Overview
In our prior audit, we found that the Disabled Persons Protection Commission (DPPC) did not ensure that required forms were signed to document that alleged abusers were advised of their rights before being interviewed.
In our current audit, we found that DPPC did not always ensure that alleged abusers were advised of their rights before being interviewed for abuse investigations. In 7 of the 94 cases in our sample, the alleged abusers were not advised of their rights, and the investigators did not document in the 19C report why this requirement was not met. Two additional cases did not contain justification for not advising the alleged abuser of the interview rights. Without such documentation, there is inadequate assurance that the alleged abusers were made aware of, and understood, their rights and legal obligations regarding the investigations.
Authoritative Guidance
Section 5.02(2) of Title 118 of the Code of Massachusetts Regulations (CMR) states that alleged abusers of people with disabilities have the following rights when being interviewed as part of DPPC abuse investigations:
- to be accompanied during an interview by a person of his or her own choice who is 18 years of age or older; provided, that said companion shall not be a supervisor or administrator employed by the alleged abuser’s employer, unless requested by the alleged abuser and agreed to by the investigator; or is not otherwise involved or has an interest in the matter under investigation. Other than being present during the interview, said companion shall not participate in the actual conduct of the interview;
- to be informed of the existence of the complaint and the general nature of the allegations. Under no circumstances shall the identity of the reporter be disclosed;
- to be informed that if he or she falls within the category of a mandated reporter, he or she has an obligation pursuant to M.G.L. c. 19C to cooperate in the investigation and truthfully provide to the investigator all information he or she may possess that is relevant to the matter under investigation; and
- to be informed that his or her refusal to be interviewed or to otherwise cooperate in the investigation will be made a part of the report, and that if the person is an employee of a state agency, unless his or her response to a question could be used against him or her in a criminal proceeding, his or her failure to cooperate shall be reported to the person’s supervisor and to the appropriate public agency for possible disciplinary action under that agency’s regulations or pursuant to the provisions of any relevant collective bargaining agreement or any other contract.
Accordingly, DPPC’s investigation policy “Invest-137” states,
2. Prior to commencing an interview of an individual being considered as an [alleged abuser], the 19C investigator will provide the individual with a copy of the DPPC Notice of Alleged Abuser’s Rights During DPPC Investigation Interview. . . .
4. The investigator will enter a check in the box on the 19C Investigation Report Form documenting that the DPPC Notice of Alleged Abuser’s Rights During DPPC Investigation Interview was provided to the [alleged abuser].
According to 118 CMR 5.02(1)(i), each investigation should include an interview with the alleged abuser. According to 118 CMR 5.02(1)(o), if an investigator cannot fulfill one or more of the requirements in 118 CMR 5.02, the investigator must provide an explanation in the 19C report for a DPPC oversight officer to review and approve.
Reasons for Noncompliance
DPPC had not implemented effective monitoring controls to ensure that alleged abusers were advised of their rights before being interviewed for abuse investigations.
Recommendation
DPPC should enhance its policies and procedures by implementing effective monitoring controls to ensure that alleged abusers are made aware of their rights before being interviewed for abuse investigations.
Auditee’s Response
First, DPPC reiterates from the previous audit (2015-0046- 3S) its disagreement with the audit’s characterization of the requirement of 118 CMR 5.02 (2). Pursuant to 118 CMR 5.02 (2), an alleged abuser has certain rights available during an investigatory interview. That regulation does not require the alleged abuser receive written notification of these rights, nor does it require the alleged abuser sign a form acknowledging he/she has been advised of these rights.
Second, DPPC did in fact implement effective monitoring and controls to ensure alleged abusers were advised of their rights. In response to a recommendation made in the previous audit, DPPC created policy and procedure Invest-137. Pursuant to Invest-137, the DPPC added a checkbox to the 19C Investigation Report Form where the investigator documents that the “DPPC Notice of Alleged Abuser’s Rights During DPPC Investigation Interview” was provided to an alleged abuser and also added a field to its database to track this information. Because there is no statutory or regulatory requirement that the alleged abuser receive written notification of their rights or that the alleged abuser signs an acknowledgment form, a verbal advisement of these rights to the alleged abuser by the investigator is sufficient. . . .
DPPC’s new database is a customized relational database that went live on July 1, 2020, and DPPC continues to work to tailor the new database to best meet the needs of DPPC operations. Regarding the notice of alleged abuser rights, DPPC developed a uniform web-based investigations form which forces the investigator to indicate for each named alleged abuser whether he/she was advised of rights during a DPPC investigation interview, and if not, a required field to explain why that did not occur. Therefore, DPPC has already updated its operations to improve the clarity of the notification of rights process.
Auditor’s Reply
We recognize that DPPC regulations do not require an alleged abuser to sign a Notice of Alleged Abuser’s Rights. However, DPPC’s investigation policy “Invest-137” states,
2. Prior to commencing an interview of an individual being considered as an [alleged abuser], the 19C investigator will provide the individual with a copy of the DPPC Notice of Alleged Abuser’s Rights During DPPC Investigation Interview.
This policy further requires 19C investigators to document that notification of the alleged abuser’s rights has been completed by checking the associated box on the 19C Investigation Report Form. Our testing in this area did not involve reviewing 19C files to determine whether there were signed Notices of Alleged Abuser’s Rights in the sampled files. Rather, we deemed 19C investigators checking the appropriate box on the 19C Investigation Report Form sufficient to indicate that they had provided the Notice of Alleged Abuser’s Rights to the alleged abuser. As previously stated, we determined compliance using DPPC’s investigation policy “Invest-137.” As discussed in a meeting with DPPC, we also accepted an investigator’s notation in the 19C report of verbal advisement via phone call to be sufficient evidence that alleged abusers had been advised of their interview rights.
DPPC asserts that it has implemented effective monitoring controls, but as noted above, we found nine instances where a 19C investigator neither indicated that the alleged abuser had been advised of his/her interview rights nor provided an explanation of the reason for this for the DPPC Oversight Unit to review. Had the monitoring controls been effective, the issues discussed in this finding would have been identified.
Based on its response, DPPC is taking measures to address our concerns on this matter.
| Date published: | June 16, 2021 |
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