Abuse - an act or omission which results in serious physical or emotional injury to a disabled person; provided, however, that no person shall be considered to be abused 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. M.G.L. c. 19C, §1.
Abuse Per Se. An Act or Omission of a Caretaker 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 adaptive aids used by the Person with a Disability, provided that said withholding is unrelated to safety, care or treatment;
Commentary: For purposes of 118 CMR 2.02: Abuse Per Se (b), examples of the withholding of adaptive aids include, but are not limited to, prevention of access to and/or removal of a presently relied upon means of communication, in the case of a deaf or hard of hearing person or other Person with a Disability with communication deficits, or of a presently relied upon apparatus to assist mobility, in the case of a Person with a Physical Disability.
(c) a pattern of touching neither required nor appropriate for tending to the safety and welfare of a Person with a Disability. For purposes of 118 CMR 2.02: 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 a 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 exclusive purposes of 118 CMR 2.02: Abuse Per Se (d), 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 a 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.
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 himself or herself and the interest of others." 118 CMR 2.02.
- Act - a caretaker's intentional, reckless, or negligent action regardless of whether the act is performed with an intent to harm. 118 CMR 2.02.
- Caretaker - a [person with a disability’s] parent, guardian or other person or agency responsible for a disabled person's health or welfare, whether in the same home as the disabled person, a relative's home, a foster home or any other day or residential setting. M.G.L. c. 19C, §1.
- Care provider - a caretaker who is employed by, or contracts with, the department or an employer to provide services or supports to a person with an intellectual or developmental disability. M.G.L. c. 19C, §15.
- Disabled Person - a person between the ages of eighteen to fifty-nine, inclusive, who is a person with an intellectual disability as defined by section 1 of chapter 123B, or who is otherwise mentally or physically disabled and as a result of such mental or physical disability is wholly or partially dependent on others to meet his daily living needs. M.G.L. c. 19C, §1.
- Employer - an entity that provides services or treatment to persons with intellectual or developmental disabilities pursuant to: (i) a contract or agreement with the department; (ii) funding administered by the department; or (iii) a license issued pursuant to section 15 or 15A of chapter 19B. M.G.L. c. 19C, §15.
- Omission - a caretaker's failure, whether intentional or not, to take action to protect a persons with a disability, or to provide for the daily living needs of a person with a disability including, but not limited to, failing to prevent another person from committing abuse or abuse per se against a person with a disability. 118 CMR 2.02.
- Person with a Developmental Disability - A person with a severe, chronic disability that is attributable to a mental or physical impairment resulting from intellectual disability, autism, Smith-Magenis syndrome or Prader Willi syndrome; is manifested before the individual attains 22 years of age; is likely to continue indefinitely; results in substantial functional limitations in three or more areas of major life activity; and reflects the individual's need for a combination and sequence of special, interdisciplinary or generic services, supports or other assistance that is of a lifelong or extended duration and is individually planned and coordinated; as delineated and more specifically defined in the statute and regulations of the Department of Developmental Services at M.G.L. c. 123B and 115 CMR 2.01. 118 CMR 2.02.
- Person with an Intellectual Disability - A person who has an intellectual disability, characterized by significant limitations in both intellectual functioning and adaptive behavior beginning before 18 years of age, as expressed in conceptual, social and practical adaptive skills as delineated and more specifically defined in the statute and regulations of the Department of Developmental Services at M.G.L. c. 123B and 115 CMR 2.01: Definitions, and consistent with the most recent definition provided by the American Association on Intellectual and Developmental Disabilities. 118 CMR 2.02.
- Registrable abuse - an act or omission of a care provider that results in serious physical or emotional injury or constitutes abuse per se of a person with an intellectual or developmental disability; provided, however, that “registrable abuse” shall not include instances in which the commission, upon weighing the conduct of the care provider and its outcome, determines that the incident was isolated and unlikely to reoccur and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities. M.G.L. c. 19C, §15.
- Serious Emotional Injury – An injury to the intellectual functioning or emotional state of a Person with a Disability including but not limited to, coercion; harassment; the inappropriate isolation of a Person with a Disability from family, friends or regular activity; and verbal assault, including but not limited to, ridiculing, intimidating, yelling or swearing. A Serious Emotional Injury is evidenced by an observable or measurable reduction in the person's ability to function from the person's customary range of performance or customary behavior including, but not limited to, a state of anxiety, fear, depression or withdrawal; or the development of post-traumatic stress disorder, including but not limited to, symptoms resulting from being forced to engage in nonconsensual sexual activity.
Commentary. Finding a reduction of function is not solely dependent upon the duration of the reduction. The fact that the resulting reduction of function from the person's customary range of performance or customary behavior 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 in function lasts must be evaluated in conjunction with the severity of the reduction in function in determining whether a Serious Emotional Injury has occurred. 118 CMR 2.02.
Serious Physical Injury – Impairment of the physical condition of a Person with a Disability including, but not limited to:
(a) death;
(b) brain damage; permanent disfigurement; fracture of any bone; subdural hematoma; intramuscular injury;
(c) bedsores or similar condition;
(d) any significant: bleeding; bruising; burn; sunburn; abrasion; laceration; or puncture of the skin;
(e) any significant impairment of a: bodily system; function; limb; or organ, including human skin;
(f) harmful symptoms resulting from the use of medication or chemicals without informed consent or appropriate authorization; or
(g) malnutrition or dehydration.
Commentary. In determining whether there is Reasonable Cause to Believe that the injury is a Serious Physical Injury resulting from Abuse, the Commission shall consider the significance of the injury in the totality of the circumstances, including, but not limited to:
- the shape, size, number and/or pattern of the injury(ies), including indicators that the injury(ies) may have been sustained by the application of force from an identifiable object (i.e., belt, hand, blunt object);
- the location of the injury on the Person with a Disability;
- prior injuries of a similar nature;
- the level of dependence of the Person with a Disability, including but not limited to: his or her supervision requirements; ability to ambulate; the requirements of his or her care; and the extent to which the individual is able to participate in activities of daily living;
- the effect the injury had on the Person with a Disability's ability to function physically;
- the nature and history, if any, of prior self injurious behavior by the Person with a Disability; and
- the nature and extent of any medical treatment needed to address the injury. 118 CMR 2.02.
Commonly used acronyms in DPPC cases
- ALAB - Alleged Abuser
- ALV - Alleged Victim
- CCF - County Correctional Facility
- DALA - Division of Administrative Law Appeals
- DCF - Department of Children and Families
- DESE - Department of Elementary and Secondary Education
- DMH - Department of Mental Health
- DOC - Department of Correction
- DPH - Department of Public Health
- DPPC - Disabled Persons Protection Commission
- EEC - Department of Early Education and Care
- EOEA - Executive Office of Elder Affairs
- EOHHS - Executive Office of Health and Human Services
- I/DD - Intellectual or developmental disability
- MRC - Massachusetts Rehabilitation Commission
- RALAB - Registered Alleged Abuser