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6000 Legal Actions and Legal Involvement

6100 General Procedures

APS Provider Investigations November 2017

In some cases, APS investigations of providers become involved in grievance proceedings or litigation, such as criminal prosecution or civil suits. When the investigator learns that a case will be involved in litigation or when the investigator is asked to testify in a grievance hearing or legal proceeding, the following general procedures must be followed:

1.   The investigator immediately notifies his or her supervisor.

2.   The supervisor or the investigator consults with the HHSC regional attorney, if legal representation or consultation is needed.

3.   The supervisor or the investigator, with supervisory approval, notifies the district director or the district director’s designee.

If the investigator is served with a subpoena, he or she contacts the HHSC regional attorney.

6110 Grievance Hearings

APS Provider Investigations November 2017

All HHSC employees who disagree with employer actions based on APS PI findings (for example, leave without pay, letters of reprimand, or termination) may file a grievance. A grievance that is not resolved by the employer agency is referred to the HHSC Appeals Division for a grievance hearing. At the grievance hearing, a presiding HHSC Appeals Division administrative law judge may uphold all or part of the findings of fact, or may dismiss all of the findings and reinstate the employee to original status.

HHSC notifies APS PI of outcomes of grievance hearings when related to an APS PI investigation. If an investigation finding is overturned, a program specialist creates an Administrative Review of Investigation (ARI) stage in IMPACT to change the finding. The final orders for all grievance hearings related to APS PI are then forwarded to the program administrator for review.

If the employee has been referred to the Employee Misconduct Registry (EMR), the grievance hearing will not take place until the EMR proceedings have been completed.

See:

8000 The Employee Misconduct Registry

HHS Human Resources Manual, Chapter 13

6120 HHSC Regional Attorneys

APS Provider Investigations November 2017

The primary legal resource for the investigator is the HHSC regional attorney. The HHSC regional attorney is a consultant on legal procedures, courtroom protocol, and all matters involving interpretations and applications of state and federal laws, rules, and policies. The HHSC regional attorney also provides assistance in preparing legal documents and trains APS PI staff on relevant legal issues.

The investigator consults with the HHSC regional attorney in any matter requiring legal representation or having legal implications for APS PI. In proceedings that do not require legal representation or have legal implications for APS PI, the investigator consults with the HHSC regional attorney as needed.

6130 Entitlement and Redaction Specialists

APS Provider Investigations April 2017

Most APS records are confidential, and only specific people are entitled to obtain a copy. Even if release is authorized, parts of the record may still require redaction. Redaction is concealing or removing specific information.

The DFPS Records Management Group (RMG) is the authorized entity, with a few exceptions, that releases case records, redacted or not. Any request for a copy of a case record must be referred to RMG.

Exceptions to this include the routine release of the Provider Abuse and Neglect Report to:

  •  providers; and

  •  law enforcement (on open cases to which the investigator is assigned).

6200 Cooperation With Investigative Services

APS Provider Investigations April 2017

The head of a DSHS facility must designate a contact person to coordinate with APS investigators to ensure private interview space, telephones, and employees are available to the investigator. The head of the facility also requires staff to provide APS investigators with immediate access to records and keys necessary to carry out an investigation. If the investigator has difficulty gaining access to records or keys, he or she should contact the head of the facility for assistance.

Any DSHS facility employee or agent who fails to cooperate with an investigation is subject to disciplinary action. An employee or agent who makes a false statement of fact during an investigation is also subject to disciplinary action. If an employee refuses to cooperate or makes a false statement during an investigation, the investigator should inform the administrator.

25 TAC §417.508(c)

The director of a DADS state supported living center or the Rio Grande State Center’s ICF/IID must:

  •  cooperate with a DFPS investigator by preserving and safeguarding any evidence of alleged abuse, neglect, or exploitation, including taking precautionary measures to protect physical evidence from loss, destruction, or tampering; and

  •  ensure the availability of employees, records, keys, private interview space, and a private telephone upon request by the APS investigator.

40 TAC §3.304(d)

DADS may take disciplinary action, including termination, against an employee who makes a false statement of fact, refuses to cooperate, or destroys evidence during an investigation.

40 TAC §3.302(d)

Administrators and contractor CEOs of local authorities and community centers must:

  •  designate a contact staff person at each program and service delivery site to coordinate with the investigator to ensure availability and access to private interview space and telephones, employees, and individuals receiving services; and

  •  require employees to ensure investigators have immediate access to individuals receiving services, records, and other documents requested by the investigator.

An employee who makes a false statement of fact during an investigation is subject to disciplinary action or other appropriate action.

40 TAC §4.554(h)

Staff members, service providers, and volunteers of a DADS HCS or TxHmL program provider must cooperate with a DFPS investigation by:

  •  providing access to all HCS program service sites owned, operated, or controlled by the program provider;

  •  providing access to individuals and program provider personnel;

  •  providing access to records pertinent to the investigation; and

  •  preserving and protecting evidence in accordance with DFPS instructions.

40 TAC §9.178(l) and §9.580(g)

6300 Receiving Funds That Accompany a Subpoena

APS Provider Investigations November 2017

When APS PI staff receive a subpoena to testify in court, the subpoena may include cash or a check. Staff may not keep this money regardless of the amount. The APS PI staff person contacts the HHSC regional attorney.

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