DCF Just Walked In: What to Expect and How to Handle it
Updated: Nov 12, 2019
An unannounced visit from an investigator with the Florida Department of Children and Families (“DCF”), Adult Protective Services (“APS”) division to your nursing facility may evoke an unwelcome level of stress and anxiety. Below is an overview of what you should expect when confronted with a DCF investigation at your nursing home and how you should handle it.
What Triggers a Nursing Home Visit from DCF?
Nursing home staff and other medical professionals are classified as “mandatory reporters”. Mandatory reports are obligated to report all instances of known or reasonably suspected abuse, neglect, or exploitation of a vulnerable adult. See Fla. Stat. § 415.1034(1). Further, nursing homes are obligated to inform their residents of the residents’ right to report abusive, neglectful, or exploitive practices. See Fla. Stat. § 415.1035. Beyond mandatory reporters and residents (including residents’ legal representatives), virtually anyone can levy a charge of nursing home abuse, neglect, or exploitation.
Within twenty-four (24) hours of receipt of any allegation of nursing home abuse, neglect, or exploitation, DCF must initiate an investigation. See Fla. Stat. § 415.104. More often than not, that’s when DCF shows up. See also Fla. Stat. § 415.104(3) (“For each report it receives, the department shall perform an onsite investigation…”).
First Things First
Upon commencement of an investigation, the DCF investigator is obligated to inform the vulnerable adult and the alleged perpetrator named in the report the following:
the name of the investigator;
the investigating department (e.g. DCF/APS);
the purpose of the investigation;
that, at the conclusion of the investigation, the victim, the victim’s guardian, the victim’s caregiver, the alleged perpetrator, and legal counsel for any of those individuals, have a right to a copy of the report at the conclusion of the investigation;
the name and telephone number of the investigator’s supervisor; and
that each person has the right to obtain his or her own attorney.
Request for Interviews
The DCF investigator will undoubtedly request to speak privately with one or more nursing home staff members. Given the nature of a DCF investigation, that is, to investigate abuse, neglect, and/or exploitation, these interview requests should not be taken lightly. Rather, any request for a private interview should be met with a demand that an attorney or, at minimum, a third party witness, be present. See Fla. Stat. § 415.104(2). When (and not “if”) someone sits in on the interview, that individual is required by DCF to execute a confidentiality agreement. But, unless you are skilled in reviewing confidentiality agreements, its best that an attorney review the agreement before it gets signed.
If an attorney (or third party) is not immediately available, the investigator may proceed with other aspects of the investigation, including interviews with other individuals. However, if all staff are informed of their rights (regardless of whether the DCF investigator informs them of such rights), there shouldn’t be any uninformed nursing home staff members subjected to private DCF interviews. In fact, the only interview that a DCF investigator may conduct privately is the interview of the vulnerable adult at that center of the investigation.
Photographs, Videos, and Medical Examinations
A DCF investigator, while investigating a report of abuse, neglect, or exploitation may take (or cause to be taken) photographs and videos of the vulnerable adult and his or her environment, so long as such photographs and videos are relevant to the investigation. See Fla. Stat. § 415.1045(1).
With the consent of the purported vulnerable adult (or his or her legal representative if the vulnerable adult lacks capacity), DCF may also cause the vulnerable adult to be referred to a licensed physician or any emergency department in a hospital or health care facility for medical examination, diagnosis, or treatment if any of the following circumstances exist:
the areas of trauma visible on the vulnerable adult indicate a need for medical examination;
the vulnerable adult verbally complains or otherwise exhibits signs or symptoms indicating a need for medical attention as a consequence of suspected abuse, neglect, or exploitation; or
the vulnerable adult is alleged to have been sexually abused.
Florida law recognizes numerous privileged communications, including, but not limited to, the journalist privilege, attorney-client privilege, psychotherapist-patient privilege, sexual assault counselor-victim privilege, domestic violence advocate-victim privilege, husband-wife privilege, clergy privilege, accountant-client privilege, and trade secret privilege. That said, when faced with a DCF investigation, the only privileged communications permitted to stand are those between an attorney and his or her client and those made to a member of the clergy. Therefore, but for those excepted categories, a communication otherwise protected may not be grounds for failure to report suspected abuse, neglect, or exploitation as a mandatory reporter or for refusing to cooperate in a judicial or administrative proceeding. See Fla. Stat. § 415.1045(3).
Medical, Social, and Financial Records Must be Relevant to the Allegations under Investigation
A nursing facility must provide a DCF investigator access to inspect and copy all medical, social, or financial records which are relevant to the allegations under investigation (unless the purported vulnerable adult who has capacity to consent prohibits such access). If the nursing facility refuses to permit such access, DCF may petition the court for an order requiring such access. The petition must allege specific facts sufficient to show that the record or document is relevant to the allegations under investigation and that the nursing facility has refused such access. See Fla. Stat. § 415.1045(4).
A Misdemeanor for Failing to Comply with the Investigator’s Demands?
Did the DCF investigator just threaten to have you arrested by the county sheriff for failing to comply with his or her demands? Can they do that?
As discussed, when a nursing home refuses to provide access to medical, social, or financial records, DCF must petition the court and make a showing of relevance before it can access those documents at issue. DCF cannot have you arrested simply because you or facility management dispute the relevance of the requested materials. However, a person who has custody of records and refuses to produce those documents on the basis of a privilege abrogated by Fla. Stat. § 415.1045(3) may be charged with a second-degree misdemeanor. In those circumstances, the question becomes: Who is the custodian of record refusing access based on an abrogated privilege?
In short, you must proceed with caution when a DCF investigator is threatening arrest. However, understanding the limitations on this threat will serve you well.
Interference with the Investigation
If, upon arrival of the DCF investigator, any person refuses to allow the investigator to begin an investigation, interferes with his or her ability to conduct the investigation, or refuses to give access to the vulnerable adult, the DCF investigator must contact the sheriff to assist in the investigation. See Fla. Stat. § 415.1052(1). Further, if any person prevents the provision of protective services to the vulnerable adult who has the capacity to consent to services, DCF must petition the court for an order enjoining the person from interfering with the provision of protective services. The petition must allege specific facts sufficient to show that the vulnerable adult is in need of protective services and that the person refuses to allow the provision of such services. If the court finds by clear and convincing evidence that the vulnerable adult is in need of protective services and that the person refuses to allow the provision of such services, the court may issue an order enjoining the person from interfering with the provision of protective services to the vulnerable adult. See Fla. Stat. § 415.1052(2).
That said, all criminal justice agencies have a duty and responsibility to cooperate with DCF so as to enable DCF to fulfill its obligations. Such duties include, but are not limited to, forced entry, emergency removal, emergency transportation, and the enforcement of court orders. See Fla. Stat. § 415.106.
How Long is the Investigation?
Within sixty (60) days after receiving the initial report which triggered the DCF investigation, DCF shall complete the investigation and notify the guardian of the vulnerable adult, the vulnerable adult, and the caregiver of any recommendations of services to be provided to ameliorate the causes or effects of abuse, neglect, or exploitation. Further, whenever a law enforcement agency and DCF have conducted independent investigations, the law enforcement agency shall, within five (5) working days after concluding its investigation, report its findings to the state attorney and to DCF. When appropriate, DCF may also transmit the report for any case of reported abuse, neglect, or exploitation of a vulnerable adult to the state attorney. And, to the extent the state attorney conducts an investigation referred by DCF, within 15 days after completion of the state attorney’s investigation, the state attorney must report his or her findings back to DCF and include a determination of whether or not prosecution is justified and appropriate in view of the circumstances. See Fla. Stat. § 415.104.
Among other things, Michael B. Kornhauser, Esq. represents skilled nursing facilities in DCF investigations, negligence cases and wrongful death cases. If you have any questions, feel free to contact him.