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6000 Legal Actions/Involvement

6100 General Procedures

APS Facility Investigations August 2012

In some cases, APS investigations of facilities become involved in grievance proceedings or litigation, such as criminal prosecution or civil suits. When the investigator becomes aware that a case will be involved in litigation or when the investigator is asked to testify in a grievance hearing or legal proceeding, the following general procedures must be followed:

1.   The investigator immediately notifies his or her supervisor.

2.   The supervisor or the investigator consults with the regional attorney, if legal representation or consultation is needed.

3.   The supervisor or the investigator, with supervisory approval, notifies the regional director or designee.

If the investigator is served with a subpoena, refer to OP-4105, DFPS Subpoena Policy and Procedures.

6110 Grievance Hearings

APS Facility Investigations December 2011

All DADS and DSHS employees who disagree with employer actions taken based on APS findings (for example, leave without pay, letters of reprimand, or termination) may file a grievance. A grievance that is not resolved by the employer agency is referred to the HHSC Appeals Division so that a grievance hearing may be held. At the grievance hearing, a presiding HHSC Appeals Division administrative law judge may uphold all or part of the findings of fact, or may dismiss all of the findings and reinstate the employee to original status. 

DADS and DSHS notify DFPS state office of outcomes of grievance hearings when related to a DFPS investigation. If a DFPS finding is overturned, a program specialist in state office creates an administrative review of investigation (ARI) stage in IMPACT to reflect the change. The final orders for all DFPS-related grievance hearings are then forwarded to the program administrator for review.

If the employee has been referred to the EMR, the grievance hearing will not take place until the EMR proceedings have been completed.

See:

8000 The Employee Misconduct Registry

HHS Human Resources Manual, Chapter 13

6120 Regional Attorneys

APS Facility Investigations December 2011

The primary legal resource for the investigator is the regional attorney. The regional attorney is a consultant on legal procedures, court-room protocol, and all matters involving interpretations and applications of state and federal laws, rules, and policies. The regional attorney also provides assistance in preparing legal documents and trains APS staff on relevant legal issues.

The investigator consults with the regional attorney in any matter requiring legal representation or having legal implications for DFPS. In proceedings that do not require legal representation or have legal implications for DFPS, the investigator consults with the regional attorney as needed.

6130 Entitlement and Redaction Specialists

APS Facility Investigations February 2013

Most records within the APS program are confidential and only specific people are entitled to obtain a copy. Even if release is authorized, parts of the record may still require redaction. Redaction is the concealing or removing of specific information.

The Records Management Group (RMG) supports DFPS by serving as the authorized entity, with a few exceptions, that releases case records, redacted or not. Any request for a copy of a case record must be referred to RMG.

Exceptions to this include the routine release of the Facility Abuse and Neglect Report to:

  •   state-operated facilities and contractors;

  •   community MHMR centers and contractors;

  •   local authorities and contractors;

  •   HCS providers and contractors; and

  •   law enforcement (on open cases to which you are assigned).

6140 Office of General Counsel

APS Facility Investigations December 2011

The Office of General Counsel (OGC) is responsible for ensuring compliance by DFPS with statutes, rules, and regulations. The OGC achieves this goal by providing legal advice and training to DFPS staff concerning state and federal statutes, federal regulations, state rules, program policy, contracts, and personnel issues.

The OGC is headed by the general counsel, who is responsible for the management and direction of the OGC. In addition to the general counsel, the OGC management team consists of four supervising attorneys who are responsible for the supervision and management of their respective sections. One or more regional attorneys) are located in each regional office.

The OGC attorneys in state office:

  •  provide legal advice to DFPS staff in state office on the development, revision, and implementation of DFPS policy and rules;

  •  review and draft legislation;

  •  work with external stakeholders to resolve legal issues affecting a DFPS program;

  •  provide legal advice to DFPS staff in state office on specific cases with unusual or difficult legal issues;

  •  enforce DFPS program policies by defending the actions by DFPS in administrative hearings;

  •  coordinate with the Office of the Attorney General in defense of litigation filed against DFPS;

  •  assist regional attorneys as needed on issues with statewide implication and on local issues that are unusual;

  •  assist staff if the regional attorney is unavailable; and

  •  provide legal training to APS staff.

See:

Office of General Counsel (organizational chart)

DFPS Legal Services

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