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5400 Due Process

APS IH / May 2014

See:

5410 Employee Misconduct Registry (EMR)

5420 Due Process for Non-EMR Cases

5430 Due Process for Client Protection

5440 Cases Involving School Employees

5410 Employee Misconduct Registry (EMR)

APS IH / May 2014

The Employee Misconduct Registry (EMR) is a public database maintained by DADS pursuant to Health & Safety Code, Chapter 253. The purpose of the Employee Misconduct Registry is to ensure that unlicensed personnel who commit acts of abuse, neglect, or exploitation against residents and consumers are denied employment in certain facilities.

A person whose name is listed on the EMR is permanently denied certain types of employment. Agencies whose employees are subject to the EMR may not employ a person listed on the EMR. Other employers may use the EMR as an employment screening tool

EMR Eligibility

The APS specialist uses a multi-step process when determining EMR eligibility. The APS specialist determines whether:

  •  an employee is EMR eligible;

  •  an EMR eligible employee has a validated finding of abuse, neglect, or financial exploitation; and

  •  the validated finding of abuse, neglect, or financial exploitation rises to the level of reportable conduct.

If the EMR process is declined by APS legal or state office, and APS staff intends to release the findings of the investigation outside of DFPS, the perpetrator must be offered non-EMR due process as outlined in 5420 Due Process for Non-EMR Cases.

5411 EMR Eligibility

5411.1 EMR Eligible Employee

APS IH / April 2015

In order to be placed on the EMR, the designated perpetrator must be an EMR eligible employee defined as a person who:

  •  works for an agency (such as HCSSA) as an employee, agent or contractor or an individual-employer participating in the consumer-directed services (CDS) option;

  •  provides personal care services, active treatment, or any other personal services to a client; and

  •  is not licensed by the state to perform the services the person performs.

Licensed professionals are not eligible for the EMR, but may be subject to other registries.

A certified nurse aid is not licensed and therefore is EMR eligible.

DFPS Rules, 40 TAC §711.1402

5411.2 Definition of Reportable Conduct

APS IH / May 2014

If an investigation results in a validated finding against an EMR eligible employee, the APS specialist determines whether the abuse, neglect, or financial exploitation rises to the level of reportable conduct. Reportable conduct is defined in Human Resources Code §48.401 as:

  •   abuse or neglect that causes, or may cause, death or harm to an individual receiving agency services;

  •   sexual abuse of an individual receiving agency services;

  •   financial exploitation of an individual receiving agency services in an amount of $25 or more; or

  •   emotional, verbal, or psychological abuse that causes harm to an individual receiving agency services.

DFPS Rules, 40 TAC §711.1408

5411.3 Definition of Harm

APS IH / May 2014

Abuse or Neglect

For the purposes of determining whether abuse or neglect rises to the level of reportable conduct, “harm” is defined as:

  •  a significant injury or risk of significant injury, including:

  •  a fracture, dislocation of any joint,

  •  internal injury,

  •  a contusion larger than 2 ½ inches,

  •  concussion,

  •  second- or third-degree burn, or

  •  any laceration requiring sutures;

  •  an adverse health effect that results from, or is at risk of resulting from, failure to receive medications in the amounts or at the times prescribed; or

  •  any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

Emotional, Verbal, or Psychological Abuse

For the purposes of determining whether emotional, verbal, or psychological abuse rises to the level of reportable conduct, “harm” is defined as substantial harm as evidenced by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

DFPS Rules, 40 TAC §711.1408

5412 Procedures for EMR Eligible Investigations

5412.1 Required Information for EMR Eligible Investigations

APS IH / April 2017

The APS specialist obtains the following information during an investigation when it is believed that an allegation of abuse, neglect, or financial exploitation will result in a Valid – Reportable Conduct finding:

  •   The perpetrator's application form, background checks, job description, applicable training records, and time sheets to show that the perpetrator was employed by the agency or Consumer Directed Services (CDS) client at the time the alleged abuse, neglect, or financial exploitation occurred.

  •   Records to support the valid finding, such as financial documents, pawn store receipts, or medical records. Of special importance is the need for expert medical testimony to support any allegations of abuse or neglect that did not cause actual harm, but placed the victim at risk of severe injury or death, and therefore rises to the level of reportable conduct.

  •   Up-to-date personal information about the alleged perpetrator, including:

  •   Social Security number;

  •   date of birth;

  •   residential address; and

  •   personal telephone number.

It is best practice for the APS specialist to verify the alleged perpetrator's personal information during the interview. In EMR eligible investigations, if the information is not included on the intake, and the alleged perpetrator is not willing to provide the information, the APS specialist obtains the information from the alleged perpetrator's employer. If the employer also refuses to provide the information, the APS specialist:

  •   documents the refusals by the alleged perpetrator and employer; and

  •   notifies the state office EMR coordinator.

If the perpetrator is involved in an investigation that does not rise to the level of reportable conduct, the APS specialist cannot request the perpetrator's Social Security number from the employer.

On the Investigation Conclusion page, the APS specialist:

  •   selects the appropriate Program Administrator; and

  •   enters the correct name and address of the designated perpetrator's employer's headquarters into the HCSSA Administrator section.

See:

2332.1 Privacy Rights Regarding the Social Security Number

2342.1 Procedure for Interviewing Alleged Perpetrators

2710 Allegation Disposition

5412.2 Entering the Valid-Reportable Conduct Finding in IMPACT

APS IH / April 2017

After determining an allegation is valid and rises to the level of reportable conduct, the APS specialist selects Valid – Reportable Conduct as the disposition for the allegation in IMPACT. The allegations that have a disposition of Valid – Reportable Conduct automatically generate referrals to the APS EMR database. The APS specialist ensures that only allegations that rise to the level of reportable conduct have the disposition of Valid – Reportable Conduct.

See 2710 Allegation Disposition.

5412.21 Documenting the EMR Investigation Conclusion

APS IH / April 2017

The APS specialist completes the conclusion narrative according to 2714 Documentation of Conclusion Justification.

The conclusion narrative for a case involving reportable conduct must include:

  •   a preponderance statement as to why the case was determined "Valid-Reportable Conduct";

  •   the definition of the allegation from the Texas Administrative Code;

  •   the finding identified as "Valid Reportable Conduct";

  •   the total monetary value of what the designated perpetrator gained from exploitation; and

  •   the date(s) the exploitation occurred, if applicable.

5412.3 Managerial Review of EMR Eligible Investigations

APS IH / April 2015

Subject Matter Expert Reviews

As soon as the APS specialist suspects that an allegation meets the definition of reportable conduct, he or she notifies the evidence-driven investigation (EDI) subject matter expert. The EDI SME:

  •  provides technical assistance throughout the investigation;

  •  assists the APS specialist in determining whether the allegation meets the definition of reportable conduct; and

  •  reminds the APS specialist of the additional records required for a reportable conduct case.

The SME consultation and approval must be documented in IMPACT.

Supervisor Review

The supervisor reviews all cases, including those in which the finding meets the definition of reportable conduct. To approve an EMR eligible investigation, the supervisor must agree with the APS specialist’s decision that:

  •  the allegation meets the definition of abuse, neglect, or financial exploitation; and

  •  the validated finding of abuse, neglect, or financial exploitation rises to the level of reportable conduct based on the legal definitions.

The APS specialist submits the case to the supervisor for progression or closure in IMPACT. If the supervisor approves of the investigation and findings, he or she adds the district director or designee as a secondary approver in IMPACT.

Regional Director Review

The district director or designee reviews the case in IMPACT within 14 days of receipt of the electronic notification to determine whether the finding meets the definition of reportable conduct.

Once the district director or designee approves the APS specialist’s finding of Valid-Reportable Conduct, IMPACT automatically sends an email notification the next business day to the APS specialist, supervisor, program administrator, and the APS EMR mailbox. If the district director or designee determines the allegation does not rise to the level of reportable conduct, the APS specialist ensures that the allegation disposition in IMPACT is changed to Valid instead of Valid – Reportable Conduct.

If there are questions about the reportable conduct findings or need for additional evidence, the district director or designee then communicates with the EMR coordinator.

5413 Internal APS EMR Database

APS IH / May 2014

APS maintains an internal APS-EMR database to track the legal process and gather statistics. The EMR coordinator and the EMR legal staff monitor this database until the EMR referral is complete and a final determination has been made.

5414 Responsibilities of the EMR Coordinator

APS IH / April 2015

Upon receipt of the IMPACT-generated notification of a new EMR referral, the EMR coordinator:

  •  reviews the case to ensure that:

  •  the designated perpetrator is an EMR eligible employee,

  •  the incident meets criteria for referral to the EMR,

  •  all evidence needed to support the validated finding and reportable conduct finding was obtained, and

  •  documentation is clear and supports the finding;

  •  monitors and tracks EMR case activity;

  •  sends the Notice of Findings to Designated Perpetrator letter to the designated perpetrator;

  •  sends the Notice to Employer letter to the agency that employed the perpetrator at the time of the incident;

  •  provides copies of those letters to the APS specialist, who files the copies in the paper case file; and

  •  updates the electronic EMR Database.

If the EMR coordinator has any questions or concerns about the specifics or quality of a case, he or she:

  •  contacts the APS attorney in state office for any specific legal questions;

  •  contacts the lead subject matter expert in state office for investigations and risk for an assessment of issues in the preceding list;

  •  consults with state office program specialists as needed; and

  •  provides reports to the director of field operations regarding concerns or recommendations for EMR investigations.

If the EMR coordinator determines the investigation needs additional evidence collection or clearer documentation to support the finding, the EMR coordinator sends an email requesting that additional action be taken on the investigation to the:

  •  district director;

  •  program administrator;

  •  EDI subject matter expert;

  •  supervisor; and

  •  APS specialist.

The EMR coordinator verifies with the regional office that the additional evidence and documentation is complete before proceeding with written notification to the designated perpetrator and employer, and before referring the investigation to DFPS Legal.

If the EMR coordinator makes the decision to stop the EMR referral after consultation with DFPS Legal, the EMR coordinator informs the regional office that APS will not be pursing the EMR case.

Once the EMR due process is completed, the EMR coordinator sends a notification letter to the designated perpetrator’s employer informing them of the results, and ensures that the correct allegation disposition is entered into IMPACT using the Administrative Review of Investigation (ARI) stage. The ARI stage reflects the outcome of the EMR due process.

5415 Notifications and Request for EMR Hearing

5415.1 Notice of Findings to Subsequent Employers Before the EMR Hearing

APS IH / May 2014

There are times when a designated perpetrator, who is awaiting an EMR hearing, secures employment with another employer that provides the designated perpetrator access to children, persons over 65, or adults with disabilities. In order to release the findings to the designated perpetrator’s new employer, the APS specialist follows the procedures outlined in 5420 Due Process for Non-EMR Cases.

Notice of Findings After Due Process

If the EMR hearing is conducted and the findings upheld before the non-EMR due process is completed, the APS specialist sends the designated perpetrator notification that the non-EMR due process has been discontinued.

If the findings are upheld during non-EMR due process, they may be released to the new employer. Regardless of whether the findings are upheld or overturned during non-EMR due process, the EMR process continues until completed.

See also 5416.6 Providing Notice if a Finding Is Modified or Reversed.

5415.2 Notice of Hearing to the Employee (Designated Perpetrator)

APS IH / May 2014

The employee (designated perpetrator) receives a Notice of Findings letter from the EMR coordinator. This notice includes a summary of the EMR investigation with a disposition of Valid - Reportable Conduct, the employee’s right to request an EMR hearing, the process regarding the EMR hearing, and the consequence of the EMR.

DFPS Rules, 40 TAC §711.1413

5415.3 Request for Hearing by the Employee

APS IH / May 2014

To request a hearing, the employee submits the Request for Hearing form as described in the notice letter the employee receives.

DFPS Rules, 40 TAC §711.1415

Deadline for Filing a Request for Hearing

The employee must file the Request for Hearing no later than 30 calendar days from the date the employee receives the Notice of Findings.

DFPS Rules, 40 TAC §711.1417

Receipt by Employee

The state office of Adult Protective Services presumes the designated perpetrator received the Notice of Findings on the date of delivery as indicated on the certified mail return receipt. If the certified mailing is returned unclaimed, but the regular mailing is not returned, the Notice of Findings is presumed received on the third business day following the date the notice was mailed to the employee’s last known address.

DFPS Rules, 40 TAC §711.1417(b)

Filing by Mail

If the Request for Hearing is submitted by mail, the envelope must be postmarked no later than 30 calendar days after the date the employee received the Notice of Findings.

DFPS Rules, 40 TAC §711.1417(c)

Filing by Fax or by Hand Delivery

If the Request for Hearing is submitted by fax or hand-delivered, the request must be received by APS state office by 5:00 p.m., no later than 30 calendar days from the date the employee received the Notice of Findings.

DFPS Rules, 40 TAC §711.1417(c)

5415.31 Late Request

APS IH / May 2014

If the employee files the Request for EMR Hearing after the deadline, APS notifies the employee that the request was not filed by the deadline, no hearing will be granted, and that the employee’s name will be submitted for inclusion in the Employee Misconduct Registry.

DFPS Rules, 40 TAC §711.1417(d)

Employee Disputes Missing the Deadline

If the employee disputes the fact that the Request for EMR Hearing was filed late, the employee may request a hearing that is limited solely to the issue of the timeliness of the Request for EMR Hearing. If, as a result of that hearing, the employee can prove that the original Request for EMR Hearing was filed timely, a separate hearing is scheduled as soon as possible on the issue of whether the employee committed reportable conduct.

DFPS Rules, 40 TAC §711.1417(e)

5416 EMR Hearing Process

APS IH / May 2014

Immediately upon receiving a Request for EMR Hearing, APS forwards the request to the administrative hearings docket clerk for assignment to an administrative law judge (ALJ). The ALJ schedules a hearing as soon as possible and sends a Notice of Hearing to the employee and to the EMR attorney.

The hearing is usually held in the same DFPS region where the alleged reportable conduct took place.

DFPS Rules, 40 TAC §711.1421

5416.1 Rescheduling a Hearing

APS IH / May 2014

Either the employee or APS may request that the ALJ reschedule the hearing for good cause. Except in cases of emergency, this request must be made no later than three working days before the hearing date.

DFPS Rules, 40 TAC §711.1423

5416.2 Withdrawing a Request for a Hearing

APS IH / May 2014

Withdraw by Employee

The employee may withdraw a Request for Hearing any time before the hearing is conducted. An employee who withdraws a Request for EMR Hearing will be deemed to have accepted the finding of reportable conduct. The APS EMR attorney assigned to the case completes a motion to dismiss and submits the employee’s name for inclusion in the Employee Misconduct Registry.

DFPS Rules, 40 TAC §711.1425

Withdraw by APS

APS may decide to withdraw from the hearing any time before the hearing is conducted. If APS withdraws from the hearing, the EMR attorney notifies the program administrator and EMR coordinator. The EMR coordinator adds an ARI stage to document the change in findings, and sends a notice of review of reportable conduct letter to the employee and the employer.

5416.3 Failure to Appear for a Hearing

APS IH / May 2014

If either APS or the employee fails to appear at the hearing without good cause, the ALJ may issue a default judgment against the party that failed to appear. If a default judgment against an employee becomes the final Hearing Order, the APS attorney notifies the EMR coordinator. The EMR coordinator forwards the employee’s name for inclusion in the EMR.

DFPS Rules, 40 TAC §711.1426

5416.4 Decision of Administrative Law Judge (ALJ)

APS IH / May 2014

The ALJ prepares a Hearing Order which is mailed to the employee. The Hearing Order contains the following:

  •  Findings of fact and conclusions of law as to whether:

  •  the employee committed abuse, neglect, or financial exploitation of a client; and

  •  the abuse, neglect, or financial exploitation committed meets the definition of  reportable conduct; and

  •  If reportable conduct is found to have occurred:

  •  a statement of the right of the employee to seek judicial review of the order; and

  •  a statement that the finding of reportable conduct will be forwarded for inclusion in the EMR.

DFPS Rules, 40 TAC §711.1429(a)

5416.5 Request for Judicial Review by the Employee

APS IH / May 2014

An employee may request judicial review of an ALJ’s finding of reportable conduct. To request judicial review, the employee files a petition for judicial review in a Travis County district court no later than 30 calendar days after the Hearing Order is received by the employee.

DFPS Rules, 40 TAC §711.1431

5416.6 Providing Notice if a Finding Is Modified or Reversed

APS IH / May 2014

If the finding of reportable conduct is modified or reversed as a result of judicial review, APS provides notice of the new finding to all entities that DFPS notified of the original finding.

DFPS Rules, 40 TAC §711.1432

5416.7 Information Forwarded to DADS for Recording in the Employee Misconduct Registry

APS IH / May 2014

If an employee accepts a finding of reportable conduct or the finding is sustained following all appeal rights, APS forwards to DADS the following information to be recorded in the registry:

  •  The employee’s name, address, and Social Security number, if available

  •  The name and address of the Home and Community Support Service Agency (HCSSA) or Consumer Directed Services (CDS) entity where the employee worked when the reportable conduct occurred

  •  A summary of the reportable conduct and the approximate date on which it occurred

DFPS Rules, 40 TAC §711.1432

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