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5420 Due Process for Non-EMR Cases

APS IH April 2018

DFPS may release investigation findings of Valid outside DFPS as noted in Title 40 of the Texas Administrative Code (40 TAC §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 when the designated perpetrator is not:

  •   the designated perpetrator in a school investigation; or

  •   eligible for inclusion in the EMR.

If APS is not going to release the findings of Valid to an outside entity, due process is not offered. See 5300 Desk Review for Designated Perpetrators. APS does not release the findings Unable to Determine or Invalid to persons outside of DFPS, except as outlined in:

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

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

For policy related to the release of findings in cases involving school employees, see 5444 Administrative Review in School Personnel Cases. For policy related to cases involving EMR, see 5410 Employee Misconduct Registry (EMR).

Examples of Designated Perpetrators in Non-EMR Cases

Examples include, but are not limited to:

  •   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 EMR because their actions do not rise to the level of reportable conduct.

  •   A person who:

  •   is either privately hired and paid by the alleged victim or on behalf of the alleged victim to provide personal care services, or who is a designated perpetrator against a family member, and

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

  •   HHSC guardianship specialists in their role as guardian for a person who is a ward of HHSC OGS. See 5100 Confidentiality, Disclosure, and Release of Case Information.

To ensure that the designated perpetrator receives due process, the APS specialist follows a two-stage process that involves:

  •   an administrative review; and

  •   a release hearing.

The APS specialist begins the process by notifying the designated perpetrator of the intent to release the findings and offers an administrative review. When the designated perpetrator is an employee of HHSC OGS who is acting as an agent for HHSC OGS, the administrative review is conducted by a reviewer from the DFPS region that conducted the investigation.

If DFPS determines that a delay in releasing the findings will place persons age 65 or older or adults with disabilities in a state of or at risk of serious harm, DFPS may complete an emergency release of findings before offering due process to the designated perpetrator.

See also:

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(a)(2); §705.1001

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 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 in Non-EMR Cases

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 78724-9030

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 APS Findings to Professional Licensing Boards, Commissions, 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 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 APS Findings to Professional Licensing Boards, Commissions, and Other Agencies

APS IH October 2018

In addition to employers, APS may choose to release findings of APS investigations (Valid, Invalid, Unable to Determine, Other) to licensing boards, commissions, or other agencies who allow the perpetrator access to vulnerable adults.

Some examples of these entities include, but are not limited to, the following:

  •   Texas State Board of Social Work Examiners

  •   Texas Board of Nursing

  •   Texas Medical Board

  •   State Bar of Texas

  •   Texas Judicial Branch Certification Commission (for certified guardians)

Before notifying these entities of any APS investigative findings of Valid, the APS specialist must follow the administrative review and release hearing procedures in 5420 Due Process for Non-EMR Cases.

Before notifying the appropriate entity of any investigation findings, the APS specialist

  •   consults his or her supervisor and regional attorney;

  •   completes the appropriate form for the licensing board; and

  •   sends the completed form to the regional attorney for review.

The regional attorney assists the APS specialist in determining what professional licensing regulation or code of conduct the perpetrator violated. It is important for the professional board to understand what code of conduct was violated as a result of the validated 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 the licensed professional. Although this relationship would not constitute sexual abuse as defined in the Texas Administrative Code §705.1005, the licensed professional’s acts may violate ethical standards set by his or her specific licensing board. Codes of Conduct are typically located on the agencies’ websites.

After the regional attorney reviews the form, the APS specialist sends the form and copies of any additional supporting documentation to the addresses shown on the complaint form. The name of the victim and witnesses are not included. The board may request names, if needed.

Professional Licensing Board, Commission, or Agency

Notification Form

Texas State Board of Social Work Examiners

Complaint Form (see instructions) and the General Release forms.

Texas Board of Nursing

Complaint Form

Texas Medical Board

Complaint Form

State Bar of Texas

Grievance Form

Texas Judicial Branch Certification Commission Compliance Section

Complaint Form

The APS specialist documents the notification in IMPACT. A copy of the written notification is retained in the paper case file and a notation is made in the External Documentation page.

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