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7000 Release of Information

7100 Confidentiality of Investigative Process and Report

APS Provider Investigations April 2017

The reports, records, and working papers used or developed in the investigation, including the Provider Abuse and Neglect Report, are confidential. These items may be disclosed only as provided in Section 48.101 of the Texas Human Resources Code, Section 261.201 of the Texas Family Code, DFPS’s rules in the Texas Administrative Code, and DFPS policy.

Although case information is confidential, APS is authorized by law to disclose information to certain organizations and individuals to protect victims of abuse, neglect, or exploitation from further harm.

Office of the Independent Ombudsman

The Office of the Independent Ombudsman obtains state supported living center (SSLC) and Rio Grande State Center case-related information directly from the state operated facility.

The DFPS investigator may discuss the investigation or answer questions from the independent ombudsman or any assistant independent ombudsman after the completion of the investigation.

7110 Confidentiality of Reporter and HIV/AIDS Information

APS Provider Investigations April 2017

E-Reports

When Statewide Intake (SWI) receives an e-report, the information documented by the reporter is not altered in any way. This includes when the reporter makes identifying statements within the body of the intake.

HIV/AIDS

SWI documents HIV/AIDS status in the narrative of the report and in the Special Handling Comments section of the intake or I&R.

Redacting Reporter or HIV/AIDS Information From the Case Record

All reporter information or the HIV/AIDS status of an individual must remain confidential. This information must be redacted or concealed from the case record before releasing the record to any individual or entity outside of DFPS. An APS case record includes the intake, external documentation such as medical and financial records, exhibits, written statements, and the investigative report. For HIV/AIDS information, this includes records being released to law enforcement, unless the case information is relevant to the referral to law enforcement.

If a case record needs to be redacted before it is sent to an entity other than a provider, the APS supervisor or the supervisor’s designee requests redaction through the OneCase system.

The APS supervisor or designee may need to conceal the reporter or HIV/AIDS status information from case records before releasing to a provider. To do so, the APS supervisor or designee conceals the information from the record manually by:

  •  printing the case record;

  •  using a marker to black out an individual’s HIV/AIDS status or reporter identifying information; and

  •  copying the concealed case record.

The investigator then mails a copy of the modified case record to the appropriate recipient.

Case record redaction does not change time frame requirements for releasing information.

See:

4123 Time Frames for Delivering the Investigation Report

7220 Release to Law Enforcement

7200 Release of the Provider Abuse and Neglect Report

APS Provider Investigations April 2017

Upon completion of an investigation, the investigator prints and forwards a copy of the Provider Abuse and Neglect Report with reporter information concealed to the provider according to 4123 Time Frames for Delivering the Investigation Report.

Video Surveillance

Video surveillance footage obtained from a provider is not considered part of the Provider Abuse and Neglect Report and may not be released without consulting with the regional APS attorney or Office of General Counsel. If law enforcement, the HHSC Office of Inspector General, or Disability Rights Texas requests to view or have a copy of a video, DFPS refers the requestor to DADS or DSHS.

DFPS refers individuals receiving services, legal guardians, courts, and other individuals who may be entitled to a copy of an investigation to DADS, DSHS, or the appropriate provider for access to the video surveillance.

DFPS Rules, 40 TAC §711.603

Digital Recording of a Forensic Interview at Children Advocacy Centers (CAC)

Those persons entitled to confidential case records may have access to view a recording of a forensic interview at a CAC but are not allowed a copy. Those who are allowed access to view a CAC recording must do so in a DFPS office. If a viewing is requested, video or audio recording equipment are prohibited in the viewing area. This includes cell phones, tablets (other than DFPS’s equipment), or other video or audio recording devices.

Texas Family Code §264.408

DFPS Rules, 40 TAC §700.203

7210 Release of Provider Abuse and Neglect Report to Providers

APS Provider Investigations April 2017

For instructions on the release of the Provider Abuse and Neglect Report, see:

7211 Release of the Provider Abuse and Neglect Report to Facilities, Community Centers, Local Authorities, HCS, TxHmL and ICF/IID Programs

7212 Release of Information to Community Provider and Appropriate HHS agency (Excluding HCS and TxHmL)

7211 Release of the Provider Abuse and Neglect Report to Facilities, Community Centers, Local Authorities, HCS, TxHmL, and ICF/IID Programs

APS Provider Investigations April 2017

Facilities

If the alleged perpetrator is an employee, the investigator or designee provides a copy of the Provider Abuse and Neglect Report to the ...

If the alleged perpetrator is an administrator or CEO, the investigator or designee provides a copy of the Provider Abuse and Neglect Report to the …

State hospital and Rio Grande State Center mental health services

administrator

assistant commissioner for Mental Health Substance Abuse Services at DSHS.

SSLC and Rio Grande State Center’s ICF/IID

  •  administrator; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

  •  assistant commissioner of state supported living centers at DADS; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

Community center or local authority

administrator

  •  chair of the community center board of trustees or local authority board of directors;

  •  assistant commissioner for Mental Health and Substance Abuse Services at DSHS; and

  •  assistant commissioner for Access & Intake at DADS.

Contractor of community center, local authority, or licensed ICF/IID

  •  administrator; and

  •  contractor chief executive officer (CEO).

  •  administrator of the state facility or community center, local authority, or licensed ICF/IDD.

Independent school district (ISD) through contract with a facility or community center

  •  superintendent of ISD; and

  •  administrator.

  •  superintendent of ISD; and

  •  administrator.

HCS and TxHmL providers not operated by community center or local mental health authority

  •  administrator; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

  •  designee of HCS and TxHmL; and

  •  DADS Waiver Survey and Certification: (email to DADS WSC ANE DFPS Reports)

If both the administrator and designee are alleged perpetrators, contact the administrator to obtain an alternate designee.

HCS and TxHmL providers operated by community center or mental health authority

  •  administrator of the community center or local authority; and

  •  DADS Waiver Survey and Certification: (email to DADS WSC ANE DFPS Reports)

If the administrator and designee of the HCS are the alleged perpetrators, only DADS Waiver Survey and Certification receives a copy.

  •  chair of the community center board of trustees or local authority board of directors;

  •  assistant commissioner for Mental Health and Substance Abuse Services at DSHS;

  •  assistant commissioner for Access & Intake at DADS; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

Public ICF/IID provider operated by a community center or local authority

  •  administrator of the  community center or local authority; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

  •  chair of the community center board of trustees or local authority board of directors;

  •  assistant commissioner for Mental Health and Substance Abuse Services at DSHS; and

  •  assistant commissioner for Access & Intake at DADS.

Licensed ICF/IID provider

  •  administrator or designee of the licensed ICF/IID; and

  •  DADS Waiver Survey and Certification (email to DADS WSC ANE DFPS Reports)

  •  designee of the licensed ICF/IID; and

  •  DADS Waiver Survey and Certification  (email to DADS WSC ANE DFPS Reports)

If both the administrator and designee are alleged perpetrators, contact the administrator to obtain an alternate designee.

7212 Release of Information to Community Provider and Appropriate HHS Agency (Excluding HCS and TxHmL)

APS Provider Investigations April 2017

When the direct provider (alleged perpetrator) is an employee, officer, agent, contractor, or subcontractor of a ...

The investigator or designee provides a copy of the Provider Abuse and Neglect Report to …

 

service provider

the service provider and the appropriate HHS agency.

limited service provider

the limited service provider, the service provider, and the appropriate HHS agency

managed care organization (MCO)

the MCO and HHSC Reports mailbox

Consumer Directed Services (CDS) employer (individual receiving services or the legally authorized representative )

CDS employer; and the appropriate person from the following:

  •  Service coordinator for individuals receiving services from an MCO;

  •  FMSA administrator or designee for fee-for-service programs; or

  •  DSHS case manager for the PCS program

YES Waiver

the DSHS YesWaiver maibox

1915C HCBS-AMH

the DSHS HCBS-AMH mailbox

Law enforcement or a prosecutor may request that DFPS delay the release of the investigative report to a provider or the appropriate licensing authority.

7213 Release of Information to State Supported Living Centers (SSLCs)

Occasionally individuals receiving services from an SSLC will go on leave to visit a provider (an HCS group home, for example) for the purpose of transitioning to the community. The SSLC is still responsible for the health and protection of individuals even though the individuals may be away from the facility.

The investigator follows policy 7223.1 Procedures for Release of Information to an SSLC when:

  •   an investigation is conducted involving an individual receiving services from a SSLC;

  •   the provider is located in a residential setting (such as an HCS group home); and

  •   the alleged perpetrator is not an SSLC employee.

7213.1 Procedures for Release of Information to an SSLC

Verbal Communication

The investigator verbally communicates with the SSLC administrator any concerns that may affect the health or welfare of the alleged victim.

Written Communication

The investigator provides the SSLC administrator with a Release of Findings letter by the next business day upon conclusion of the investigation.

7220 Release to Law Enforcement

APS Provider Investigations April 2017

If APS PI notifies law enforcement that an individual receiving services has been abused, neglected, or exploited in a manner that constitutes a criminal offense under any law, including §22.04 of the Texas Penal Code, the investigator:

  •   submits a copy of the Provider Abuse and Neglect Report to law enforcement;

  •   does not conceal the identity of the reporter; and

  •   submits external documents (documents external to the Provider Abuse and Neglect Report) upon request.

The investigative report is sent in all investigations that involve allegations that constitute a crime regardless of the finding by APS PI.

If the investigation becomes a full referral, the referral replaces the Provider Abuse and Neglect Report and is provided to law enforcement.

A Notification to Law Enforcement Agency of Abuse/Neglect Report form accompanies the report.

See 7110 Confidentiality of Reporter and HIV/AIDS Information.

IMPACT

The Notification to Law Enforcement Agency of Abuse/Neglect Report form is accessed in IMPACT through the Provider Investigation Conclusion page under the Forms drop-down box.

7230 Release to HHSC Office of Inspector General (OIG)

APS Provider Investigations April 2017

If APS PI notifies OIG  that an individual receiving services has been abused, neglected, or exploited in a manner that constitutes a criminal offense under any law, including §22.04 of the Texas Penal Code, the investigator:

  •  sends a copy of the Provider Abuse and Neglect Report to the OIG investigator assigned to the state-operated facility;

  •  does not conceal the identity of the reporter; and

  •  provides external documents (documents external to the Provider Abuse and Neglect Report) only on request.

If the investigation becomes a full referral, the referral replaces the Provider Abuse and Neglect Report and is provided to OIG.

The investigator:

  •  sends a confirmation email to the director of internal affairs at OIG (the OIG SSLC SH intakes mailbox); and

  •  states in the email that the case has been completed and the Provider Abuse and Neglect Report or full referral has been submitted.

The investigator sends a copy of the Provider Abuse and Neglect Report to OIG for all investigations that involve allegations that may constitute a crime, regardless of the finding by APS PI.

The form Notification to OIG of Abuse/Neglect Report accompanies the report.

See 3122 Notification to HHSC Office of Inspector General (OIG).

IMPACT

The investigator obtains the form Notification to OIG of Abuse/Neglect Report in the IMPACT system by:

  •  navigating to the Facility Investigation Conclusion page; and

  •  selecting Forms from the drop-down menu.

7240 Release to the Office of the Attorney General of Texas (OAG)

APS Provider Investigations April 2017

By law, APS can share information or evidence with OAG, including evidence that identifies individuals receiving services or reporters.

When OAG informs APS that OAG is investigating allegations that may constitute Medicaid fraud, a Provider Abuse and Neglect Report is sent by secure email, regardless of the finding by APS. The exhibits are provided upon request.

See OAG’s website for information on Medicaid fraud.

7250 Release of Investigation Records Involving Confirmed Non-Clinical Abuse, Neglect, or Exploitation to Professional Boards (Excluding State Hospitals and State Supported Living Centers)

APS Provider Investigations April 2017

In confirmed non-clinical abuse, neglect, or exploitation allegations involving a licensed professional, except for confirmations involving state hospitals or state supported living centers, the investigator submits to the APS PI mailbox the following:

  •  Case ID

  •  Brief description of the case

  •  Electronic copy of the investigative report and exhibits

APS state office forwards a copy of the report to the appropriate professional licensing board.

DFPS Rules, 40 TAC §711.605

7260 Release to Other Employers

APS Provider Investigations April 2017

If a designated perpetrator works for another facility or provider, the investigator may release the confirmed findings of the investigation to the other employer after completing the due process outlined below. APS PI does not release findings of Inconclusive or Unconfirmed to the other employer.

This section applies only when APS PI wants to release a finding of Confirmed to the designated perpetrator’s other employer when the designated perpetrator is not:

  •  the perpetrator in a school investigation; or

  •  eligible for inclusion in the Employee Misconduct Registry (EMR).

The designated perpetrator must be provided with a complete due process hearing before APS PI releases the investigation findings to the other employer, except in emergency situations described below.

For allegations that rise to the level of reportable conduct, the EMR hearing is the designated perpetrator’s due process.

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

See:

7265.3 Emergency Release of Findings

8000 Employee Misconduct Registry

8400 Notifying Subsequent Employers of Findings

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 Director of Provider Investigations (district director) or the director’s designee. The administrative review is required before offering a release hearing to the designated perpetrator. See 7262 Administrative Review.

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. If the judge upholds the finding on the allegation of abuse, neglect, or exploitation, APS PI releases the findings to the other employer. See 7264.2 Release Hearing and Subsequent Activities.

Emergency Release of Findings Before Due Process

If DFPS determines a delay in releasing the findings will place a person age 65 or older or an adult with a disability in a state of or at risk of serious harm, DFPS may release the findings before offering due process to the designated perpetrator.

See:

7265.3 Emergency Release of Findings

7265.31 Notice of Emergency Release of Findings to the Designated Perpetrator

7261 Sending Notice of Intent to Release Findings

APS Provider Investigations April 2017

DFPS may release findings of Confirmed to the designated perpetrator’s other employer as noted in 40 TAC §705.4103(a). These requirements have been incorporated in the form letter titled Notification of Intent to Release.

If APS PI is not going to release the findings of Confirmed to a designated perpetrator’s other employer, due process is not offered.

Criteria for Notification of Findings

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

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

  •  the findings will be released outside DFPS to an entity that allows the perpetrator to have access to persons who are age 65 or older, adults with disabilities, or children; and

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

DFPS Rules, 40 TAC §705.4105(a)

The investigator 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

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

See:

7260 Release to Other Employers

7265.3 Emergency Release of Findings

7265.31 Notice of Emergency Release of Findings to the Designated Perpetrator

7261.1 Timely Request for an Administrative Review

APS Provider Investigations April 2017

The request for an administrative review is addressed to the district director or the director’s designee.

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

After DFPS mails the official notice, district personnel must wait at least 23 calendar days to receive a request. District personnel may use discretion and wait up to 30 calendar days. This waiting period ensures 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 for an administrative review is received within the required time frame, the reviewer sends the perpetrator an Appointment Letter for Administrative Review outlining the date and time the review is to be held.

Request for an Administrative Review Is Not Received or Made Timely

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

If DFPS made an emergency release and did not receive a request for an administrative review, the investigator sends the perpetrator a notice confirming the emergency release.

See:

7265.2 Release of Findings

7265.3 Emergency Release of Findings

7261.2 Request for Records for an Administrative Review

APS Provider Investigations April 2017

If the request for an administrative review indicates the perpetrator wants a copy of the case record, the investigator, or the investigator’s designee, uses OneCase to request a redacted copy of the case record from RMG. RMG delivers the redacted case record to the APS requestor within 45 business days from the date of the initial request. APS then forwards the redacted case record to the designated perpetrator via certified mail.

7262 Administrative Review

APS Provider Investigations April 2017

The district director or the director’s designee conducts the administrative review.

The reviewer must not have directly supervised the investigator or have been involved in the investigation. The review is conducted within 30 calendar days from the date DFPS received the request from the perpetrator, 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 exploitation are pending at the time or begin after the review was 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 does not waive the hearing or reverse the finding.

See also 7261.1 Timely Request for an Administrative Review.

7263 Procedure for Administrative Review

APS Provider Investigations April 2017

At the administrative review, the perpetrator may:

  •  appear in person and 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 §705.4107(a)

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 §705.4107(b)

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 findings based on the same requirements and criteria that investigators and supervisors use to conduct investigations and reach conclusions;

  •  creates an Administrative Review of Investigations (ARI) stage in the IMPACT case management system by selecting the closed investigation stage 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 Administrative Review of Investigation (ARI) stage; and

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

Steps for creating and completing an Administrative Review of Investigation stage in IMPACT can be found in IMPACT FYI.

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

In the administrative review process, the reviewer and the district director or the director’s designee take the following steps:

Administrative review findings

Was an emergency release made?

Then the APS Director of Provider Investigations or the designee sends:

Was a release hearing requested within 20 calendar days?

Sustained

No

the Administrative Review Findings form and Request for a Release Hearing form to the alleged perpetrator.

  •  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 investigator.

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

  •  No – The reviewer sends the Release of Findings to the employer, licensing board, and so on.

Sustained

Yes

the Administrative Review Findings form and Request for a Release Hearing form to the alleged perpetrator.

  •  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 – All others notified during emergency release (employer, licensing board, and so on), and the Final Letter for Due Process was sent.

Altered or reversed

No

the Administrative Review Findings form to the alleged perpetrator.

N/A

Altered or reversed

Yes

the Administrative Review Findings form to the alleged perpetrator.

All others notified during emergency release (employer, licensing board, and so on) – Final Letter for Due Process was sent.

N/A

7264 Conducting Release Hearings

7264.1 Receipt or Non-Receipt of Request for a Release Hearing

APS Provider Investigations April 2017

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 DFPS mails the official notice or the right to a release hearing is forfeited.

If the perpetrator does not request a hearing within 20 calendar days after DFPS mails the official notice, the Director of Provider Investigations or the director’s designee releases the findings as outlined in 7265.2 Release of Findings. After DFPS mails the official notice, district employees may use discretion and wait 30 calendar days to receive a request. This waiting period ensures 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.

See IMPACT FYI resources:

Administrative Review and Appeal Page

Create an Administrative Review Stage

Record Administrative Review and Appeal (APS/AFC)

7264.2 Release Hearing and Subsequent Activities

APS Provider Investigations November 2017

If designated perpetrator has access to the children or vulnerable adults and poses a substantial risk, APS PI may find it necessary to release certain information to a party outside APS PI. This might include employers, licensing boards, or other entities who have control over the designated perpetrator’s access. Except in emergency situations (see 7265.3 Emergency Release of Findings) staff must use the release hearing process before releasing information.

A due process hearing is an administrative proceeding to give a designated perpetrator an opportunity to appeal an abuse or neglect finding made by APS PI. As an impartial agency, 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 APS PI and seek a hearing date from SOAH. The attorney has authority over the manner and substance of the presentation of the APS PI case.

The hearing is held in the district 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.

If the judge sustains the APS PI findings, the district director or the director’s designee, in coordination with the HHSC regional attorney, approves the manner and content of the release of data.

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

The district director or the designee documents the outcome in the Administrative Review of Investigation (ARI) stage in IMPACT according to administrative review procedures. See 7262 Administrative Review.

See IMPACT FYI resources:

FYI Administrative Review and Appeal Page

FYI Create an Administrative Review Stage

FYI Record Administrative Review and Appeal (APS/AFC)

7265 Notification and Release of Findings

7265.1 Notification of Decision

APS Provider Investigations November 2017

The administrative law judge sends a copy of the SOAH hearing final decision to the perpetrator or his or her representative and to the attorney representing APS, who sends the finding to the director of provider investigations or the director’s designee. The director or the 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;

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

  •   files the copy of the decision in the paper case file on the left side of the folder.

7265.2 Release of Findings

APS Provider Investigations November 2017

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

  •   the perpetrator’s employer; or

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

The investigator makes notification by sending a Release of Findings notification letter to the perpetrator’s employer or other entities.

7265.3 Emergency Release of Findings

APS Provider Investigations November 2017

APS PI does not usually release abuse, neglect, or exploitation information to a perpetrator’s new employer or other entity before the judge’s ruling in the release hearing. However, APS PI may release the information if APS PI determines that a delay in release would create an emergency because the perpetrator will have continuing access to vulnerable adults or children. The investigator consults with the HHSC regional attorney to determine whether an emergency release is appropriate.

If an emergency release is necessary, APS PI notifies the employer or other person allowing the perpetrator access to vulnerable adults or children of the findings, by sending an Emergency Release of Finding letter.

The letter to the new employer or other entity outlines:

  •   APS PI’s decision that an emergency exists and that immediate intervention is necessary to prevent or remedy serious harm to a person who is age 65 or older or an adult with 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.

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. APS PI notifies the designated perpetrator by sending an Emergency Release Notification letter.

The letter to the designated perpetrator outlines:

  •   APS PI’s decision an emergency exists and release notification to other employers or entities;

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

  •   instructions on how to appeal the finding.

Once due process is complete, APS PI sends the Final Letter of Due Process to theemployer or entity, which outlines:

  •   that due process has been offered or provided; and

  •   whether the findings have changed.

For instructions regarding an emergency release of findings involving an alleged perpetrator awaiting an EMR hearing, the investigator follows policy in 8400 Notifying Subsequent Employers of Findings.

7265.31 Notice of Emergency Release of Findings to the Designated Perpetrator

APS Provider Investigations April 2017

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

Emergency Release Notification

Request for an Administrative Review

See:

7261 Sending Notice of Intent to Release Findings

7265.2 Release of Findings

7270 Release of In-Home Investigations to Facility or Provider Agencies

APS Provider Investigations April 2017

In some cases, an APS In-Home specialist may inadvertently conduct an investigation that, because of the perpetrator and location of the incident, falls under the jurisdiction of APS PI.

Since the investigation of such cases falls under the jurisdiction of Human Resources Code §48.252, the provider is entitled to receive a de-identified copy of the investigative report.

The APS specialist provides a de-identified copy of the In-Home report to the Provider Investigations supervisor.

The APS PI supervisor or the supervisor’s designee follows policy in 7210 Release of Provider Abuse and Neglect Report to Providers.

7300 Notifications

7310 Notifying the Reporter

APS Provider Investigations November 2017

The investigator notifies the reporter within five business days of completing the investigation. The investigator or the investigator’s designee sends the Notification to Reporter letter or Notification That APS Will Not Investigate letter to the reporter, stating:

  •   the outcome of the investigation; and

  •   the appeal process.

7320 Notifying the Victim and Perpetrator

APS Provider Investigations November 2017

In community provider cases, the investigator notifies the following persons about the outcome of an investigation:

  •   the victim; and

  •   the alleged or designated perpetrator.

The investigator notifies the victim within one business day of completing the investigation. The investigator or the investigator’s designee completes the Letter to the Victim and sends it to the victim, stating:

  •   the outcome of the investigation; and

  •   the appeal process.

The investigator notifies the perpetrator within one business day of completing the investigation. The investigator or the investigator’s designee completes the Letter to the Perpetrator and sends it to the perpetrator, stating the outcome of the investigation.

7400 Request for an Appeal of Findings

APS Provider Investigations April 2017

An appeal is a challenge of the findings of the investigation by a qualified party, including:

  •  the administrator of the service provider or the provider’s attorney;

  •  the CDS employer or the employer’s legal representative;

  •  the reporter;

  •  the victim, his or her legal guardian, or his or her parent (if the victim or alleged victim is a child); or

  •  Disability Rights Texas, only if Disability Rights Texas represents the victim or alleged victim or is authorized by law to represent the victim or alleged victim.

The following restrictions apply to an appeal of findings:

  •  An alleged or designated perpetrator may not request an appeal even if he or she is otherwise a qualified party.

  •  An alleged or designated perpetrator may not coerce a CDS employer into requesting an appeal on his or her behalf.

  •  An appeal may not challenge the determination of whether a confirmation rises to the level of reportable conduct for purposes of the Employee Misconduct Registry (EMR).

Appeals and EMR

An appeal is not affected by a determination that the confirmed abuse, neglect, or exploitation may rise to the level of reportable conduct. The designated perpetrator will not receive notice about his or her right to request an EMR hearing until the time frames for all appeals have expired, or the second appeal is completed and a confirmed finding that rises to the level of reportable conduct is upheld.

Levels of Appeal

The first level of appeal is conducted by the Director of Provider Investigations (district director) or the director’s designee, or a reviewer designated by the assistant commissioner of APS.

If a qualified party disagrees with the decision of the first appeal, the qualified party may appeal the decision. The Assistant Commissioner of APS designates a reviewer to conduct the second appeal. The determination resulting from the second appeal is final and cannot be appealed by any qualified party, except Disability Rights Texas.

Process of Requesting an Appeal

To request an appeal, the qualified party must complete either Form 2324 First Level Appeal of Provider Investigation Finding or Form 2349 Second Level Appeal of a Provider Investigation Finding, as appropriate to the level of appeal. The qualified party either emails the completed form to the APS Provider Appeals mailbox or sends it via postal mail to:

APS Provider appeals

Adult Protective Services Division

Department of Family and Protective Services

PO Box 149030 /E-561

Austin, Texas 78714-9030.

If the administrator of the provider is requesting an appeal, in addition to sending the completed First Level Appeal of Provider Investigation Finding form or Second Level Appeal of a Provider Investigation Finding form and investigative report, the administrator must send any applicable additional external evidence such as video to the postal mail address above.

The victim, alleged victim, legal guardian, parent (if the victim or alleged victim is a child), and reporter may also request an appeal by calling DFPS toll-free at 1-888-778-4766.

Timelines for Requesting an Appeal

The following may request an appeal no later than the 60th calendar day following the date the investigative report was signed and dated by the investigator:

  •   Disability Rights Texas

  •   Reporters

  •   Alleged victims

  •   Legal guardians of an alleged victim.

Providers may request an appeal no later than the 30th calendar day following the date the investigative report was signed and dated by the investigator.

A qualified party may appeal the first level decision within 30 calendar days following the date the appeal decision letter is signed.

DFPS may accept a request for a first or second level appeal after the deadline for good cause as determined by DFPS.

DFPS Rules, 40 TAC §711.915

Process and Timing of Appeals

A first level appeal is conducted by the Director of Provider Investigations (district director) or the director’s designee, or a reviewer designated by the Assistant Commissioner of APS. The reviewer:

  •  analyzes the investigative report and the methodology used to conduct the investigation and makes a decision to sustain, alter, or reverse the original finding;

  •  completes the review within 14 calendar days after receipt of the request; and

  •  notifies the appeal requestor and, as appropriate, the service provider, victim, and reporter, if the finding changed.

The Assistant Commissioner of APS designates a reviewer to conduct a second level appeal.

If the administrator of a state-operated facility disagrees with the appeal decision, he or she may contest the decision.

DFPS Rules, 40 TAC §711.913

DFPS may designate a person to conduct a review of the investigation records or reopen an investigation to collect additional evidence. If a review of the records and any additional investigating results in a change of the finding, DFPS will notify the appropriate parties in writing, including all those that received the original report.

DFPS Rules, 40 TAC §§711.901–915

The administrator or contractor chief executive officer (CEO) cannot change a finding of Confirmed to a finding of Unconfirmed; however, he or she may:

  •  make a more incriminating determination than the one determined by DFPS;

  •  confirm a finding of Unconfirmed or Inconclusive by DFPS; or

  •  request an appeal of the findings.

An administrator or contractor CEO who is the alleged perpetrator is not eligible to request an appeal of the finding. In this case, the administrator’s designee is allowed to request an appeal of the finding.

7410 Appeal Requiring Additional Investigation

APS Provider Investigations April 2017

During the appeal process, the district director may determine an appeal is premature because the investigation is incomplete due to missing information or evidence. In this situation, the director:

  •   informs district management of the incomplete investigation;

  •   requests the district complete and document additional investigation; and

  •   sends a letter to the requester to inform him or her that:

  •   the investigation has been referred back to the district office for further investigation; and

  •   the district director will notify the requester of the outcome.

If the district director requests that the district conduct additional investigation as a result of an appeal, the provider administrator or contractor CEO may request an appeal of the revised findings.

DFPS Rules, 40 TAC §711.1011.

The APS program administrator or the administrator’s designee follows the steps outlined below to complete additional investigation.

1.   The APS program administrator or designee opens the investigation stage in IMPACT to enter additional evidence. If the investigation stage has been closed, he or she requests a data correction to reopen the stage so the additional investigation can be entered. Information about IMPACT data corrections can be found on the Technology Assistance page on the DFPS intranet.

      A designee fills out section 1 (requester information) and section 2 (stage reopen only) in IMPACT and then submits the form. Contact the Help Desk at 1-877-642-4777 regarding questions about filling out the form.

2.   Once the investigation stage is open, the additional investigation is entered in IMPACT. To document the additional investigation, the APS program administrator or designee:

  •  adds a new Contact/Summary Type on the Contact Detail page;

  •  selects Request for Review from the Type drop-down list;

  •  selects Methodology Review from the Purpose drop-down list on the Contact Detail page;

  •  enters new contacts or documentary evidence by selecting the appropriate contact type on the Contact Detail page;

  •  if necessary:

  •  selects the contact type External Documentation List and adds new exhibits, and

  •  selects the new disposition on the Provider Allegation Detail page, if the finding is changed;

  •  retrieves the original Provider Closing from the Contact Search List;

  •  modifies the analysis on the Provider Closing based on new evidence collected; and

  •  launches the Reviewed Provider Abuse/Neglect Report from the Forms and Reports drop-down list on the Provider Investigation Conclusion page.

3.   The APS program administrator or designee includes a statement in the Administrative/Procedural Note of the final revised report that an additional investigation was completed and the revised report replaces the original one submitted to the administrator or contractor CEO.

4.   The APS program administrator or designee approves the revised investigation in IMPACT.

5.   The APS program administrator or designee submits the reviewed investigative report to the provider and all parties that received the original report, including a revised DADS AN-1-A, as applicable.

Once the additional investigation activities are completed, the district director sends an appeal decision letter to the requester. The letter:

  •   outlines the outcome of the additional investigation;

  •   notifies the requester that if he or she does not agree with the findings, a second appeal may be requested within 30 calendar days of the date of the revised report; and

  •   advises the requestor that a copy of the revised investigative report may be requested from the provider administrator or contractor CEO, if the requestor is the victim or victim’s legal guardian.

7411 Commissioner to Commissioner Review

APS Provider Investigations April 2017

If the administrator of a state-operated facility disagrees with the final determination by the reviewer designated by the Assistant Commissioner of APS, he or she may appeal to the commissioner of DADS or DSHS, as appropriate.

If the DADS or DSHS commissioner agrees with the APS state office determination, the process concludes.

If the DADS or DSHS commissioner disagrees with the APS state office determination, the case is forwarded to the commissioner of DFPS for a final decision.

This additional review is not available for any other providers.

7420 Request for a Comparison Review Based on OIG Findings

APS Provider Investigations April 2017

When both DFPS and the HHSC Office of Inspector General (OIG) investigate the same incident, separate findings are made by each. DFPS and OIG investigate for different purposes under different laws, time frames, and standards of evidence.

DFPS determines whether a preponderance of the evidence exists to support a finding that abuse, neglect, or exploitation occurred under the definitions in rule. OIG determines whether there is sufficient evidence to show that the incident constitutes a crime that might be prosecuted. This means that different conclusions concerning the same allegations are not unexpected. However, in some cases, DFPS may decide a comparison review between the OIG investigation and the DFPS investigation is warranted.

When DFPS receives a request for a comparison review, the following actions are taken:

1.   DFPS state office requests the OIG report from OIG state office and sends a copy of the report to the district program administrator.

2.   The program administrator reads and compares the OIG and DFPS investigative reports to determine whether evidence collected in the OIG investigation would change the findings of the DFPS investigation.

3.   District management decides whether the DFPS case needs to be reopened or the current DFPS finding is appropriate.

If the DFPS Case Does Not Need to Be Reopened

If the DFPS case does not need to be reopened, the program administrator:

  •  documents the decision in the IMPACT system under a Closed Stage Addendum; and

  •  notifies by email DFPS state office about the outcome of the comparison review.

If the DFPS Case Must Be Reopened

If the program administrator determines that evidence uncovered by OIG would impact the findings of the DFPS investigation, the program administrator:

  •  completes additional investigation;

  •  documents the additional investigation in IMPACT; and

  •  emails the results of the comparison review to DFPS state office.

The administrator or contractor CEO may request an appeal on the revised report.

DFPS Rules, 40 TAC §711.901

7500 Request for Records

7510 Individual Receiving Services or Representative

APS Provider Investigations April 2017

Victims or their representatives may request case records by filling out Form 4885-G Request for Case Records (English) or Form 4885-Gs (Spanish) and sending the completed form and all required documents to:

      Texas Department of Family and Protective Services
Attn: RMG (Y-937)
P.O. Box 149030
Austin, Texas, 78714-9030

If the person requesting records has questions about requesting case records or any other records issues, he or she can email the Records Management mailbox.

7520 Disability Rights Texas

APS Provider Investigations April 2017

If Disability Rights Texas (Formerly Advocacy, Inc.) requests a copy of an investigation, the investigator forwards the request immediately to the regional APS attorney. The investigator informs the attorney that the request is time sensitive and must be processed within 14 calendar days. Disability Rights Texas has the right to a copy of the complete case record with the reporter’s identity redacted, and a copy of all external documents. See 5300 Paper Case File for the contents of a case record.

Employees of Disability Rights Texas seeking a confidential case record may also request a copy by completing and submitting Form 4885-G Request for Case Records.

7530 Grievance Hearing Officers

APS Provider Investigations April 2017

If an employee of DADS or DSHS requests a grievance hearing for disciplinary action taken as a result of an APS investigation, the investigator provides a copy of the case record (without concealing the reporter’s identity) to the grievance hearing officer. See 5300 Paper Case File for the contents of a case record.

7600 Central Registry Searches for the Child Care Licensing (CCL) Division

APS Provider Investigations April 2017

CCL conducts central registry searches to determine if:

  •  any person at a licensed child care facility, registered family home, or listed family home has been designated as a perpetrator of abuse, neglect, or exploitation of a child; or

  •  any person seeking to foster or adopt a child through a licensed child placing agency has been designated as a perpetrator of abuse, neglect, or exploitation of a child.

CCL employees review APS PI investigations involving designated perpetrators to assess the potential risk to children and determine if the perpetrator will be allowed to remain at the child care facility or home. To use the finding to protect children in care, DFPS must offer the designated perpetrator due process through the Administrative Review of Investigative Findings and SOAH Release Hearing, which require that the finding be supported by preponderance of the evidence.

7610 Central Registry Match Procedures

APS Provider Investigations April 2017

If a match is found, CCL reviews the case in IMPACT. If all the necessary case materials are not in IMPACT, CCL requests the case file from the APS district director or the district director’s designee.

The district director or designee provides CCL with a copy of the case file according to the following procedures:

  •  For cases not in IMPACT, the district director or designee sends a copy of the case file within 10 calendar days from the day the request was received.

  •  If the case is archived, the district director or designee sends a copy of the case file within 30 calendar days from the day the request was received.

  •  If the person at the child care facility or home is on the registry but an archived case cannot be found in 60 days, the district director or designee changes the findings to Inconclusive, removing the person from the central registry.

7620 Licensing Division Actions

APS Provider Investigations April 2017

If Immediate Danger Exists

If CCL determines that the presence of the person listed on the central registry presents an immediate threat to the health and safety of a child, CCL will simultaneously offer a release hearing and release the information regarding the investigation to the child care facility or home. (See the Licensing Policy and Procedures Handbook, 5331 Acting on Abuse or Neglect Findings in a DFPS Central Registry Report.)

If No Immediate Danger Exists

If CCL determines that the presence of the person listed on the central registry does not present an immediate threat, CCL may request a desk review for preponderance of evidence from the APS district director, the district director’s designee, or another designated contact for CCL central registry matches.

If the desk review determines that the case does not present a preponderance of the evidence, the district director or designee changes the finding in IMPACT and notifies CCL, the designated perpetrator, and the facility or provider where the alleged abuse occurred.

If the desk review determines that the case does present a preponderance of the evidence, the district director or designee:

  •  notifies the designated perpetrator via certified mail, return receipt requested, of the intent to release the findings. This notification must include the Notification of Intent to Release and Form 4885-G Request for Case Records;

  •  sends CCL the result of the desk review, a copy of the Notification of Intent to Release, and the case file (if not previously provided);

  •  conducts an administrative review, if requested, within 30 calendar days from the date the request from the perpetrator is received; and

  •  notifies CCL of the results of the administrative review.

The district director or designee completes the steps listed above within 60 calendar days of the request for the desk review.

7630 Release Hearings

APS Provider Investigations April 2017

If the finding is upheld, CCL forwards the case file and related documents to a CCL attorney. The CCL attorney reviews the file to assess whether or not the case should be referred to the State Office of Administrative Hearings (SOAH). If the CCL attorney determines that there is not a preponderance of the evidence and that the case should not be presented to SOAH, the appropriate CCL employees are notified. CCL and the APS district director or the district director’s designee determine whether to change the finding against the designated perpetrator or whether to conduct a release hearing. The APS district director or designee has the final decision.

If a release hearing is conducted, the APS district director or designee updates IMPACT to reflect the hearing outcome.

7700 Records Retention

APS Provider Investigations April 2017

All provider investigations are retained electronically for 20 years. The destruction date is automatically calculated by IMPACT. When the retention period elapses, DFPS permanently removes the electronic file from the IMPACT database and destroys any remaining external evidence in a manner that does not jeopardize confidentiality. APS follows Records Management Group policy and procedures as outlined in Ready, Set, Let Go and the DFPS Certified Records Retention Schedule.

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