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5420 Due Process for Non-EMR (Employee Misconduct Registry) Cases

APS April 2019

Release of Findings

Valid

DFPS may release investigation findings of Valid outside DFPS as noted in Title 40 of the Texas Administrative Code, §705.4101.

Due process for non-EMR cases applies only when APS wants to release a finding of Valid outside DFPS, usually to a designated perpetrator’s employer. This applies when the designated perpetrator is not one of the following:

  •   The designated perpetrator in a school investigation.

  •   A person who is eligible to be included in the EMR.

For policy on the release of findings in cases involving school employees, see 5444 Administrative Review in School Personnel Cases.

For policy on cases involving the EMR, see 5410 Employee Misconduct Registry (EMR).

If APS is not going to release the findings of Valid to an outside entity, APS does not offer due process. See 5300 Desk Review for Designated Perpetrators.

Unable to Determine or Invalid

APS does not release the findings of Unable to Determine or Invalid to anyone outside of DFPS, except as outlined in the following policies:

5160 Release of Information to State Supported Living Centers (SSLC)

5426.21 Release of Findings on Investigations of Home and Community Support Services Agency (HCSSA) Staff and Foster Home Providers and Employees

5426.3 Release of Findings to Professional Licensing Boards and Other Agencies

Designated Perpetrators in Non-EMR Cases

Examples of designated perpetrators include, but are not limited to, the following:

  •   Licensed professionals, such as nurses, social workers, attorneys, and psychologists.

  •   Employees of home and community support services agencies (HCSSAs) who are not subject to inclusion in the EMR because their actions do not rise to the level of reportable conduct.

  •   Health and Human Services Commission (HHSC) guardianship specialists in their role as guardian for a person who is a ward of the HHSC Office of Guardianship Services (OGS). See 5100 Confidentiality, Disclosure, and Release of Case Information.

  •   People to whom both of the following apply:

  •   The person has either of the following characteristics:

  •   The person is privately hired and paid by the alleged victim, or on behalf of the alleged victim, to provide personal care services.

  •   The person is a designated perpetrator against a family member of the victim.

  •   The designated perpetrator has other employment (such as at an HCSSA, a state-supported living center, or a state hospital) that gives him or her access to children or other vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation.

Due Process

To make sure that the designated perpetrator receives due process, the APS specialist follows a two-stage process that includes the following:

  •   An administrative review

  •   A release hearing

The APS specialist begins the process by doing as follows:

  •   Notifying the designated perpetrator that DFPS intends to release the findings.

  •   Offering an administrative review.

If the designated perpetrator is an employee of HHSC OGS who is acting as an agent for HHSC OGS, a reviewer from the DFPS region that conducted the investigation conducts the administrative review.

DFPS may complete an emergency release of findings before offering due process to the designated perpetrator if DFPS determines that delaying the release will put people age 65 or older or adults with disabilities in a state of serious harm or at risk of serious harm.

See:

5424 Administrative Review in Non-EMR Cases

5425 Release Hearings for Non-EMR Cases

5421 Emergency Release of Findings in Non-EMR Cases

APS IH April 2018

An emergency is defined as abuse, neglect, or financial exploitation that without immediate intervention would result in an adult with a disability or age 65 or older being in a state of or at risk of serious harm.

DFPS Rules, 40 TAC §§705.4101(1)

APS may release findings outside DFPS before completing the release hearing if DFPS determines that a delay in release would create an emergency because the designated perpetrator will have continuing access to vulnerable adults or children. The APS specialist consults with the regional attorney to determine whether an emergency release is allowed or required.

If it is determined an emergency release is necessary, APS notifies the employer or other person allowing the designated perpetrator access to vulnerable adults or children using Form 2241 Emergency Release of Findings. The form outlines:

  •   DFPS’s belief that an emergency exists and that immediate intervention is needed to prevent serious harm to an adult who is age 65 or older or who has a disability;

  •   the designated perpetrator’s right to appeal an emergency release; and

  •   notification to the entity if, as a result of an appeal, APS alters or reverses the decision.

If a delay in notifying the employer would create an emergency, APS does not have to send written notification to the designated perpetrator before the release. However, the designated perpetrator is entitled to receive written notification as soon as possible and has the right to appeal the findings.

See also:

5426.2 Release of Finding in Non-EMR Cases

5422 Notice of Emergency Release of Findings to the Designated Perpetrator

Emergency Release of Findings Involving Home and Community Support Services Agencies (HCSSAs) and Foster Homes

If it is determined an emergency exists in investigations involving HCSSAs, foster homes, or their employees, APS releases findings before completing the administrative review or release hearing process.

The APS specialist sends Form 2241 Emergency Release of Findings to:

  •   HHSC Long Term Care Regulatory Services
PO Box 149030
Mail Code E-342
Austin, Texas 78714-9030

  •   The HCSSA or foster home provider, as appropriate.

See:

5424.2 Conducting an Administrative Review in Non-EMR Cases

5426.2 Release of Findings in Non-EMR Cases

5422 Notice of Emergency Release of Findings to the Designated Perpetrator

APS IH April 2018

The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the emergency release of findings made to the designated perpetrator’s employer or other entity. This notification includes the:

  •   Emergency Release Notification; and

  •   Request for an Administrative Review.

See:

5423 Sending Notice of Intent to Release in Non-EMR Cases

5426.2 Release of Findings in Non-EMR Cases

5423 Sending Notice of Intent to Release in Non-EMR Cases

APS IH April 2018

Upon completion of the investigation, the APS specialist must give written notification of the findings to each person designated as a perpetrator when:

  •   allegations of abuse, neglect, or financial exploitation by the designated perpetrator are validated;

  •   the findings will be released outside DFPS to an entity or employer which allows the designated perpetrator access to adults with disabilities, people age 65 or older, or children; and

  •   the designated perpetrator, as a result of the release, may be denied a right or privilege, such as employment .

DFPS Rules, 40 TAC §705.4105(a)

The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the intent to release the findings unless DFPS determines that a more immediate form of written notification is required. This notification includes the:

  •   Notification of Intent to Release; and

  •   Request for an Administrative Review.

If the designated perpetrator’s mailing address is not known, the APS specialist may mail the notice to him or her in care of the employer.

See also:

5420 Due Process for Non-EMR (Employee Misconduct Registry) Cases

5421 Emergency Release of Findings in Non-EMR Cases

5422 Notice of Emergency Release of Findings to the Designated Perpetrator

5424 Administrative Review in Non-EMR Cases

APS IH April 2018

An administrative review is an informal review conducted by an APS district director or designee. The administrative review is required before offering a release hearing to the designated perpetrator.

5424.1 Requesting an Administrative Review in Non-EMR Cases

APS IH April 2018

The request for an administrative review must be postmarked within 20 calendar days after DFPS mailed the official notice or the right to the administrative review is forfeited.

Regional staff may use discretion and wait 30 calendar days after DFPS mails the official notice to receive a request, but must wait at least 23 calendar days. This ensures that adequate time for receipt and proper routing of the letter. The envelope received from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

If APS receives the request for an administrative review in a timely manner, the reviewer sends the perpetrator an Appointment Letter for Administrative Review outlining the date and time of the review.

If the perpetrator does not request an administrative review within 20 calendar days after DFPS mails the official notice, the APS specialist may release the information unless it was already released as an emergency release.

If an emergency release has been made and no request is received for an administrative review, the APS specialist sends the perpetrator the Final Letter for Due Process confirming the emergency release.

See:

5426.2 Release of Findings in Non-EMR Cases

5426.3 Release of Findings to Professional Licensing Boards and Other Agencies

5424.11 Request for Records for an Administrative Review in Non-EMR Cases

APS IH April 2018

If the request for an administrative review indicates the designated perpetrator wants a copy of the case record, the district director or designee:

  •   requests a redacted copy of the case via OneCase by selecting administrative review as the request type;

  •   lists himself or herself as the caseworker in the contact information field; and

  •   requests the record be provided within 45 calendar days from the date the request is entered into OneCase.

The Entitlement Redaction Office (ERO) sends the reviewer a link to print the redacted case once it is available.

The reviewer mails the designated perpetrator a copy of the redacted case record.

5424.2 Conducting an Administrative Review in Non-EMR Cases

APS IH April 2018

The reviewer must not have directly supervised the APS specialist or have been involved in the investigation. The review is conducted within 30 calendar days from the date the request by the perpetrator is received unless court proceedings related to the abuse, neglect, or financial exploitation are pending at the time or are started after the review is requested.

If court proceedings are involved, APS postpones the review until the court proceedings are completed. DFPS makes a good faith effort to conduct the review within the 30 calendar day time frame. However, failure to do so does not waive the hearing or reverse the finding.

If the designated perpetrator is an employee of HHSC who is acting as an agent for the HHSC Office of Guardianship Services program, the administrative review is conducted by a reviewer from the DFPS region that conducted the investigation.

See also 5424.1 Requesting an Administrative Review in Non-EMR Cases.

At the administrative review, the designated perpetrator may:

  •   appear in person and be accompanied by a representative;

  •   submit written material that is relevant to the case; and

  •   have a certified interpreter provided by DFPS if the perpetrator does not speak English or is deaf, or may provide his or her own interpreter.

DFPS Rules, 40 TAC §705.4107(a)

The designated perpetrator is responsible for any costs he or she may incur for the review, except for interpreter services provided by DFPS.

DFPS Rules, 40 TAC §705.4107(b)(1)

Formal rules of evidence are not applicable to the administrative review. The designated perpetrator may make statements, provide information, or ask questions. The designated perpetrator may bring statements from witnesses. No live testimony from witnesses other than from the designated perpetrator is accepted. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.

Within 45 calendar days of the administrative review, the reviewer:

  •   makes a decision to sustain, alter, or reverse the original APS findings based on the same requirements and criteria that APS specialists and supervisors use to conduct investigations and reach conclusions;

  •   creates an Administrative Review of Investigations (ARI) stage by selecting the closed Investigation stage of the case and the name of the designated perpetrator being reviewed;

  •   documents the review and decision on the Administrative Appeal and Review page found under the Record Admin Review/Appeal tab in the ARI stage; and

  •   updates the investigation closure reason in IMPACT, if appropriate.

For more detailed steps on creating and completing an ARI stage in IMPACT, see Creating and Completing an ARI Stage in an In-Home Investigation.

The reviewer follows the chart below in completing the administrative review process.

If administrative review findings were:

Was an emergency release made?

Then the APS district director or designee sends:

Sustained

No

The Administrative Review Findings form and Request for a Release Hearing form to the designated perpetrator

Sustained

Yes

The Administrative Review Findings form and Request for a Release Hearing form to the designated perpetrator

Altered or reversed

No

The Administrative Review Findings form to the designated perpetrator

Altered or reversed

Yes

  •   The  Administrative Review Findings form to the designated perpetrator

  •   The Final Letter for Due Process to all others notified during emergency release (employer, licensing board, and so on)

5425 Release Hearings for Non-EMR Cases

APS IH DRAFT April 2018

If the finding at the administrative review is upheld, the APS specialist offers the designated perpetrator a release hearing.

A release hearing is a formal due process hearing conducted by an administrative law judge. If the judge upholds the finding on the allegation of abuse, neglect, or financial exploitation, then APS releases the finding outside of DFPS. See 5425.2 Conducting a Release Hearing and Subsequent Activities in Non-EMR Cases.

5425.1 Requesting a Release Hearing in Non-EMR Cases

APS IH April 2018

If a designated perpetrator does not agree with the administrative review findings, he or she requests a release hearing by mailing the Request for a Release Hearing form back to APS.

The designated perpetrator must send the request to the following address:

Associate Commissioner of Adult Protective Services
MC E-561
Texas Department of Family and Protective Services
P.O. Box 149030
Austin, Texas 78714-9030

The request must be postmarked within 20 calendar days after DFPS mailed the official notice or the designated perpetrator forfeits his or her right to a release hearing. Regional staff may use discretion and wait 30 calendar days after DFPS mailed the official notice to receive a request, but must wait at least 23 calendar days. This ensures that adequate time for receipt and proper routing of the letter. The envelope received from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

If the request is timely, the reviewer sends the Request for Release Hearing form (if returned by the designated perpetrator) and a copy of review findings to the Office of General Counsel, Director of Administrative Hearings at MC Y-956, and courtesy copies the program administrator, supervisor, and specialist. If the designated perpetrator sends the request directly to the regional office, the request is forwarded to the Office of General Counsel as outlined above.

If the designated perpetrator does not request a hearing within 20 calendar days after DFPS mails the official notice, the district director or designee releases the findings as outlined in 5426.2 Release of Findings in Non-EMR Cases.

If the designated perpetrator does not request a hearing for an emergency release, the reviewer sends all others notified during the emergency release (employer, licensing board, etc.) the Final Letter for Due Process.

See IMPACT FYI resources:

Administrative Review

Create an Administrative Review Stage

Record Administrative Review and Appeal (APS In-Home and APS Facility Investigations)

5425.2 Conducting a Release Hearing and Subsequent Activities in Non-EMR Cases

APS IH April 2018

The State Office of Administrative Hearings (SOAH) conducts the release hearing. The director of administrative hearings in the Office of General Counsel appoints an attorney to represent DFPS and seek a hearing date from SOAH. The attorney has authority over the manner and substance of the presentation of the DFPS case.

The hearing is held in the region responsible for the investigation, unless the administrative law judge determines that good cause exists for moving the hearing.

At any time before the conclusion of the hearing, the case may be informally disposed of by withdrawal, default, settlement, or other actions by DFPS staff.

If the judge sustains the APS findings, the district director for APS, in coordination with the regional attorney, approves the manner and content of the release of data.

If the judge does not find that abuse, neglect, or financial exploitation is shown by a preponderance of the evidence or finds that the designated perpetrator is incorrectly designated, the designated perpetrator’s designation must be changed to conform to the judge’s determination.

The district director or designee documents the outcome in the Administrative Review of Investigation (ARI) stage according to administrative review procedures.

See IMPACT FYI resources:

Administrative Review

Create an Administrative Review Stage

Record Administrative Review and Appeal (APS In-Home and APS Facility Investigations)

See also 5426.2 Release of Findings in Non-EMR Cases.

5426 Notification and Release of Findings After Non-EMR Due Process

APS IH April 2018

Upon completion of the administrative review and release hearing, the designated perpetrator and any employer notified due to an emergency release are notified of the final outcome.

5426.1 Notification of Decision in Non-EMR Cases

APS IH April 2018

The administrative law judge sends a copy of the decision to the designated perpetrator or his representative and to the attorney representing APS, who sends the finding to the district director or designee. The district director or designee:

  •   documents the final decision in the Administrative Review of Investigation (ARI) stage;

  •   updates the designated perpetrator’s status in the IMPACT case management system, if appropriate;

  •   in conjunction with the regional attorney, determines and approves the manner, timing, and content of the release of data; and

  •   files it in the paper case file.

5426.2 Release of Findings in Non-EMR Cases

APS IH April 2018

Once due process is completed and the finding is upheld, the finding may be released to:

  •   the designated perpetrator’s employer; or

  •   anyone else that allows the designated perpetrator access to children or adults who are age 65 or older or who have disabilities.

Before disclosing case information or investigation findings to other persons or organizations, the APS specialist refers to 5100 Confidentiality, Disclosure, and Release of Case Information.

Content of Release of Findings

The APS specialist must make timely notification by sending the Release of Findings to the designated perpetrator’s employer or other entities.

This form includes the:

  •   name of the designated perpetrator;

  •   nature and seriousness of the valid allegations; and

  •   names of the victims of maltreatment, if appropriate.

If the release is the final release following a prior emergency release of the findings, the APS specialist sends the Final Letter of Due Process, which outlines:

  •   due process has been offered or provided; and

  •   whether the findings have been overturned.

See:

2270 Referring Cases to Law Enforcement

5424 Administrative Review in Non-EMR Cases

5424.2 Conducting an Administrative Review in Non-EMR Cases

5426.2 Release of Findings in Non-EMR Cases

5426.3 Release of Findings to Professional Licensing Boards and Other Agencies

5426.21 Release of Findings on Investigations of HCSSA Staff and Foster Home Providers and Employees

APS IH April 2018

If the outcome of the non-EMR due process is to release the investigation findings, the APS specialist releases the findings to both the Home and Community Support Services Agency (HCSSA) or unlicensed adult foster home provider and to HHSC.

The specialist sends the Release of Findings to:

  •   either:

  •   HHSC Report-DFPS at DfpsReports@hhsc.state.tx.us, or

  •   HHSC Manager of Compliance and Oversight

P.O. Box 149030

Austin, TX 78714

Mail Code E-306; and

  •   the director or administrator of the HCSSA or foster home provider, as appropriate.

The APS specialist documents notification in IMPACT. The APS specialist files a copy of the form in the paper case file.

If the release is the final release following a prior emergency release of the findings, the APS specialist sends the Final Letter for Due Process that outlines whether:

  •   due process has been offered or provided; and

  •   the findings have been upheld or overturned.

Upon completion of an investigation in which the dispositions of abuse, neglect, or financial exploitation allegations are Invalid or Unable to Determine, the APS specialist may inform an employer or licensing agency of the findings without a release hearing. The notification may be verbal or written.

See:

5420 Due Process for Non-EMR (Employee Misconduct Registry) Cases

5424.2 Conducting an Administrative Review in Non-EMR Cases

5426.2 Release of Findings in Non-EMR Cases

5421 Emergency Release of Findings in Non-EMR Cases

5426.3 Release of Findings to Professional Licensing Boards and Other Agencies

APS April 2019

Licensing Boards and Other Agencies

APS may choose to release findings (Valid, Invalid, Unable to Determine, Other) of its investigations to the following, in addition to employers:

  •   Licensing boards.

  •   Commissions.

  •   Other agencies that give the designated perpetrator access to vulnerable adults.

Examples include, but are not limited to, the following:

  •   Texas State Board of Social Worker Examiners.

  •   Texas Board of Nursing.

  •   Texas Medical Board.

  •   State Bar of Texas.

  •   Texas Judicial Branch Certification Commission (for certified guardians).

APS Tasks

Valid Findings

Before notifying the appropriate entity of investigation findings of Valid, the APS specialist follows the administrative review and release hearing procedures in 5420 Due Process for Non-EMR (Employee Misconduct Registry) Cases. The APS specialist does this before completing the steps below.

All Findings (Including Valid)

Before notifying the appropriate entity of any investigation findings, the APS specialist completes the following steps:

1.   Consults his or her supervisor.

2.   Completes the appropriate form for the licensing board or other entity. (See the table below this list of steps.)

3.   Sends the completed form to the district director for review and approval.

4.   Sends the approved form and copies of any additional supporting documentation to the address on the form. The names of the victim and witnesses are not included, but the receiving entity may request them, if needed.

5.   Documents the notification in IMPACT.

6.   Keeps a copy of the completed form in the paper case file and documents this on the External Documentation page in IMPACT.

The table below provides links to the appropriate notification forms for various entities.

Professional Licensing Board, Commission, or Agency

Notification Form

Texas State Board of Social Worker Examiners

Complaint Form (see instructions) and General Release form

Texas Board of Nursing

Complaint Form

Texas Medical Board

Complaint Form

State Bar of Texas

Grievance Form

Texas Judicial Branch Certification Commission Certification Division

Complaint Form

Professional Codes of Ethics

It is important for the professional board or other entity to understand which code of conduct a person violated by committing the validated or alleged abuse, neglect, or financial exploitation. For example, an APS investigation of alleged sexual abuse may reveal that a consensual sexual relationship exists between an APS client (a consenting adult) and a licensed professional. This relationship would not be sexual abuse as defined in the Texas Administrative Code §705.1005, but the licensed professional’s actions may violate ethical standards set by the licensing board for his or her specific profession. A code of conduct is typically available on each board’s website.

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