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5430 Due Process for Client Protection

APS IH / April 2017

APS does not release findings of Unable to Determine or Invalid outside of DFPS except in cases when the client is a resident of an SSLC (see 5161 Procedure for Release of Information to State Supported Living Centers).

This section applies only when APS wants to release a finding of Valid outside DFPS to an outside entity that allows the designated perpetrator access to the client and the designated perpetrator is not:

  •   the perpetrator in a school investigation (see 5444 Administrative Review in School Personnel Cases);

  •   eligible for inclusion in the Employee Misconduct Registry (EMR) (see 5410 Employee Misconduct Registry (EMR)); or

  •   eligible for non-EMR due process (see 5420 Due Process for Non-EMR Cases).

In these instances, if APS wants to release the investigation findings outside of DFPS, the designated perpetrator must be provided with a complete due process hearing before the release, unless an emergency release is needed.

To ensure the designated perpetrator receives due process, the APS specialist follows the procedures in this section, which include a two-step process.

Administrative Review

The first step of due process is offering the designated perpetrator an administrative review of the investigation findings. The administrative review is an informal review conducted by the district director or designee for Adult Protective Services. The administrative review is required before offering a release hearing to the designated perpetrator. See 5432 Administrative Review in Client Protection Cases.

Release Hearing

If the finding at the administrative review is upheld, then the second step of due process is offering the designated perpetrator a release hearing. A release hearing is a formal due process hearing conducted by an administrative law judge (ALJ). If the ALJ upholds the finding on the allegation of abuse, neglect, or financial exploitation, then APS releases the findings outside DFPS. See 5433.2 Release Hearing and Subsequent Activities in Client Protection Cases.

Emergency Release of Findings Before Due Process

If DFPS determines a delay in releasing the findings will place the client in a state of or at risk of serious harm, DFPS may release the findings before offering due process to the designated perpetrator.

See:

5434.3 Emergency Release of Findings in Client Protection Cases

5434.31 Notice of Emergency Release of Findings to the Designated Perpetrator in Client Protection Cases

5431 Sending Notice of Intent to Release in Client Protection Cases

APS IH / May 2011

DFPS may release findings of Valid outside DFPS for the protection of APS clients.

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.

Criteria for Notification of Findings

The APS specialist must give written notification of the findings to each person designated as a perpetrator if:

  •  allegations of abuse, neglect, or financial exploitation by the perpetrator are found to be valid;

  •  the findings are to be released outside DFPS to an entity which allows the perpetrator to have access to the client; and

  •  the perpetrator, as a result of the release, may be denied a right or privilege, such as access to a family member.

DFPS Rules, 40 TAC §705.4101(c)(1)

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:

Notification of Intent to Release

Request for an Administrative Review

Request for Records (Form 4885) (see Form 4885 instructions)

If the designated perpetrator’s mailing address is not known, the APS specialist uses the DFPS Person Locator Service to locate the perpetrator’s address. See:

2551 Procedure for When Alleged Victim Cannot Be Located

5430 Due Process for Client Protection Cases

5434.3 Emergency Release of Findings in Client Protection Cases

5434.31 Notice of Emergency Release of Findings to the Designated Perpetrator in Client Protection Cases

5432 Administrative Review in Client Protection Cases

APS IH / May 2011

The request for an administrative review is addressed to the district director or designee for Adult Protective Services.

If no request is received within 30 days after the official notice is mailed by DFPS, the APS specialist releases the information unless it has already been released as an emergency release.

If an emergency release has been made and no request is received for an administrative review and release hearing, the APS specialist sends the perpetrator a notice confirming the emergency release.

See 5434.3 Emergency Release of Findings in Client Protection Cases

5432.1 Procedure for Administrative Review in Client Protection Cases

APS IH / May 2011

The district director or designee for Adult Protective Services conducts the administrative review. To document the review, the district director or designee creates an Administrative Review of Investigation (ARI) stage by selecting the Investigation stage in the closed case and the name of the perpetrator being reviewed. Steps for creating and completing an ARI stage in the IMPACT case management system can be found in IMPACT FYI.

The reviewer must not have directly supervised the APS specialist or have been involved in the investigation. The review is conducted within 30 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 day timeframe. However, failure to do so in the given timeframe does not waive the hearing or reverse the finding.

The perpetrator may:

  •  appear in person at the administrative review and may be accompanied by a representative;

  •  submit written material that is relevant to the case;

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

  •  all of the above.

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

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

Within 45 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;

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

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

The reviewer and the district director or designee 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:

Was a release hearing requested within 20 calendar days?

Upheld

No

Alleged perpetrator (AP) – Administrative Review Findings form and Request for a Release Hearing form.

Yes – State office sends the Request  for Release Hearing form (if returned by the perpetrator) and a copy of review findings to the Office of General Counsel, Director of Administrative Hearings at MC Y-956, with a cc: to the program administrator, supervisor and specialist.

If the AP sends the request directly to the regional office, the request is forwarded to the Office of General Counsel as outlined above.

No – The reviewer sends the Release of Findings to the appropriate person, entity, and so on.

Upheld

Yes

AP – same as above

Yes – The reviewer sends release hearing request and copy of review findings to the Office of General Counsel, Director of Administrative Hearings at MC Y-956.

No - The reviewer sends all others notified during emergency release (persons, entities, and so on) the Final Letter of Due Process.

Overturned

No

AP – Administrative Review Findings form

N/A

Overturned

Yes

AP – Administrative Review Findings form

All others notified during emergency release (persons, entities, and so on) – Final Letter of Due Process.

N/A

5433 Conducting Release Hearings for Client Protection Cases

5433.1 Receipt or Non-Receipt of Request for a Release Hearing in Client Protection Cases

APS IH / May 2011

If a perpetrator does not agree with the administrative review findings, he or she must request a release hearing by mailing the Request for a Release Hearing form back to APS. The request must be postmarked within 20 calendar days after the official notice is mailed by DFPS or the right to a release hearing is forfeited.

The request for the release hearing must be addressed to the:

Director of Adult Protective Services

MC E-561

Texas Department of Family and Protective Services

P.O. Box 149030

Austin, Texas 78724-9030

If a hearing is not requested within 20 calendar days, the district director or designee releases the findings as outlined in 5434.2 Release of Findings in Client Protection Cases.

See FYI resources:

Administrative Review and Appeal Page

Create an Administrative Review Stage

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

5433.2 Release Hearing and Subsequent Activities in Client Protection Cases

APS IH / May 2011

The release hearing is conducted by the state office of administrative hearings (SOAH). 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 ALJ 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 ALJ sustains the APS findings, the district director for Adult Protective Services, in coordination with the regional attorney, approves the manner and content of the release of data.

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

The district director or designee documents the outcome in the Administrative Review of Investigation (ARI) stage according to administrative review procedures. See 5432 Administrative Review in Client Protection Cases.

See IMPACT FYI Resources:

FYI Administrative Review and Appeal Page

FYI Create an Administrative Review Stage

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

See 5434.2 Release of Findings in Client Protection Cases

5434 Notification and Release of Findings in Client Protection Cases

5434.1 Notification of Decision in Client Protection Cases

APS IH / May 2011

The administrative law judge (ALJ) sends a copy of the decision to the 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 perpetrator’s status in the IMPACT case management system, if appropriate;

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

  •  files it in the paper case file.

5434.2 Release of Findings in Client Protection Cases

APS IH / May 2011

Once due process is completed and the finding is upheld, the finding may be released to any person or entity that allows perpetrator access to 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 appropriate entities.

This form includes:

  •  the name of the designated perpetrator;

  •  the nature and seriousness of the valid allegations; and

  •  the names of the victims of maltreatment, if appropriate.

If the release is an emergency, the APS specialist sends the Emergency Release of Findings, which outlines:

  •  DFPS’s decision that an emergency exists and that immediate intervention is indicated to prevent or remedy serious harm to a person 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, the original APS decision is altered or reversed.

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:

  •  whether due process has been offered or provided; and

  •  whether the findings have been overturned.

See:

2270 Referring Cases to Law Enforcement

5432 Administrative Review in Client Protection Cases

5432.1 Procedure for Administrative Review in Client Protection Cases

5434.3 Emergency Release of Findings in Client Protection Cases

5434.3 Emergency Release of Findings in Client Protection Cases

APS IH / May 2011

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

DFPS Rules, 40 TAC §705.4101(a)(2)

Although abuse, neglect, or financial exploitation information is not usually released outside DFPS before the results of the release hearing are known, the information may be released if DFPS determines that a delay in release would create an emergency because the perpetrator will have continuing access to vulnerable adults. The APS specialist consults with the supervisor, subject matter expert for investigation and financial exploitation, district director or designee, and regional attorney, if appropriate, to determine if an emergency release is required.

If it is determined an emergency release is necessary, the person or entity allowing the perpetrator access to vulnerable adults is notified of the findings. For content included in the release to external agencies in an emergency, see 5434.2 Release of Findings in Client Protection Cases.

If delay would create an emergency, the designated perpetrator does not have to receive written notification 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.

5434.31 Notice of Emergency Release of Findings to the Designated Perpetrator in Client Protection Cases

APS IH / May 2011

The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the emergency release of findings made to the person or entity allowing the perpetrator access to vulnerable adults. This notification includes:

Emergency Release

Request for an Administrative Review

Request for Records (Form 4885) (see Form 4885 instructions)

See:

5431 Sending Notice of Intent to Release in Client Protection Cases

5434.2 Release of Findings in Client Protection Cases

5440 Cases Involving School Personnel

APS IH / October 2013

Investigations of school personnel are a special category and are handled differently than other types of investigations. DFPS sends a written report of APS’s investigation of alleged abuse, neglect, or financial exploitation involving school personnel, regardless of the findings.

See:

1550 Allegations Involving Schools

2671 Investigations Involving Schools

5441 Processing the Completed School Investigation

APS IH / October 2013

DFPS’s Records Management Group (RMG) sends the report of the investigation, as appropriate, to:

  •  the Texas State Board of Educator Certification (SBEC);

  •  the local school board or the school’s governing body; and

  •  the school principal or director, unless the principal or director is alleged to have committed the abuse, neglect, or financial exploitation.

The entity to which the report is sent takes appropriate action.

Human Resources Code §48.102(a)

A perpetrator who is a school employee, volunteer or contractor is offered an administrative review only:

  •  after the investigative findings are released to school officials; and

  •  if the investigation finds that the allegations are valid.

School personnel are not entitled to a release hearing upon completion of the administrative review, regardless of the review findings.

See:

1550 Allegations Involving Schools

2671 Investigations Involving Schools

5442 Procedure for Processing the Completed School Investigation

APS IH / October 2013

Upon completion of all investigations involving students in school custody and regardless of the findings, specific actions are taken. The actions must be completed as outlined below. Questions regarding the process are addressed with the regional attorney.

Step 1: Notice of Conclusion of Investigation

For all investigations, regardless of the findings, the APS specialist mails Form 2300, Notice of Conclusion of Investigation (School Employees) to:

  •  Texas State Board of Educator Certification (SBEC) division of the Texas Education Agency (TEA);

  •  President of the local school board or governing body; and

  •  The school principal, unless the principal is the perpetrator.

Step 2: Providing Redacted Case Records

For all investigations, regardless of the findings, the APS specialist emails Records Management Group (RMG) requesting a copy of the redacted case record be sent to the entities listed above in step one. The request must include addresses for the:

  •  Local school board or governing body; and

  •  School principal, unless the principal is the perpetrator.

RMG sends the redacted case record to the entities listed above in Step 1.

Step 3: Notifying the Alleged Perpetrator

The specialist refers to the chart below to determine which procedures to follow next when notifying the perpetrator of the investigation findings.

Findings of Invalid, UTD, Other

Valid Findings

At the same time as sending the email to RMG, the APS specialist sends the alleged perpetrator form 2301, Notification of Release (School Employees).

The letter is sent by certified mail, return receipt requested. No further action is required by APS.

At the same time as sending the email to RMG, the APS specialist sends the perpetrator:

  •  Form 2301, Notification of Release (School Employees);

  •  Form 2302, Rights of Designated Perpetrators in Validated Cases (School Employees); and

  •  Form 2249, Request for an Administrative Review.

These letters are sent by certified mail, return receipt requested, unless DFPS determines a more immediate form of written notification is required.

See 5100 Confidentiality, Disclosure, and Release of Case Information.

5443 Timely Request for an Administrative Review in School Personnel Cases

APS IH / October 2013

The designated perpetrator’s request for an administrative review must be postmarked within 20 calendar days after the official notice of findings is mailed by DFPS. If the request is not postmarked within 20 calendar days, the designated perpetrator has forfeited the right to an administrative desk review.

Regional staff must wait at least 23 days and up to 30 calendar days after the official notice of findings is mailed by DFPS to consider the request forfeited. This allows adequate time for DFPS to receive the request and route it to the proper region. 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.

5443.1 Request for Records for an Administrative Review in School Personnel Cases

APS IH / October 2013

If the request for an administrative review is received in a timely manner and indicates the perpetrator is requesting a copy of the case record, the reviewer:

  •  scans the Designated Perpetrator Request for an Administrative Review (Form 2249); and

  •  emails the scanned document to the Records Management Group mailbox.

The Records Management Group processes the records requests and emails a copy of the record to the reviewer. The reviewer then mails to the designated perpetrator a copy of the case record.

5444 Administrative Review in School Personnel Cases

APS IH / October 2013

The district director or designee for Adult Protective Services conducts the administrative review.

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:

  •  the perpetrator requests the review be postponed because he or she has not received the case record yet; or

  •  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 day timeframe. However, failure to do so in the given timeframe does not waive the review or reverse the finding.

See also 5443 Timely Request for an Administrative Review in School Personnel Cases.

5444.1 Procedure for Administrative Review in School Personnel Cases

APS IH / October 2013

At the administrative review, the perpetrator may:

  •  appear in person at the administrative review and may be accompanied by a representative;

  •  submit written material that is relevant to the case;

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

  •  all of the above.

DFPS Rules, 40 TAC §705.4101(d)(1)

The 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 §705.4101(d)(2)

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

Within 45 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 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.

Steps for creating and completing an ARI stage in the IMPACT case management system can be found in IMPACT FYI.

5445 Notification of Final Findings for School Personnel

APS IH / October 2013

Administrative Review Completed

Within 45 days after the administrative review has been completed, the district director or designee sends the Findings of Administrative Review (School Employees) letter (Form 2303) to the perpetrator by certified mail, return receipt requested. Copies of the letter are also sent to all entities notified of the original findings. The outcome of the review is final and cannot be appealed.

Administrative Review Not Requested

When the designated perpetrator does not request an administrative review, the district director or designee sends the Notice of Final Findings of Investigation (School Employees) (Form 2304) to the perpetrator by certified mail, return receipt requested. Copies are also sent to all entities notified of the original findings.

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