required by M.G.L. c. 38, § 6 to be reported to the medical examiner. Omission means a failure, whether intentional or not, to take action to protect an individual or to provide for an individual’s daily living necessities including, but not limited to, failing to prevent another person from inflicting upon an individual any activity within the definition of abuse. Party means: (a) the alleged victim and/or his or her guardian or legally authorized representative; (b) the person or persons complained of or allegedly responsible for the incident, condition, or occurrence (the alleged abuser(s)); (c) the human rights committee of the provider agency serving the alleged victim; and, (d) the executive director or head of the provider agency serving the alleged victim. Reportable Condition means an incident, condition or occurrence of abuse, abuse per se, assault, sexual abuse, financial exploitation, mistreatment as defined by 115 CMR 5.05: Standards to Promote Dignity: Mistreatment, or any incident, condition or occurrence that meets the criteria set forth in 115 CMR 9.05(1) through (3). Serious Emotional Injury means an injury to the intellectual functioning or emotional state of an individual caused by conduct that includes but is not limited to: coercion; harassment; the inappropriate isolation of an individual from family, friends, or regular activity; and verbal assault such as ridicule, intimidation, yelling or swearing. A serious emotional injury is evidenced by an observable and measurable reduction in the individual’s ability to function from the individual’s customary range of performance or customary behavior, such as, a state of anxiety, fear, depression, withdrawal, or the development of post-traumatic syndrome. The fact that the reduction in functioning does not extend for a particular period of time does not preclude a finding that a serious emotional injury has occurred; the length of time the reduction lasts must be evaluated in conjunction with the severity of the reduction in determining whether a serious emotional injury has occurred. Serious Physical Injury means a physical condition that includes, but is not limited to: death; brain damage; permanent disfigurement; any burn excluding sunburn of the first degree; fracture of any bone; subdural hematoma; intramuscular injury; bruising, abrasion, laceration or puncture of the skin; bleeding; impairment of a bodily system, function, limb or organ including human skin; bedsores or similar condition, or harmful symptoms resulting from the use of medication or chemicals improperly dispensed or without informed consent or appropriate authorization; or malnutrition or dehydration. Serious Risk of Harm means a significant exposure to serious physical or serious emotional injury. Sexual Abuse occurs when a provider forces, tricks, threatens, coerces, exploits or otherwise engages an individual or permits another person to force, trick, threaten, coerce, exploit, or otherwise engage an individual in an un-assented to sexual activity. Sexual activities may include but are not limited to unwanted or inappropriate touching, kissing, touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes or genitalia; or any un-assented to sex act including but not limited to: sexual intercourse; sexually explicit photographing, including the use, publication or dissemination of nude or sexually explicit photographs or recordings to exploit, manipulate, threaten or coerce; or exposure to sexually explicit material, activity or language. Sexual abuse also includes, but is not limited to, instances in which: (a) an individual lacks the capacity to assent to the sexual activity, even if the individual has purportedly assented; or (b) due to the nature of his or her disability, fear of retribution or hardship, or the inequality of position and power, the individual was in appropriately engaged in the sexual activity.