630.167. Investigation of report, when made, by whom--abuse prevention by removal, procedure--reports confidential, privileged, exceptions--immunity of reporter, notification--retaliation prohibited-- - Missouri Statutes

Investigation of report, when made, by whom--abuse prevention byremoval, procedure--reports confidential, privileged,exceptions--immunity of reporter, notification--retaliationprohibited--administrative discharge of employee, appealprocedure.

630.167. 1. Upon receipt of a report, the department or the departmentof health and senior services, if such facility or program is licensedpursuant to chapter 197, RSMo, shall initiate an investigation withintwenty-four hours.

2. If the investigation indicates possible abuse or neglect of apatient, resident or client, the investigator shall refer the complainttogether with the investigator's report to the department director forappropriate action. If, during the investigation or at its completion, thedepartment has reasonable cause to believe that immediate removal from afacility not operated or funded by the department is necessary to protect theresidents from abuse or neglect, the department or the local prosecutingattorney may, or the attorney general upon request of the department shall,file a petition for temporary care and protection of the residents in acircuit court of competent jurisdiction. The circuit court in which thepetition is filed shall have equitable jurisdiction to issue an ex parte ordergranting the department authority for the temporary care and protection of theresident for a period not to exceed thirty days.

3. (1) Except as otherwise provided in this section, reports referredto in section 630.165 and the investigative reports referred to in thissection shall be confidential, shall not be deemed a public record, and shallnot be subject to the provisions of section 109.180, RSMo, or chapter 610,RSMo. Investigative reports pertaining to abuse and neglect shall remainconfidential until a final report is complete, subject to the conditionscontained in this section. Final reports of substantiated abuse or neglectissued on or after August 28, 2007, are open and shall be available forrelease in accordance with chapter 610, RSMo. The names and all otheridentifying information in such final substantiated reports, includingdiagnosis and treatment information about the patient, resident, or client whois the subject of such report, shall be confidential and may only be releasedto the patient, resident, or client who has not been adjudged incapacitatedunder chapter 475, RSMo, the custodial parent or guardian parent, or otherguardian of the patient, resident or client. The names and other descriptiveinformation of the complainant, witnesses, or other persons for whom findingsare not made against in the final substantiated report shall be confidentialand not deemed a public record. Final reports of unsubstantiated allegationsof abuse and neglect shall remain closed records and shall only be released tothe parents or other guardian of the patient, resident, or client who is thesubject of such report, patient, resident, or client and the departmentvendor, provider, agent, or facility where the patient, resident, or clientwas receiving department services at the time of the unsubstantiatedallegations of abuse and neglect, but the names and any other descriptiveinformation of the complainant or any other person mentioned in the reportsshall not be disclosed unless such complainant or person specifically consentsto such disclosure. Requests for final reports of substantiated orunsubstantiated abuse or neglect from a patient, resident or client who hasnot been adjudged incapacitated under chapter 475, RSMo, may be denied orwithheld if the director of the department or his or her designee determinesthat such release would jeopardize the person's therapeutic care, treatment,habilitation, or rehabilitation, or the safety of others and provided that thereasons for such denial or withholding are submitted in writing to thepatient, resident or client who has not been adjudged incapacitated underchapter 475, RSMo. All reports referred to in this section shall beadmissible in any judicial proceedings or hearing in accordance with section36.390, RSMo, or any administrative hearing before the director of thedepartment of mental health, or the director's designee. All such reports maybe disclosed by the department of mental health to law enforcement officersand public health officers, but only to the extent necessary to carry out theresponsibilities of their offices, and to the department of social services,and the department of health and senior services, and to boards appointedpursuant to sections 205.968 to 205.990, RSMo, that are providing services tothe patient, resident or client as necessary to report or have investigatedabuse, neglect, or rights violations of patients, residents or clientsprovided that all such law enforcement officers, public health officers,department of social services' officers, department of health and seniorservices' officers, and boards shall be obligated to keep such informationconfidential.

(2) Except as otherwise provided in this section, the proceedings,findings, deliberations, reports and minutes of committees of health careprofessionals as defined in section 537.035, RSMo, or mental healthprofessionals as defined in section 632.005, RSMo, who have the responsibilityto evaluate, maintain, or monitor the quality and utilization of mental healthservices are privileged and shall not be subject to the discovery, subpoena orother means of legal compulsion for their release to any person or entity orbe admissible into evidence into any judicial or administrative action forfailure to provide adequate or appropriate care. Such committees may exist,either within department facilities or its agents, contractors, or vendors, asapplicable. Except as otherwise provided in this section, no person who wasin attendance at any investigation or committee proceeding shall be permittedor required to disclose any information acquired in connection with or in thecourse of such proceeding or to disclose any opinion, recommendation orevaluation of the committee or board or any member thereof; provided, however,that information otherwise discoverable or admissible from original sources isnot to be construed as immune from discovery or use in any proceeding merelybecause it was presented during proceedings before any committee or in thecourse of any investigation, nor is any member, employee or agent of suchcommittee or other person appearing before it to be prevented from testifyingas to matters within their personal knowledge and in accordance with the otherprovisions of this section, but such witness cannot be questioned about thetestimony or other proceedings before any investigation or before anycommittee.

(3) Nothing in this section shall limit authority otherwise provided bylaw of a health care licensing board of the state of Missouri to obtaininformation by subpoena or other authorized process from investigationcommittees or to require disclosure of otherwise confidential informationrelating to matters and investigations within the jurisdiction of such healthcare licensing boards; provided, however, that such information, once obtainedby such board and associated persons, shall be governed in accordance with theprovisions of this subsection.

(4) Nothing in this section shall limit authority otherwise provided bylaw in subdivisions (5) and (6) of subsection 2 of section 630.140 concerningaccess to records by the entity or agency authorized to implement a system toprotect and advocate the rights of persons with developmental disabilitiesunder the provisions of 42 U.S.C. Sections 15042 to 15044 and the entity oragency authorized to implement a system to protect and advocate the rights ofpersons with mental illness under the provisions of 42 U.S.C. 10801. Inaddition, nothing in this section shall serve to negate assurances that havebeen given by the governor of Missouri to the U.S. Administration onDevelopmental Disabilities, Office of Human Development Services, Departmentof Health and Human Services concerning access to records by the agencydesignated as the protection and advocacy system for the state of Missouri.However, such information, once obtained by such entity or agency, shall begoverned in accordance with the provisions of this subsection.

4. Anyone who makes a report pursuant to this section or who testifiesin any administrative or judicial proceeding arising from the report shall beimmune from any civil liability for making such a report or for testifyingunless such person acted in bad faith or with malicious purpose.

5. Within five working days after a report required to be made pursuantto this section is received, the person making the report shall be notified inwriting of its receipt and of the initiation of the investigation.

6. No person who directs or exercises any authority in a residentialfacility, day program or specialized service shall evict, harass, dismiss orretaliate against a patient, resident or client or employee because he or sheor any member of his or her family has made a report of any violation orsuspected violation of laws, ordinances or regulations applying to thefacility which he or she has reasonable cause to believe has been committed orhas occurred.

7. Any person who is discharged as a result of an administrativesubstantiation of allegations contained in a report of abuse or neglect may,after exhausting administrative remedies as provided in chapter 36, RSMo,appeal such decision to the circuit court of the county in which such personresides within ninety days of such final administrative decision. The courtmay accept an appeal up to twenty-four months after the party filing theappeal received notice of the department's determination, upon a showing that:

(1) Good cause exists for the untimely commencement of the request forthe review;

(2) If the opportunity to appeal is not granted it will adversely affectthe party's opportunity for employment; and

(3) There is no other adequate remedy at law.

(L. 1980 H.B. 1724 § 630.165 subsecs. 5 to 10, A.L. 1985 S.B. 266, A.L. 1990 H.B. 1370, et al., A.L. 1993 S.B. 388, A.L. 1996 H.B. 1081 merged with S.B. 869 merged with S.B. 884 & 841, A.L. 1998 S.B. 470, A.L. 2003 S.B. 556 & 311, A.L. 2007 S.B. 3, A.L. 2008 S.B. 1081)