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1000 APS Provider Investigations Program Overview

1100 Legal Base

APS Provider Investigations April 2017

APS Provider Investigations operates under the authority of Chapter 48, Title 2, Texas Human Resources Code (HRC) and 40 Texas Administrative Code (TAC), Chapter 711, to investigate abuse, neglect, and exploitation of individuals receiving services from certain providers.

1200 Definitions

APS Provider Investigations November 2017

The following words and terms, when used in this handbook, have the following meanings unless the context clearly indicates otherwise.

Administrator: The person in charge of a provider or that person’s designee. The term does not apply to the DADS assistant commissioner of state supported living centers (SSLC) or the DSHS assistant commissioner for mental health substance abuse services.

Adult: A person 18 years of age or older, or a person under 18 years of age who is or has been married or who has had the disabilities of minority removed for general purposes.

Adult Protective Services Provider Investigation (APS PI) program: A division of Health and Human Services Commission, Regulatory Services Department, that investigates allegations of abuse, neglect, and exploitation of individuals receiving services from certain providers.

Adult Protective Services provider investigator: An employee of the Texas Health and Human Services Commission who:

  •   investigates allegations of abuse, neglect, and exploitation according to Human Resources Code Chapter 48, Subchapter F and Family Code Chapter 261;

  •   has expertise and demonstrated competence in conducting investigations; and

  •   received training on techniques for communicating effectively with individuals with a disability.

Agency: DADS, DSHS, HHSC

Agent: An individual not employed by but working under the auspices of a service provider or contractor (for example, a student or volunteer).

Allegation: A report by an individual that an individual receiving services has been or is being abused, neglected, or exploited.

Allegation Type: The type of allegation investigated under 40 TAC Chapter 711. The APS Provider Investigation program investigates the following allegation types:

  •   physical abuse;

  •   sexual abuse;

  •   verbal/emotional abuse;

  •   neglect; and

  •   exploitation.

Alleged perpetrator: A person alleged to have abused, neglected, or exploited an individual receiving services.

Alleged Victim: An individual receiving services who is alleged to have been abused, neglected, or exploited.

Child: A person under 18 years of age who has not been married and has not had the disabilities of minority removed for general purposes.

Clinical practice: Relates to a licensed professional’s demonstration of professional competence, as described by the licensing professional board.

Community center (formerly known as a community MHMR center): A community center serves persons with mental health or intellectual disabilities and is established under the Texas Health and Safety Code, Chapter 534, Subchapter A.

Community provider: Excluding HCS and TxHmL waiver program providers, a community provider is:

  •   a person who contracts with a health and human services agency or managed care organization to provide home and community-based services;

  •   a person who contracts with a Medicaid managed care organization to provide behavioral health services;

  •   a managed care organization;

  •   an officer, employee, agent, contractor, or subcontractor of a person or entity listed in Paragraphs (A)-(E); and

  •   an employee, fiscal agent, case manager, or service coordinator of an individual employer participating in the consumer directed service option, as defined by Section 531.051, Government Code.

Confirmed: Term used to describe an allegation that is supported by the preponderance of the evidence.

Consumer Directed Services (CDS): A service delivery option in which an individual receiving services or legally authorized representative employs and retains service providers and directs the delivery of program services.

Contractor: Any organization, entity, or individual who contracts with a provider to provide services directly to a person with physical, mental, or intellectual disabilities. The term includes:

  •   a day habilitation;

  •   a foster care provider; and

  •   a local independent school district with which a facility, local authority, or community center has a memorandum of understanding (MOU) for educational services.

Contractor CEO: The person in charge of a contractor that has one or more employees, excluding the CEO. The term includes the CEO of a day habilitation.

DADS: Texas Department of Aging and Disability Services.

DADS Consumer Rights and Services: The section at DADS state office that protects the rights of individuals receiving services (also known as DADS CRS).

Designated perpetrator: A direct provider who has committed an act of abuse, neglect, or exploitation.

DFPS: Texas Department of Family and Protective Services.

Direct provider: The person, employee, agent, contractor, or subcontractor responsible for providing services to the individual receiving services.

DSHS: Texas Department of State Health Services.

DSHS Consumer Services and Rights Protections: The unit at DSHS central office that protects the rights of individuals receiving services.

Emergency order for protective services: A court order for protective services obtained under Human Resources Code, §48.208 (also known as EOPS).

Exploitation: When the alleged perpetrator is a direct provider providing services to an individual in the home and community, except for individuals receiving services from HCS waiver program or TxHmL waiver program providers, exploitation is defined as:

  •  the illegal or improper act or process of using or attempting to use an individual receiving services or the resources of an individual receiving services for monetary or personal benefit, profit, or gain; and

  •  theft as defined in Chapter 31 of the Texas Penal Code.

For all other service providers, when the alleged perpetrator is a direct provider, exploitation is defined as the illegal or improper act or process of using an individual receiving services or the resources of an individual receiving services for monetary or personal benefit, profit, or gain.

40 TAC 711.21

Facility: This term refers to any of the following:

  •   DADS and DSHS central offices, state supported living centers, state hospitals, the Rio Grande State Center, the Waco Center for Youth, and the El Paso Psychiatric Center, including community services operated by DADS or DSHS.

  •   A person contracting with a health and human services agency to provide inpatient mental health services.

  •   Intermediate care facilities for individuals with an intellectual disability or related conditions (ICF/IID) licensed under Chapter 252, Health and Safety Code.

Financial management services agency (FMSA): A person who contracts with DADS to provide financial management services.

40 TAC §49.102

Forensic Assessment Center Network (FACN): A coordinated group of geriatricians, pediatricians, and other medical professionals in Texas who are experts in identifying abuse and neglect. The FACN is a joint project between DFPS and the University of Texas Health Science Center–Houston that provides medical expertise for APS PI investigators.

HHSC: Texas Health and Human Services Commission.

Home and Community-based Services (HCBS): Services provided in the home or community in accordance with 42 U.S.C. Section 1315, 42 U.S.C. Section 1315a, 42 U.S.C. Section 1396a, or 42 U.S.C. Section 1396n.

Texas Human Resources Code §48.251(a)(5)

Home and Community-based Services – Adult Mental Health Program (HCBS-AMH): A program authorized under 1915(i) of the Social Security Act (42 U.S.C. Section 1396n) that provides HCBS to Medicaid and non-Medicaid individuals with serious mental illness who have extended tenure in state mental health facilities.

Home and Community-based Services (HCS) Waiver Program: Medicaid program authorized under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)) for the provision of services to persons with an intellectual or developmental disability described by §534.001(11)(B), Texas Government Code.

Home and community support services agency (HCSSA): An agency licensed under Chapter 142, Health and Safety Code.

ICF/IID: A licensed intermediate care facility for individuals with an intellectual disability or related conditions, as described in Chapter 252, Health and Safety Code.

Incitement: To spur to action or instigate into activity. This term implies responsibility for initiating another person’s actions.

Individual receiving services: This term refers to:

  •   an adult or child who receives services from a provider, as that term is defined below;

  •   an adult or child who lives in a residence that is owned, operated, or controlled by an HCS waiver program provider, regardless of whether the individual is receiving HCS waiver program services; or

  •   a child receiving services from an HCSSA, as that term is defined above.

Inconclusive: Term used to describe that there is not a preponderance of credible evidence to indicate that abuse, neglect, or exploitation did or did not occur due to lack of witnesses or other available evidence.

Limited service provider (LSP): The company or individual that provides only certain services; a specialty provider. An MCO, HCSSA, HCS, or TxHmL provider may contract with an LSP to provide certain services to an individual receiving services.

Loan: Money or property given to someone to use for a period of time with an understanding that it will be paid back.

Local authority: This term refers to either a local mental health authority or a local intellectual and developmental disability authority.

Local mental health authority: Designated by the HHSC executive commissioner in accordance with section 533.035, Health and Safety Code and as defined by section 531.002, Health and Safety Code.

Local intellectual and developmental disability authority: Designated by the HHSC executive commissioner in accordance with section 533A.035, Health and Safety Code and as defined by section 531.002, Health and Safety Code.

Medical intervention or treatment: Intervention or treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician’s assistant, or advance practice nurse. Medical intervention or treatment does not include first aid, an examination, diagnostics (such as an x-ray or blood test), or the prescribing of oral or topical medication.

Mental health services provider: An individual, licensed or unlicensed, who performs or claims to perform mental health services, including a:

  •  licensed social worker, as defined by §505.002, Texas Occupations Code;

  •  chemical dependency counselor, as defined by §504.001, Texas Occupations Code;

  •  licensed professional counselor, as defined by §503.002, Texas Occupations Code;

  •  licensed marriage and family therapist, as defined by §502.002, Texas Occupations Code;

  •  member of the clergy;

  •  physician who is practicing medicine, as defined by §151.002, Texas Occupations Code;

  •  psychologist offering psychological services, as defined by §501.003 Texas Occupations Code; and

  •  special officer for mental health assignment certified under §1701.404, Texas Occupations Code.

Texas Civil Practice and Remedies Code, §81.001

Neglect: When the alleged perpetrator is a direct provider, neglect is defined as a negligent act or omission which caused or may have caused physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death.

Examples of neglect may include, but are not limited to, the failure to:

  •   establish or carry out an appropriate individual program plan or treatment plan for a specific individual receiving services, if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death;

  •   provide adequate nutrition, clothing, or health care to a specific individual receiving services in a residential or inpatient program if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death; or

  •   provide a safe environment for a specific individual receiving services, including the failure to maintain adequate numbers of appropriately trained staff, if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death.

40 TAC 711.19

Non-serious physical injury:

  •   In state supported living centers and state hospitals — Any injury requiring minor first aid and determined not to be serious by a registered nurse, advanced practice nurse, or physician.

  •   For all other service providers — Any injury determined not to be serious by the appropriate medical personnel. Examples of a non-serious physical injury may include:

  •  a superficial laceration;

  •  a contusion two and one-half inches in diameter or smaller; or

  •  an abrasion.

Ongoing Relationship: A personal relationship that includes:

  •  frequent and regular interaction;

  •  a reasonable assumption that the interaction will continue; and

  •  an establishment of trust beyond a commercial or contractual agreement.

Physical Abuse: When the alleged perpetrator is a direct provider, physical abuse is defined as:

  •   an act, or failure to act, performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to an individual receiving services;

  •   an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to an individual receiving services; or

  •   the use of chemical or bodily restraints or seclusion on an individual receiving services not in compliance with federal and state laws and regulations, including:

25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Programs)

25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

40 TAC Chapter 3, Subchapter F (relating to Restraints);

40 TAC Chapter 90, Subchapter C (relating to Standards for Licensure);

40 TAC Chapter 2, Subchapter G (relating to Role and Responsibilities of a Local Authority);

40 TAC Chapter 9, Subchapter D (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC));

40 TAC Chapter 9, Subchapter N (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC));

40 TAC Chapter 97, Subchapter H (relating to Standards Specific to Agencies Licensed to Provide Hospice Services);

40 TAC Chapter 42, Subchapter D (relating to Additional Program Provider Provisions);

1 TAC Chapter 353, Subchapter C (Member Bill of Rights); and

40 TAC Chapter 45, Subchapter H (relating to Additional DSA Requirements).

40 TAC §711.11

Physical force: Pressure applied to an individual’s body.

Preponderance of evidence: The greater weight of evidence, or evidence which is more credible and convincing to the mind.

Prevention and Management of Aggressive Behavior (PMAB): The DADS proprietary risk management program that uses the least intrusive, most effective options to reduce the risk of injury for persons served and staff from acts or potential acts of aggression.

Peer or professional review: A review of clinical and professional practices by peer professionals.

Provider:

  •   a facility;

  •   a community center, local mental health authority, and local intellectual and developmental disability authority;

  •   a person who contracts with a health and human services agency or managed care organization to provide home and community-based services;

  •   a person who contracts with a Medicaid managed care organization to provide behavioral health services;

  •   a managed care organization;

  •   an officer, employee, agent, contractor, or subcontractor of a person or entity listed above; and

  •   an employee, fiscal agent, case manager, or service coordinator of an individual employer participating in the Consumer Directed Service option, as defined by Section 531.051, Government Code.

Texas Human Resources Code §48.251(a)(9)

Reasonable person: A hypothetical person who exercises average care, skill, and judgment.

Reporter: The person who makes an allegation. The reporter may be anonymous.

Residential Child Care Licensing (RCCL): A division of DFPS that licenses 24-hour child care programs, including residential treatment centers and emergency shelters.

Responsible Party: A person who traditionally is responsible for a child's care, custody, or welfare, including:

  •   a parent, guardian, managing or possessory conservator, or foster parent of the child;

  •   a member of the child's family or household as defined by Chapter 71 of the Texas Family Code;

  •   a person with whom the child's parent cohabits;

  •   school personnel or volunteers at the child's school; or

  •   personnel or volunteers at a public or private child care facility that provides services for the child or at a public or private residential institution or facility where the child resides.

Restraint: The use of physical contact, a mechanical device, or a chemical to involuntarily restrict the free movement or normal functioning of the whole or part of the body of an individual receiving services. A restraint is used to control physical activity or behavior.

Seclusion: Placing an individual receiving services alone for any period of time in a hazard-free room or other area where he or she can be watched at all times and cannot leave.

Serious physical injury:

  •   In state supported living centers and state hospitals — Any injury requiring medical intervention or hospitalization or determined to be serious by a physician or advanced practice nurse. Medical intervention is treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician’s assistant, or advanced practice nurse. Medical intervention does not include first aid, an examination, diagnostics (such as an x-ray or blood test), or the prescribing of oral or topical medication.

  •   For all other service providers — An injury determined to be serious by the appropriate medical personnel who examined the person. Examples of serious physical injuries include:

  •  a fracture;

  •  a dislocation of any joint;

  •  an internal injury;

  •  a contusion larger than two and one-half inches in diameter;

  •  a concussion;

  •  a second or third degree burn; or

  •  any laceration requiring sutures.

Service provider: The provider, HCSSA, HCS, or TxHmL waiver program provider that employs, contracts with, or supervises the direct provider of services to an individual receiving services.

Sexually transmitted disease: Any infection with or without symptoms or clinical manifestations that can be transmitted from one person to another by sexual contact.

Sexual abuse: When the alleged perpetrator is a direct provider, sexual abuse is defined as any sexual activity, including:

  •   kissing an individual receiving services with sexual intent;

  •   hugging an individual receiving services with sexual intent;

  •   stroking an individual receiving services with sexual intent;

  •   fondling an individual receiving services with sexual intent;

  •   engaging in sexual conduct as defined in the Texas Penal Code, §43.01 or any activity that is obscene as defined in the Texas Penal Code, §43.21;

  •   requesting, soliciting, or compelling an individual receiving services to engage in:

  •   sexual conduct as defined in the Texas Penal Code, §43.01, or

  •   any activity that is obscene as defined in the Texas Penal Code, §43.21;

  •   in the presence of an individual receiving services:

  •   engaging in or displaying any activity that is obscene, as defined in the Texas Penal Code §43.21, or

  •   requesting, soliciting, or compelling another person to engage in any activity that is obscene, as defined in the Texas Penal Code §43.21;

  •   committing sexual exploitation as defined in 40 TAC §711.13, against an individual receiving services;

  •   committing sexual assault as defined in the Texas Penal Code §22.011, against an individual receiving services;

  •   committing aggravated sexual assault as defined in the Texas Penal Code, §22.021, against an individual receiving services; and

  •   causing, permitting, encouraging, engaging in, or allowing the photographing, filming, videotaping, or depicting of an individual receiving services if the direct provider knew or should have known that the resulting photograph, film, videotape, or depiction of the individual receiving services is obscene as defined in the Texas Penal Code, §43.21, or is pornographic.

Consensual sexual activity between a direct provider and an adult receiving services is not considered sexual abuse if the consensual sexual relationship began prior to the direct provider becoming a direct provider.

40 TAC §711.13

Texas Administrative Code (TAC): The Texas Administrative Code is a compilation of all state agency rules in Texas.

Texas Home Living (TxHmL) waiver program: Medicaid program authorized under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)) for the provision of services to persons with an intellectual or developmental disability described by §534.001(11)(D), Government Code.

Theft: The act of stealing or an unlawful taking of property according to Chapter 31 of Texas Penal Code.

Unconfirmed: Term used to describe an allegation in which a preponderance of evidence exists to prove that it did not occur.

Unfounded: Term used to describe an allegation that is spurious or patently without factual basis.

Verbal or emotional abuse: When the alleged perpetrator is a direct provider, verbal or emotional abuse is any act or use of verbal or other communication, including gestures, to curse, vilify, or degrade an individual receiving services or threaten him or her with physical or emotional harm. The act or communication must result in observable distress or harm to the individual receiving services, or be of such a serious nature that a reasonable person would consider it harmful or causing distress.

40 TAC 711.17

Youth Empowerment Services (YES) waiver: A waiver authorized under 1915(c) of the Social Security Act, which prevents or reduces institutionalization of children and adolescents with severe emotional disturbance (SED), enables more flexibility in providing intensive community-based services for children and adolescents with SED, and provides support for their families by improving access to services.

See Title 40 of the Texas Administrative Code §711.3

1300 DFPS Investigative Authority

1310 APS Provider Investigations Jurisdiction

APS Provider Investigations April 2017

Allegations

When the alleged perpetrator is a direct provider, or is unknown, APS Provider Investigations (APS PI) has the authority to investigate allegations of:

  •  physical abuse;

  •  sexual abuse;

  •  verbal or emotional abuse;

  •  neglect; and

  •  exploitation.

APS PI also investigates:

  •  the pregnancy of an individual receiving services from a facility or facility contractor if there is:

  •  medical verification that conception could have occurred while the individual receiving services was a resident of the facility or of a facility contractor; and

  •  a reasonable expectation that conception occurred while the individual was a resident of the facility or of a facility contractor;

  •  the sexually transmitted disease (STD) of an individual receiving services from a facility or of a facility contractor, if the individual could have acquired the STD while a resident of the facility or of a facility contractor; and

  •  an injury of unknown origin, if appropriate medical personnel, after examining the individual receiving services, suspect the injury is the result of abuse or neglect.

Providers

APS PI has authority to investigate allegations of abuse, neglect, or exploitation of individuals receiving services from:

  •  facilities;

  •  a person who contracts with an HHS agency to provide inpatient mental health services;

  •  a community center, local mental health authority, or local intellectual and developmental disability authority;

  •  a person who contracts with an HHS agency or managed care organization (MCO) to provide home and community-based services;

  •  a person who contracts with an MCO to provide behavioral health services;

  •  an MCO;

  •  an officer, employee, agent, contractor, or subcontractor of one of the individuals or entities listed above; and

  •  an employee, agent, case manager, or services coordinator of an individual participating in the Consumer Directed Services option.

APS PI also has authority to investigate allegations of abuse, neglect, or exploitation of:

  •  individuals residing in an HCS group home, regardless of whether the individual is receiving services under the waiver program from the provider; and

  •  children receiving services from an HCSSA.

APS does not investigate if the provider is licensed and another agency has authority to investigate the abuse, neglect, or exploitation of the provider.

DFPS Rules, 40 TAC, §711.1

1311 Entities Investigated by APS Provider Investigations

APS Provider Investigations April 2017

Facilities for Individuals with an Intellectual Disability or Related Conditions

DADS operates 13 facilities for individuals with an intellectual disability or related conditions. The 13 facilities include 12 SSLCs and the Rio Grande State Center’s ICF/IID. These facilities provide campus-based services such as:

  •  case management;

  •  health care;

  •  basic skills training;

  •  vocational training; and

  •  family support services.

DADS also licenses intermediate care facilities for individuals with an intellectual disability or related conditions. These are residential facilities serving four or more people with an intellectual disability or related conditions. They are operated by both private and public (community centers and a state agency) entities. These facilities provide diagnosis, treatment, rehabilitation, ongoing evaluation, planning, 24-hour supervision, coordination, and integration of health or rehabilitative services.

Mental Health Providers

DSHS operates 11 facilities for persons with mental illness. These facilities include state hospitals and the Rio Grande State Center’s mental health services facility. They all provide both short- and long-term residential mental health services. They may also provide other services, such as case management, medication-related services, rehabilitation and vocational services, and family support services.

DSHS licenses private psychiatric hospitals. APS PI has the authority to investigate a private psychiatric facility that contracts directly with DSHS. An example of this is the University of Texas at Tyler.

Community Centers

Community centers provide case management, medication monitoring, family support, and other services. A center may also operate its own group homes, ICF/IIDs, and HCS programs, or may contract for services with private providers. Community centers are governed by a local board of trustees.

Community centers are not state agencies and are not affiliated with DADS or DSHS facilities. They contract with and receive a portion of their funding through DSHS.

Local Authorities

A local authority is either:

  •  a local mental health authority designated by the HHSC executive commissioner in accordance with section 533.035, Health and Safety Code and as defined by section 531.002, Health and Safety Code; or

  •  a local intellectual and developmental disability authority designated by the HHSC executive commissioner in accordance with section 533A.035, Health and Safety Code and as defined by section 531.002, Health and Safety Code.

Home and Community-based Services (HCBS)

Home and Community-based Services (HCBS) are contracted Medicaid long-term services and supports (LTSS). HCBS LTSS helps people age 65 and older and those with disabilities to experience dignified, independent, and productive lives in safe living environments. Services can be contracted through an HHS agency or managed care organization and be with an individual or HCSSA agency.

See Appendix II: Jurisdictions.

Behavioral Health Services

Behavioral health services are:

  •  services related to research, prevention, and detection of mental disorders and disabilities;

  •  services necessary to treat, care for, control, supervise, and rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities result from a substance abuse disorder, alcoholism, or drug addiction; and

  •  interventions to treat:

  •  abuse of alcohol or a controlled substance;

  •  psychological or physical dependence on alcohol or a controlled substance;  or

  •  addiction to alcohol or a controlled substance.

APS PI has authority to investigate allegations of abuse, neglect, and exploitation involving a behavioral health services provider when the person contracts directly with a managed care organization.

Managed Care Organization (MCO)

Texas Medicaid uses managed care to provide health care services to most clients. Medicaid managed care must cover the same services as traditional Medicaid. Clients receive health care services and long-term services and supports through a managed care organization (MCO).

The MCO is an organization that is authorized to arrange for or provide a managed care plan. HHSC contracts with MCOs and pays them a monthly amount to coordinate and reimburse providers that deliver health services to Medicaid members enrolled in their health plan.

Home and Community Support Services Agency

A home and community support services agency (HCSSA) is an agency that provides home health, hospice, habilitation, or personal assistance services for pay or other consideration in a client’s residence, an independent living environment, or another appropriate location. HHSC regulates HCSSAs. However, APS PI has the authority to investigate allegations of abuse, neglect, or exploitation involving an HCSSA employee when:

  •  the HCSSA contracts with an HHS agency or MCO to provide HCBS services to an individual; or

  •  the individual receiving services is a child, regardless of the funding source for services.

Consumer Directed Services

Consumer directed services (CDS) is a service delivery option that allows individuals to hire and manage the employees who provide their services. CDS employers make decisions about the delivery of services within their current home and community-based program, including:

  •   making a budget;

  •   deciding how much to pay employees; and

  •   setting schedules to meet their needs.

APS PI investigates all abuse, neglect, and exploitation allegations involving CDS.

Independent School Districts

APS PI investigates allegations involving an individual receiving services and an employee of an independent school district (ISD), if the ISD is a contractor of the provider.

1320 APS In-Home Jurisdiction

APS Provider Investigations April 2017

APS In-Home investigates allegations of abuse, neglect, and financial exploitation of persons age 65 and older and adults with substantial impairment by:

  •   family members;

  •   caretakers; and

  •   other individuals with an ongoing relationship with the alleged victim.

For additional information on APS In-Home investigations, please refer to the Adult Protective Services Handbook, 2000 Investigation Stage.

1330 Residential Child Care Licensing Jurisdiction

APS Provider Investigations April 2017

Residential Child Care Licensing (RCCL) is a division of DFPS. RCCL licenses 24 hour child care programs, including residential treatment centers and emergency shelters.

1340 Child Protective Services Jurisdiction

APS Provider Investigations April 2017

CPS investigates allegations that a child in Texas is being abused or neglected by:

  •   the child’s parents (or another legally responsible person);

  •   the child’s family;

  •   the child’s household members; or

  •   staff or volunteers at the child’s public or private school.

For additional information on CPS investigations, please refer to the Child Protective Services Handbook, 2000 Intake, Investigation, and Assessment.

1400 When DFPS Does Not Have Jurisdiction to Investigate

1410 Texas Department of Aging and Disability Services

APS Provider Investigations April 2017

State supported living centers operated by the Texas Department of Aging and Disability Services (DADS) are licensed and certified as intermediate care facilities (ICF/IIDs) by DADS. At times, both DFPS and DADS have jurisdiction to investigate a particular case at a state supported living center. The DADS investigation is conducted from a licensing perspective, while DFPS investigates to determine if abuse, neglect, or exploitation has occurred. DADS and DFPS should conduct a joint investigation when feasible and appropriate.

1420 Texas Department of State Health Services

APS Provider Investigations April 2017

DSHS licenses private psychiatric hospitals, crisis stabilization units, and alcohol and drug abuse treatment centers. DSHS investigates abuse, neglect, and exploitation in alcohol and drug abuse treatment centers. APS does not have jurisdiction in alcohol and drug abuse treatment centers and refers allegations to DSHS at 1-888-973-0022.

See:

1311 Entities Investigated by APS Provider Investigations

1430 University of Texas

APS Provider Investigations April 2017

DFPS does not have jurisdiction to investigate allegations from a hospital or psychiatric center operated by the University of Texas. DFPS refers these allegations to the administrator of the facility where the incident occurred.

There are some exceptions when the private psychiatric center contracts directly with DSHS.

See 1311 Entities Investigated by APS Provider Investigations.

1440 Attorney General of Texas

APS Provider Investigations April 2017

The Office of the Attorney General’s (OAG) Medicaid Fraud Control Unit (MFCU) has broad authority to investigate abuse, neglect, and exploitation within Medicaid. MFCU assists local and federal authorities in prosecuting Medicaid providers who have committed Medicaid fraud. MFCU and the HHSC Office of Inspector General (OIG) coordinate work on overpayment cases. OAG has statutory authority to investigate:

  •  criminal and civil fraud committed by Medicaid providers;

  •  fraud committed within the administration of the Medicaid program; and

  •  physical abuse and criminal neglect of patients in health care facilities licensed by the Medicaid program, including:

  •  nursing homes;

  •  DADS state supported living centers;

  •  licensed intermediate care facilities for individuals with an intellectual disability or related conditions; and

  •  group homes operated by providers of home and community based services, including homes operated through the Texas Home Living program.

APS may share information or evidence with OAG, including evidence that identifies clients or reporters of abuse or neglect. APS employees who receive requests for information from OAG representatives must notify their managers and cooperate fully with OAG.

1450 Office of Inspector General

APS Provider Investigations April 2017

U.S. Department of Health and Human Services Office of Inspector General (HHS OIG)

HHS OIG is the largest inspector general’s office in the federal government, with approximately 1,600 employees dedicated to combating fraud, waste, and abuse and to improving efficiency in HHS programs. A majority of HHS OIG’s resources goes toward the oversight of Medicare and Medicaid.

Texas Health and Human Services Commission Office of Inspector General (HHSC OIG)

HHSC OIG’s Medicaid Provider Integrity (MPI) section performs the following duties:

  •  Investigates allegations of fraud, waste, and abuse involving Medicaid providers and other HHS programs.

  •  Refers cases to sanctions; refers cases and investigative leads to law enforcement agencies, licensure boards, and regulatory agencies; and refers complaints to MFCU.

  •  Provides investigative support and technical assistance to other OIG divisions and outside agencies.

APS may share information or evidence with both the HHS and HHSC OIG, including evidence that identifies clients or reporters of abuse or neglect.

See:

3122 Notification to HHSC Office of Inspector General (OIG)

3223 Investigations Involving the Office of the Inspector General (OIG)

1460 Allegations of Abuse, Neglect, or Exploitation on Indian Reservations

APS Provider Investigations November 2017

An Indian reservation is a legal designation for an area of land managed by a Native American tribe under the US Bureau of Indian Affairs. APS PI has no authority to conduct an investigation on Indian reservations without permission from reservation officials. When allegations are received that involve abuse, neglect, or exploitation of an individual receiving services residing on Indian reservations, APS PI requests agreement or assistance from reservation officials.

Procedure for Allegations of ANE on an Indian reservation

The investigator immediately notifies the reservation’s social work department of the allegations and requests permission to conduct an investigation.

If permission is denied, the investigator contacts the HHSC regional attorney.

1500 Communication Assistance

APS Provider Investigations April 2017

According to the federal Civil Rights Act:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Title VI of the Civil Rights Act of 1964

The protections cited above also apply to persons with limited English proficiency (LEP) or sensory or speaking impairments.

Executive Order 13166, August 11, 2000

DFPS must provide communication assistance to persons with LEP or impaired sensory or speaking skills. LEP refers to the language a person uses to communicate; sensory impairments can affect how a person communicates.

When an individual receiving services has a limited ability to communicate in English, the investigator must make reasonable, documented efforts to provide information and services in a language or medium that the individual can understand. The investigator uses an interpreter, translator, reader, or other appropriate communication method. An individual receiving services should be able to explain a situation in his or her preferred mode of communication.

All individuals receiving services must be given equal access to protective services and information about the investigative process, outcome, and due process rights. A person must be provided appropriate interpreter services if he or she:

  •  has limited ability to communicate in English (orally or in writing) due to sensory impairments; or

  •  needs a translator or interpreter because he or she normally uses a language other than English to communicate.

1510 Who May Provide Interpreter Services

APS Provider Investigations April 2017

To ensure that the individual receiving services does not feel threatened during the interview process, the investigator does not use family members or provider employees as interpreters unless it is determined that the potential interpreter:

  •  has a unique ability to understand what the individual is communicating;

  •  does not have a conflict of interest in participating in the investigation or a vested interest in the outcome of the investigation;

  •  was not involved in the alleged incident of abuse, neglect, or exploitation; and

  •  does not have a relationship with someone involved in the incident.

Examples of employees who may be appropriate interpreters include a speech pathologist or the speech and hearing teacher. If it is necessary to use a direct care provider, the investigator should consider using a staff person on a different shift than the alleged perpetrator, as long as the other staff person meets the criteria previously outlined.

1520 Cost of Services

APS Provider Investigations April 2017

The investigator obtains interpreter services at no cost to the individual receiving services. APS district management must ensure that their staff develop local resources to provide interpreter services upon request and create a local listing of available resources. If interpreter services cannot be located through volunteer sources, the investigator should consult with his or her supervisor to arrange for the purchase of services.

1530 Methods of Communicating

APS Provider Investigations April 2017

DFPS’s Language Services Policy (operating policy CD-2007.03) explains the guidelines an investigator must follow when an alleged victim has:

  •  limited English proficiency (LEP);

  •  impaired sensory ability; or

  •  impaired speaking ability.

In addition to the Language Services Policy, DFPS staff follow the policies and procedures in the program handbooks and the DFPS Language Services Guide.

Persons with LEP or sensory impairments have the right to communicate in a manner that is comfortable for them. Staff should consider the person’s unique abilities and needs when selecting methods of communication. APS makes these efforts so persons with LEP or hearing, visual, or speech impairments understand all significant APS actions, such as:

  •  an investigation; and

  •  judicial proceedings (where court does not provide these services).

IMPACT Documentation of Communication Assistance

The investigator documents in IMPACT how he or she determines that an interviewee is unable to communicate. This includes:

  •  reviewing the interviewee’s communication plan;

  •  asking a staff person who knows the interviewee and is unrelated to the incident being investigated; and

  •  contacting a parent or guardian who has a history with the interviewee.

1540 Confidentiality

APS Provider Investigations April 2017

When a non-APS interpreter is used, confidentiality of the case information must be maintained.

1550 IMPACT Documentation of Communication Efforts

APS Provider Investigations April 2017

The investigator documents limited English proficiency (LEP) or impaired sensory or speaking skills on the Person Characteristic page of IMPACT.

The investigator documents the use of an interpreter in IMPACT in the Contact Summary page. The investigator enters the following information for principals:

  •  Any offer of an interpreter (whether the individual accepts or rejects the offer)

  •  The use of an interpreter

  •  The interpreter’s name

  •  The interpreter’s relationship to the principle (if any) or professional affiliation

  •  The use of any type of communication aids (such as a communication board or pictures)

  •  The caseworker’s ability to communicate in the principal’s preferred language

  •  The reason an interpreter was not used (for example, the investigator is able to communicate with the principal in his or her preferred language)

The investigator ensures that collaterals with LEP or sensory impairments also receive appropriate interpreter services. The investigator documents the information listed above for only those collaterals who are offered interpreter or translator services.

1600 Cultural Competency in Investigations

APS Provider Investigations April 2017

To investigate effectively, the investigator must conduct investigations in a culturally competent manner, adapting his or her investigative approach to accommodate the interviewee’s needs within his or her cultural context.

Becoming culturally competent is a developmental process. In addition to attending mandated cultural diversity training, investigators should, in consultation with their supervisors, analyze their own cultural competence and develop the skills needed to adequately investigate in diverse cultural contexts. The following activities may also be used to develop cultural competency:

  •  Receiving training that targets specific cultural groups

  •  Attending cultural events

  •  Consulting with professionals who are experts in serving specific cultural groups

  •  Studying specific cultural groups’ characteristics and histories

  •  Becoming familiar with literature, art, and music by and about specific cultural groups

  •  Identifying and interacting with persons from specific cultural groups who are recognized and trusted within those cultural groups, including social and political leaders, respected elders, and law enforcement officers.

Guidelines for Interviews

The following are basic guidelines for conducting an investigation in a culturally competent manner. Some of the guidelines may also apply to interviews that are not cross-cultural.

  •  The investigator recognizes that mental health or intellectual disabilities, however severe, are not reasons to disregard the need for conducting culturally competent investigations. Investigators must adapt interview methods with consideration for disability within the context of the interviewee’s culture.

  •  The investigator addresses the interviewee using formal titles (for example, Mr., Mrs., Ms.) unless the interviewee directs otherwise.

  •  The investigator’s demeanor is formal and respectful of cultural customs, avoiding conversation that suggests familiarity and lack of respect.

  •  The investigator is aware of his or her limitations regarding cultural characteristics. Lack of knowledge, stereotyping, prejudices, and other incorrect beliefs about an interviewee’s culture can negatively influence an investigator’s judgment and compromise the integrity of an investigation.

  •  When the interviewee presents information that the investigator does not understand due to a cultural misunderstanding, the investigator asks the person to clarify that information. The investigator may need to consult with an expert or cultural guide when cultural issues need clarification that the interviewee cannot provide.

  •  The investigator communicates clearly, avoiding idioms, slang, acronyms, and professional jargon.

  •  The investigator is alert for nonverbal signs of discomfort or embarrassment and redirects the interview as appropriate.

  •  The investigator is alert for the possibility that interviewees who attempt to communicate in English may require accommodation. If interviewees whose first language is not English provide little information during the interview process, the investigator evaluates their proficiency in English. This can be accomplished by asking open-ended questions rather than questions to which the answer is “yes” or “no.” If interviewees cannot appropriately respond to the open-ended questions, the investigator takes steps to accommodate their limited English proficiency (see 1500 Communication Assistance). Whenever possible, the investigator offers clients the option of communicating in their preferred language, even when they can communicate adequately in English.

  •  The investigator keeps in mind that his or her knowledge of and experience with a specific cultural group may not be applicable to all interviewees from that group. Each interviewee’s personality traits and personal history are as important as his or her culture and must be taken into account by the investigator.

  •  The investigator keeps in mind that interviewees may be distrustful because of the investigator’s culture. This distrust may be a result of negative personal experiences or may reflect attitudes held in common by members of the interviewee’s culture. For example, white people may be distrusted by many African Americans because of their historical experience of slavery and discrimination.

  •  The investigator does not presume that he or she has earned an interviewee’s trust and does not let the interviewee’s lack of trust stand in the way of thorough investigation. To build rapport with interviewees when cultural barriers exist, the investigator may have to conduct interviews at a slower pace and engage in polite conversation before addressing investigation issues. It may also be necessary to consult with a cultural guide or professional from the interviewee’s community to clarify confusing information, determine how to proceed, or gain access to needed information or persons.

  •  The investigator keeps in mind that certain groups have had negative experiences with government agencies and fear them. When interviewing from such groups, the investigator is particularly careful to be empathetic and respectful, emphasizing the helping role of APS rather than its authority as a government agency.

  •  The investigator accepts the interviewee’s perspective and avoids challenging the customs specific to his or her culture (for example, the use of a curandero, a type of faith healer, among some Hispanics).

  •  The investigator contacts his or her supervisor and experts as needed when a problem arises while conducting a cross-cultural interview.

These guidelines also apply to interviews involving alleged perpetrators and collaterals.

1700 Public Awareness

APS Provider Investigations April 2017

Public awareness helps ensure prompt and accurate reporting of suspected abuse, neglect, or exploitation of individuals receiving services. APS employees participate in activities to inform the general public, DADS, DSHS, and providers of:

  •  abuse, neglect, and exploitation of individuals receiving services;

  •  the responsibility to report suspected incidents of abuse, neglect, or exploitation to DFPS; and

  •  the responsibility of DFPS to investigate allegations of abuse, neglect, and exploitation of individuals receiving services.

 

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