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1340 Allegations That APS Investigates

APS IH / September 2012

An allegation is an assertion that an alleged victim is in a state of or at risk of harm due to abuse, neglect, or financial exploitation.

DFPS Rules, 40 TAC §705.1001(2)

APS investigates only the allegations that:

  •   meet the definitions of abuse, neglect, or financial exploitation in 40 Texas Administrative Code §705;

  •   indicate that the alleged perpetrator is still in a position to perpetrate abuse, neglect, or financial exploitation against the alleged victim; and

  •   indicate that the alleged victim is being abused, neglected, or financially exploited, or is at risk of being abused, neglected, or financially exploited in the foreseeable future.

APS does not investigate allegations of suicide threat. These allegations are referred to the appropriate first responders.

See:

1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

2821.12 Administrative Closure

1341 Procedure for Assessing Allegations

APS IH / September 2012

There is no limit on the time within which an allegation of abuse, neglect, or financial exploitation may or may not be investigated. Whether an intake is appropriate for closure without a full investigation must be determined on a case-by-case basis.

The APS specialist:

  •   assesses the nature of the alleged maltreatment of the alleged victim;

  •   assesses the role of the alleged perpetrator, if applicable, to determine whether he or she meets the criteria as a:

  •   family member;

  •  caretaker;

  •   paid caretaker; or

  •   a person who has an ongoing relationship with the alleged victim; and

  •   determines whether the alleged perpetrator is still in a position to abuse, neglect, or financially exploit the alleged victim;

  •   determines whether the alleged victim is currently being abused, neglected, or financially exploited, or is at risk of abuse, neglect, or financial exploitation in the foreseeable future; and

  •   completes a thorough investigation to determine whether the alleged maltreatment meets the definition of abuse, neglect, or financial exploitation as defined in 40 Texas Administrative Code §705; or

  •   refers the situation, as appropriate, to the proper investigatory authority, if:

  •   the maltreatment does not meet the definition of abuse, neglect, or financial exploitation as defined in 40 Texas Administrative Code §705; or

  •   the alleged perpetrator is no longer in a position to abuse, neglect, or financially exploit the alleged victim; and

  •   the alleged victim is not being abused, neglected, or financially exploited and is not at risk of abuse, neglect, or financial exploitation in the foreseeable future.

If an alleged perpetrator is an employee of a home and community support services agency (HCSSA) and the allegation rises to the level of reportable conduct, an investigation is conducted regardless of whether the alleged perpetrator is or is not in a position to abuse, neglect, or financially exploit the alleged victim.

See:

1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

2270 Referring Cases to Law Enforcement

2821.12 Administrative Closure

1342 Neglect Allegations

APS IH / September 2012

Two types of neglect may be alleged, as explained below.

Self-Neglect

When the alleged perpetrator is an alleged victim/perpetrator, neglect is defined as the failure of one’s self to provide the protection, food, shelter, or care necessary to avoid emotional harm or physical injury.

Neglect by an Alleged Perpetrator (Caretaker or Paid Caretaker)

When an alleged perpetrator is a caretaker or paid caretaker, neglect is defined as:

  •   the failure to provide the protection, food, shelter, or care necessary to avoid emotional harm or physical injury; or

  •   a negligent act or omission that caused or may have caused emotional harm, physical injury, or death.

DFPS Rules, 40 TAC §705.1009

Negligence: The failure to exercise the care that a reasonably prudent person would exercise in like circumstances.

Emotional Harm: A highly unpleasant mental reaction with observable signs of distress, such as anguish, grief, fright, humiliation, or fury.

DFPS Rules, 40 TAC §705.1001(15)

Physical Injury: Physical pain, harm, illness, or any impairment of physical condition.

DFPS Rules, 40 TAC §705.1001(20)

Types of Neglect

Physical Neglect (PHNG): The failure to adequately provide goods and services to avoid emotional harm or physical injury.

Mental Health Neglect (MHNG): The failure to provide the mental health treatment necessary to avoid emotional harm or physical injury.

Medical Neglect (MDNG): The failure to adequately provide for or obtain the medical treatment necessary to avoid emotional harm or physical injury.

Examples of Neglect           

  •   Alleged victim is diabetic and has only enough insulin left for today.

  •   Alleged victim has severe decubiti that require a change in position every four hours. Caretaker fails to perform this task.

  •   Paid caretaker gives the alleged victim three sleeping pills instead of one, so that the caretaker can sleep.

  •   Caretaker fails to raise the alleged victim’s bedrails after a bed bath. Alleged victim falls and breaks her arm.

  •   Caretaker leaves alleged victim in the car at the grocery store while the caretaker shops. The outdoor temperature is 90 degrees.

1342.1 Procedure for Assessing Physical Neglect (PHNG) Allegations

APS IH / September 2012

Self-Neglect

The APS specialist assesses allegations of physical neglect to determine if the alleged victim:

  •   requires goods or services to avoid emotional harm or physical injury;

  •   failed to adequately provide the required goods or services.

Physical Neglect by an Alleged Perpetrator

When the alleged perpetrator is a caretaker or paid caretaker, the APS specialist assesses allegations of physical neglect by a caretaker or paid caretaker to determine if the alleged perpetrator:

  •   failed to provide goods or services necessary to avoid emotional harm or physical injury; or

  •   failed to act or acted negligently in a manner that caused or may have caused emotional harm, physical injury, or death.

For the definitions of emotional harm and physical injury, see 1342 Neglect Allegations.

See also 1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation.

1342.2 Procedure for Assessing Mental Health Neglect Allegations (MHNG)

APS IH / September 2012

Self-Neglect

APS only investigates allegations of mental health neglect when it results in other allegations of abuse, neglect, or financial exploitation.

Failure to participate in mental health treatment does not constitute self-neglect. The APS specialist refers these allegations by phone to local law enforcement, first responders, or other appropriate community resources.

See also 1311.2 Chronic Substance Abuse and APS Eligibility.

Mental Health Neglect by Alleged Perpetrator

When the alleged perpetrator is a caretaker or paid caretaker, the APS specialist assesses the allegations of mental health neglect to determine whether the alleged perpetrator:

  •   failed to ensure that the alleged victim received the appropriate mental health treatment (such as hospitalization, medication, or counseling, if available), to avoid emotional harm or physical injury; or

  •   failed to act or acted negligently in a manner that caused or may have caused emotional harm, physical injury or death to the alleged victim.

See:

1341 Procedure for Assessing Allegations

1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

1342.3 Procedure for Assessing Medical Neglect (MDNG) Allegations

APS IH / September 2012

Self-Neglect

The APS specialist assesses allegations of medical neglect to determine whether the alleged victim:

  •   requires necessary medical treatment such as medication, equipment, supplies, or care by a medical professional to avoid emotional harm or physical injury; and

  •   failed to obtain or adequately utilize necessary medical treatment.

Medical Neglect by an Alleged Perpetrator

When the alleged perpetrator is a caretaker or paid caretaker, the APS specialist assesses the allegations of medical neglect to determine whether the alleged perpetrator:

  •   failed to ensure that the alleged victim received appropriate medical treatment such as the medication, equipment, supplies, or care by a medical professional necessary to avoid emotional harm or physical injury; or

  •   failed to act or acted negligently in a manner that caused or may have caused emotional harm, physical injury or death to the alleged victim.

See also 1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation.

1343 Emotional or Verbal Abuse (EMAB) Allegations

APS IH / September 2012

Alleged Perpetrator Is Not a Paid Caretaker

When an alleged perpetrator is a caretaker, family member, or other individual who has an ongoing relationship with the alleged victim, emotional or verbal abuse is defined as any act or use of verbal or other communication to threaten violence that makes a reasonable person fearful of imminent physical injury.

Imminent: Being menacingly close at hand; impending or threatening.

Alleged Perpetrator Is a Paid Caretaker

When an alleged perpetrator is a paid caretaker, emotional or verbal abuse is defined as any act or communication that is:

  •   used to curse, vilify, humiliate, degrade, or threaten and that results in emotional harm; or

  •   of such a serious nature that a reasonable person would consider it emotionally harmful.

DFPS Rules, 40 TAC §705.1007

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

For the definitions of emotional harm and physical injury, see 1344 Physical Abuse (PHAB) Allegations.

1343.1 Procedure for Assessing Emotional or Verbal Abuse (EMAB) Allegations

APS IH / September 2012

Alleged Perpetrator Is Not a Paid Caretaker

When the alleged perpetrator is a caretaker, family member, or other person with an ongoing relationship, the APS specialist assesses allegations of emotional or verbal abuse to determine whether:

  •   any act or use of verbal or other communication was used to threaten violence; and

  •   the alleged victim was fearful of imminent physical injury based on the threats; or

  •   the threats were of such a serious nature that a reasonable person would be fearful of imminent physical injury.

Screaming, cursing, and other similar behaviors between two individuals are not considered emotional abuse if the threat of violence and the fear of imminent physical injury are not present.

Alleged Perpetrator Is a Paid Caretaker

When the alleged perpetrator is a paid caretaker, the APS specialist assesses allegations of emotional or verbal abuse to determine whether:

  •   any act or communication was used to curse, vilify, humiliate, degrade, or threaten; and

  •   the above actions resulted in emotional harm; or

  •   the act or communication was of such a serious nature that a reasonable person would consider it emotionally harmful.

An alleged victim with a cognitive or auditory disability may not understand or hear emotionally harmful communication by an alleged perpetrator, but the action may still constitute emotional or verbal abuse if a reasonable person would consider it emotionally harmful.

The APS specialist interviews collaterals who may have heard or observed the alleged incident to determine:

  •   what the alleged perpetrator said or did;

  •   the tone of voice the alleged perpetrator used;

  •   any act or communication (verbal or nonverbal) that occurred; and

  •   the alleged victim’s response, if any.

See:

1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

2634 Types of Criminal Offenses (Terroristic Threats subsection)

1344 Physical Abuse (PHAB) Allegations

APS IH / September 2012

Alleged Perpetrator Is Not a Paid Caretaker

When an alleged perpetrator is a caretaker, family member, or other individual who has an ongoing relationship with the alleged victim, physical abuse is any knowing, reckless, or intentional act or failure to act that caused physical injury, emotional harm, or death, including such acts as:

  •   inappropriate or excessive force;

  •   unreasonable confinement;

  •   intimidation; or

  •   corporal punishment.

Abuse does not include the actions a person may reasonably believe to be immediately necessary to avoid imminent harm to self or others, provided the actions are limited only to those actions reasonably believed to be necessary under the existing circumstances.

Alleged Perpetrator Is a Paid Caretaker

When an alleged perpetrator is a paid caretaker, physical abuse is any knowing, reckless, or intentional act or failure to act that caused or may have caused physical injury, emotional harm, or death, including such acts as:

  •   inappropriate or excessive force;

  •   unreasonable confinement;

  •   intimidation; or

  •   corporal punishment.

The following terms are integral to defining physical abuse:

Unreasonable Confinement: An act that results in a forced isolation from the people one would normally associate with, including friends, family, neighbors, and professionals; an inappropriate restriction of movement; or the use of any inappropriate restraint.

Physical Injury: Physical pain, harm, illness, or any impairment of physical condition.

Emotional Harm: A highly unpleasant mental reaction with observable signs of distress, such as anguish, grief, fright, humiliation, or fury.

Intimidation: Behavior by actions or words creating fear of physical injury, death, or abandonment.

Corporal Punishment: The deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline.

Inappropriate or Excessive Force: When more force was used than a reasonable person would consider necessary or appropriate.

DFPS Rules, 40 TAC §§705.1001(17); 705.1003

See:

2634 Types of Criminal Offenses

2710 Allegation Disposition (Valid/No Fault subsection)

1344.1 Procedure for Assessing Physical Abuse (PHAB) Allegations

APS IH / September 2012

Alleged Perpetrator Is Not a Paid Caretaker

When an alleged perpetrator is a caretaker, family member, or other individual who has an ongoing relationship with the alleged victim, the APS specialist assesses allegations of physical abuse to determine whether:

  •   a knowing, reckless, or intentional act or failure to act occurred, including:

  •   inappropriate or excessive force,

  •   unreasonable confinement,

  •   intimidation, or

  •   corporal punishment;

  •   caretakers, family members, or other individuals who have an ongoing relationship with the alleged victim committed the maltreatment; and

  •   the act or failure to act caused emotional harm, physical injury, or death.

Alleged Perpetrator Is a Paid Caretaker

When an alleged perpetrator is a paid caretaker, the APS specialist assesses allegations of physical abuse to determine whether:

  •   a knowing, reckless, or intentional act or failure to act occurred, including:

  •   inappropriate or excessive force,

  •   unreasonable confinement,

  •   intimidation, or

  •   corporal punishment;

  •   a paid caretaker committed the maltreatment; and

  •   the act or failure to act caused or may have caused emotional harm, physical injury, or death.

Examples of Physical Abuse

The following table provides examples of physical abuse.

 

Type of Abusive Act

Examples

Unreasonable confinement

  •   Locked in a confined area (for example, a room or closet)

  •   Isolated from others

  •   Tied to an object

  •   Forced to stay in one place for an unreasonable amount of time (for example, forced to stay on the toilet)

  •   Placed in restraints without a physician’s order (excludes emergency situations, in which case restraint is necessary until assistance is provided).

Corporal punishment

Hit, slapped, pushed, beaten

Inappropriate or excessive force

  •   Pushed, shoved, manipulated with force

  •   Bathed, changed, dressed with unnecessary force

  •   Forced to place limbs in unnatural or painful positions

Intimidation

Actions or words that create a fear of:

  •   pain, physical injury;

  •   abandonment;

  •   use of harm against loved ones; or

  •   death.

See also 1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation.

1345 Sexual Abuse (SXAB) Allegations

APS IH / September 2012

Sexual abuse: Nonconsensual sexual activity, which may include, but is not limited to, any activity that would be a sexually-oriented offense per Texas Penal Code, Chapter 21 (indecent exposure), Chapter 22 (sexual assault), or Chapter 43 (public indecency) committed by:

  •   the alleged victim’s caretaker;

  •   a paid caretaker;

  •   a family member; or

  •   another individual who has an ongoing relationship with the alleged victim.

There is no consent when:

  •   the alleged perpetrator knows or should know that the alleged victim is incapable of consenting because of impairment in judgment due to mental or emotional disease or defect;

  •   consent is induced by force or threat against any person;

  •   the alleged victim is unconscious or physically unable to resist;

  •   the alleged perpetrator has intentionally impaired the alleged victim by administering any substance without the person’s knowledge; or

  •   consent is coerced due to fear of retribution or hardship, or by exploiting the emotional dependency of the alleged victim on the alleged perpetrator.

DFPS Rules, 40 TAC §705.1005

1345.1 Procedure for Assessing Sexual Abuse (SXAB) Allegations

APS IH / September 2012

The APS specialist assesses allegations of sexual abuse to determine whether:

  •   sexual acts occurred that include, but are not limited to, those which constitute offenses under:

  •   Chapter 21, §21.08, Texas Penal Code (indecent exposure), 

  •   Chapter 22, §22.11, Texas Penal Code (sexual assault),

  •   Chapter 43, Texas Penal Code (public indecency);

  •   the acts were nonconsensual; and

  •   a caretaker, paid caretaker, family member, or other individual who has an ongoing relationship with the alleged victim committed the maltreatment.

See:

1345 Sexual Abuse (SXAB) Allegations

1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

2634 Types of Criminal Offenses

1346 Financial Exploitation (EXPL) Allegations

APS-IH / November 2016

When an alleged perpetrator is a paid caretaker, family member, or other individual who has an ongoing relationship with the alleged victim, financial exploitation is defined as the illegal or improper act or process of an alleged perpetrator using, or attempting to use, the resources of the alleged victim, including the alleged victim’s Social Security number or other identifying information:

  •  for monetary or personal benefit, profit, or gain; and

  •  without the informed consent of the alleged victim.

There is no informed consent when the consent is:

  •  not voluntary;

  •  induced by deception or coercion; or

  •  given by an alleged victim who the alleged perpetrator knows or should have known to be unable to make informed and rational decisions because of diminished capacity or mental disease or defect.

Alleged Perpetrator is Not a Paid Caretaker

When the alleged perpetrator is a caretaker, family member, or other individual who has an ongoing relationship with the alleged victim, financial exploitation does not include Theft in the Texas Penal Code, Chapter 31 (theft offenses).Because the penal code falls under the authority of law enforcement, the APS specialist does not investigate theft, but refers the matter to law enforcement.

Alleged Perpetrator is a Paid Caretaker

When the alleged perpetrator is a paid caretaker, financial exploitation includes, but is not limited to, Theft in the Texas Penal Code, Chapter 31 (theft offenses). The APS specialist investigates, and refers the matter to law enforcement.

DFPS Rules, 40 TAC §705.1011

Resources include, but are not limited to:

  •  cash;

  •  money from checking or savings accounts;

  •  certificates of deposit or other interest-earning or investment accounts; and

  •  credit, debit, or other electronic benefits such as a food stamp card.

Property may also be considered a resource if it has monetary value from which the alleged perpetrator derives personal benefit, profit, or gain.

The following table provides examples of theft and fraud and identifies when APS investigates the situation as financial exploitation.

See also 2673.1 Procedure for Investigations Involving Allegations of Financial Exploitation Against a Resident of a Nursing Home.

Situation

Does APS Investigate as Financial Exploitation?

Justification

A non-paid caretaker asks a client for her Social Security number to complete some paperwork for the doctor’s office and then uses the Social Security number to open credit cards in the client’s name.

Yes

The client consented to give the caretaker her Social Security number and the caretaker used the client’s information to obtain credit. The client did not consent to opening credit accounts.

The caretaker hasn’t actually used the credit cards, so this isn’t theft under the penal code. However, opening the credit cards is a clear indication that the unpaid caretaker intends to misuse the client’s SSN for the caretaker’s gain.

APS will investigate further to determine if there is intention.

If the non-paid caretaker had seen the client’s information in a file and taken it without the client’s knowledge, the incident would be identity theft, not financial exploitation.

A client leaves her rings on the counter after washing dishes. When she goes to get them later that evening, the rings are gone. The only person who has been in the client’s home is the client’s grandson.

No

The client’s belongings were taken without her knowledge or permission (theft), most likely by her grandson who was not a paid caretaker. Theft by an unpaid caretaker is not investigated by APS.

The APS specialist refers the allegations by phone to law enforcement and closes the investigation as Does Not Meet Definition.

The client accuses her paid caretaker of stealing her antique necklace that was on the client’s dresser. The necklace was valued at $1,000.

Yes

Although the necklace was taken without the client’s knowledge or permission (theft), the alleged perpetrator is a paid caretaker. Theft by a paid caretaker is investigated by APS.

A privately paid caretaker takes a client’s Social Security number and driver’s license number from the client’s wallet while the client is sleeping. The privately paid caretaker then uses the information to open several credit cards.

Yes

Although the client’s information was taken and used without her permission (theft), the alleged perpetrator is a paid caretaker. Theft is a violation of the Texas Penal Code, chapter 31 and is investigated by APS when the alleged perpetrator is a paid caretaker.

A client lives with his daughter who is his primary unpaid caretaker. He left $20 on his dresser and later in the day notices the $20 is missing.

No

The client’s money may have been taken without his knowledge (Theft). Theft by an unpaid caretaker is not investigated by APS.

The APS specialist refers the allegations by phone to law enforcement and closes the investigation as Does Not Meet Definition.

1346.1 Procedure for Assessing Financial Exploitation (EXPL) Allegations

APS IH / September 2012

The APS specialist assesses allegations of financial exploitation to determine whether:

  •   illegal or improper acts or processes of the alleged perpetrator occurred using, or attempting to use, the resources of the alleged victim, including the alleged victim’s Social Security number or other identifying information, for:

  •   monetary or personal benefit,

  •   profit, or

  •   gain;

  •   caretakers or paid caretakers, family members, or other individuals who have an ongoing relationship with the alleged victim committed the maltreatment; and

  •   the alleged victim did not give informed consent for the transaction.

When the allegations involve theft …

then the APS specialist …

and the alleged perpetrator is a paid caretaker …

investigates.

and the alleged perpetrator is a caretaker, family member, or other individual who has an ongoing relationship with the alleged victim …

refers the allegations to law enforcement.

If a client has a guardian of the estate, see 2651 Financial Exploitation Allegations Involving a Guardian of the Estate.

See also 1530 Procedure for Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation.

1346.11 Assessing Financial Exploitation Allegations Involving Loans

APS IH / September 2012

If a caretaker, family member, or other person who has an ongoing relationship with an alleged victim receives a loan of money or resources from the alleged victim, the loan is not considered financial exploitation, as defined in 1346 Financial Exploitation (EXPL) Allegations, unless:

  •   the alleged victim has diminished capacity to give informed consent; and

  •   all other elements of the definition of financial exploitation are met.

When a paid caretaker (whether paid privately or employed by a home and community support services agency) is not a family member, a loan of money or resources to the paid caretaker by an alleged victim with capacity meets the definition of financial exploitation if the paid caretaker fails to repay the alleged victim according to the agreement established between them.

See 2681.1 Client Makes a Loan to a Paid Caretaker.

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