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1300 Scope and Eligibility

APS IH / May 2014

Chapter 48, Title 2, Texas Human Resources Code (HRC) authorizes APS to investigate the abuse, neglect, or financial exploitation of persons age 65 or older and adults with disabilities and to provide protective services to those people.

Protective services are any actions taken to explore, develop, purchase, or arrange services for clients to alleviate abuse, neglect, or financial exploitation. APS conducting an investigation is not considered a protective service.

APS clients do not have to meet financial eligibility requirements to receive protective services.

The following terms are integral to the APS in-home program:

Adult: A person aged 18 or older, or an emancipated minor.

Alleged victim: An adult with a disability or aged 65 or older who has been reported to APS to be in a state of or at risk of harm due to abuse, neglect, or financial exploitation.

Emancipated minor: A person under 18 years of age who has the power and capacity of an adult. This includes a minor who has had the disabilities of minority removed by a court of law or a minor who, with or without parental consent, has been married. Marriage includes common-law marriage.

Person with a disability: An adult with a physical, mental, or developmental disability that substantially impairs the adult’s ability to adequately provide for his or her own care or protection.

See also 40 Texas Administrative Code §705.1001.

APS does not investigate Medicaid fraud, but is required to report the information if it is witnessed by APS staff. For example, if a Medicaid client is working for cash that is not being reported to the Medicaid office, APS must report this information to the appropriate Medicaid office.

See:

1346.1 Procedure for Assessing Financial Exploitation (EXPL) Allegations

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

3130 Providing Services Regardless of the Person’s Financial Resources

1310 APS Eligibility Criteria

APS IH / May 2014

APS investigates allegations of abuse, neglect, and financial exploitation and provides protective services, regardless of race, creed, color, or national origin to people who are:

  •  age 65 or older;

  •  age 18-64 with a mental, physical, or developmental disability that substantially impairs the ability to live independently or provide for their own self-care or protection; or

  •  emancipated minors with a mental, physical, or developmental disability that substantially impairs the ability to live independently or provide for their own self-care or protection.

APS clients do not have to meet financial eligibility requirements.

Reporters of abuse, neglect, or financial exploitation sometimes do not provide sufficient information for APS to determine an adult’s level of impairment from a disability. APS must assess the adult’s level of impairment to determine whether the APS eligibility criteria are met.

APS provides referrals to local community resources, if available, but does not investigate if the:

  •  person is not age 65 or older or is not an adult with a disability that substantially impairs the ability to live independently or provide for his or her own self-care or protection; or

  •  allegations are not consistent with the APS definition of abuse, neglect, or financial exploitation.

See also 3130 Providing Services Regardless of the Person’s Financial Resources.

1311 Substantial Impairment

APS IH / April 2016

Adults age 65 or older are automatically eligible for APS services based on their age. An adult age 18 to 64 old must be substantially impaired to be eligible for APS services.

Substantially impairs: When a disability grossly and chronically diminishes an adult’s physical or mental ability to live independently or provide self-care as determined through observation, diagnosis, evaluation, or assessment.

Texas Human Resources Code §48.002(a)(8)

Title 40, Texas Administrative Code §705.1001

An adult age 18 to 64 must have a mental, physical, or developmental disability as indicated by one of the following:

  •  A medical condition

  •  Professional diagnosis

  •  Reported or observed behavior that is consistent with such a diagnosis. The disability must cause a long-lasting and considerable inability to live independently or provide self-care.

To determine an adult’s ability to live independently or provide self-care, the APS specialist considers whether the adult has a limitation in activities, such as:

  •  using a phone;

  •  shopping;

  •  cooking or preparing food;

  •  housekeeping;

  •  administering medications;

  •  dressing in clothing appropriate for the weather;

  •  obtaining needed medical services, support services, or transportation;

  •  making sound decisions; or

  •  preventing harm to self or others.

If an adult age 18 to 64 is unable or unwilling to perform one or more of these activities, then he or she may be unable to live independently or provide self-care. The specialist must assess the adult’s situation in its entirety to determine whether he or she is substantially impaired.

In cases where it is difficult to determine whether the adult is able to live independently or provide self-care, the adult’s degree of vulnerability, such as the ability to protect himself or herself, is considered. If the degree of vulnerability is significant, then the adult is accepted as substantially impaired.

An individual is automatically considered substantially impaired when he or she:

  •  has a legal guardian of the person or estate; or

  •  has been determined to qualify for one or more of the following Medicaid waiver programs:

  •  State of Texas Access Reform + PLUS (STAR+PLUS)

  •  Medically Dependent Children’s Program (MDCP)

  •  Deaf/Blind with Multiple Disabilities (DBMD)

  •  Community Living Assistance and Support Services (CLASS)

  •  Home and Community-based Services (HCS)

  •  Texas Home Living (TxHmL)

  •  Youth Empowerment Services (YES)

Medicaid waiver services have a higher threshold to meet in order to qualify for their services than what is required to qualify for other available provider services. Community Attendant Services, Family Care, Primary Home Care, and other sources of provider services (such as home health services through a physician’s order), are not Medicaid waiver programs and, therefore, are not automatic qualifiers for APS eligibility. For more information on Medicaid community services waiver programs, see the DADS Reference Guide.

Allegations involving individuals receiving Medicaid HCBS services, or using the Consumer Directed Services (CDS) option normally fall within the jurisdiction of the APS Provider Investigations program.

See:

1300 Scope and Eligibility

1320 Procedure for Determining APS Eligibility

1430 Assessing Allegations in Settings Investigated by APS Provider Investigations

1311.1 Disability Payments and APS Eligibility

APS IH / May 2014

Adults who receive Supplemental Security Income (SSI), Social Security Disability (SSD), or other types of disability payments (such as veterans’ benefits or workers’ compensation) do not automatically meet APS eligibility criteria and are further assessed by APS to determine whether they are substantially impaired.

See:

1311 Substantial Impairment

1311.2 Chronic Substance Abuse and APS Eligibility

APS IH / March 2013

APS does not investigate issues of chronic substance abuse, such as excessive use of alcohol, prescription medications, or illicit drugs. Chronic substance abuse, in and of itself, is not a disability.

APS conducts an investigation involving an adult with chronic substance abuse when the substance abuse results in a mental or physical disability consistent with the definition of substantially impairs.

If the adult is not substantially impaired, the APS specialist:

  •   refers the adult to the appropriate community resources; and

  •   closes the investigation in the IMPACT system as Does Not Meet Definition of APS.

See:

1310 APS Eligibility Criteria

1342.1 Procedure for Assessing Physical Neglect (PHNG) Allegations

1342.2 Procedure for Assessing Mental Health Neglect (MHNG) Allegations

1342.3 Procedure for Assessing Medical Neglect (MDNG) Allegation

1311.3 Examples: of What Is and Is Not Considered Substantial Impairment

APS IH / March 2013

The following table explains the types of situations that do or do not meet the APS criteria for substantial impairment.

Physical Disability

Situation

Substantial Impairment?

Justification

A 35-year old man broke both legs in a car accident and is using a wheelchair to ambulate, but is expected to make a full recovery.

No

1) He has an acute medical condition, but does not have a disability.

2) It is not clear from the information given if the medical condition diminishes his ability to live independently or provide self-care, but it appears it probably does not.

3) It is clear that this diminishment is not chronic since there is a good prognosis for recovery.   

A 52-year old man lives with his wife and has a heart condition. He is unable to work and occasionally has difficulty with certain tasks such as cleaning and doing laundry. He is able to drive, cook, and bathe and groom himself.

No

1) He has a chronic health condition, but there is no indication in the provided information that he is physically disabled.

2) While he occasionally has difficulty with certain tasks, he is able to perform the basic activities of daily living.

3) While a heart condition is chronic in nature, it does not appear to be causing a gross, long-lasting inability to live independently or provide self-care.

A 56-year old man is diagnosed with ALS. His condition is rapidly deteriorating. At this time he can perform only a few simple tasks related to self-care. His prognosis is poor.

Yes

1) He has a chronic health condition that has resulted in a disability.

2) His ability to live independently and provide self-care is limited and getting worse.

3) His condition is gross and chronic.

Mental Disability

Situation

Substantial Impairment?

Justification

A 45-year old woman has a diagnosis of Bipolar Disorder, which is controlled with medication. She lives alone and has no physical limitations. She occasionally fails to take her medication, which is of concern to her friends, but has not resulted in harmful activities.

No

1) She has a mental illness, but it does not appear to be a disability.

2) From the information provided, she is able to protect herself and perform her basic activities of daily living.

3) While her mental illness is chronic in nature, it is usually managed through medication and does not appear to be causing a gross, long-lasting inability to live independently or provide self-care.

A 23-year old man suffered a traumatic brain injury in a car accident. He has regained the ability to walk and talk, but is not expected to regain his ability to perform more complex tasks such as shopping, driving, and money management.

Yes

1) He has a disability.

2) Although he is able to communicate and perform some basic activities of daily living, he requires assistance with other activities. He is not able to live independently or provide self-care based on his inability to shop, manage money, or drive.

3) His condition is both gross and chronic.

A 32-year old woman has been diagnosed with Bipolar Disorder and Major Depressive Disorder. She exhibits delusions and paranoia. Her house is filthy. She doesn’t bathe. Although her family gives her food, she believes it is poisoned; she has lost a lot of weight in just a few months. Although she has a psychiatrist, she does not make or keep appointments.

Yes

1) She has a diagnosis of mental illness, which has resulted in a disability.

2) She is not able to care for herself as evidenced by her house being filthy and her failure to bathe.

3) Her condition is both gross and chronic.

Intellectual and Developmental Disabilities

Situation

Substantial Impairment?

Justification

A 24-year old man is autistic and has a history of aggression and seizures. His cousin has medical Power of Attorney and wants him “detoxed” off all of his medications against medical advice. He has lived in 7-8 group homes and been hospitalized several times due to medication issues possibly related to the cousin’s attempts to stop all medications.

Yes

1) He has a developmental disability.

2) His ability to live independently and provide self-care is limited since he is unable to make sound decisions and is in need of a high level of supervision to prevent harm to self or others.

3) His condition is both gross and chronic.

A 50-year old woman has Downs Syndrome. With supports through a DADS Medicaid-waiver program, she lives independently and receives services. Lately, her neighbors have noticed that she is wandering the streets alone, but appears to be well-fed and clean in appearance.

Yes

1) She has a developmental disability.

2) It is unclear if she could live independently and provide self-care without the supports from the DADS Medicaid-waiver program.

3) Her condition is both gross and chronic.

   While she is substantially impaired, the APS specialist must determine whether this is an in-home or facility investigation based on the perpetrator and location of the incident. See 1430 Assessing Allegations in Settings Investigated by APS Facility Investigations.

A 45-year old man has an IQ of 65. He receives case management through the local authority. He has always lived with his mother who recently passed away. While he is physically capable of performing basic activities of daily living such as bathing, dressing, and grooming, he often chooses not to do so. His mother was his representative payee, prepared all the meals and did all the housework.

Yes

1) He has an intellectual disability.

2) It is unclear whether he will be able to live independently and provide self-care without the support he was receiving from his mother.

3) His condition is gross and chronic.

A 19-year old woman has Asperger’s Disorder. She has no physical limitations. She lives in her own apartment, attends the local community college, and manages her own money.

No

1) She has a developmental disability.

2) She is able to live independently and provide self-care.

3) Her condition is chronic, it doesn’t appear to be causing a gross, long-lasting inability to live independently or provide self-care.

Chronic Substance Abuse

Situation

Substantial Impairment?

Justification

A 17-year old emancipated minor is reported to be using illegal drugs on a regular basis and causing minor vandalism in the neighborhood. It is believed he lives with a friend in the neighborhood.

No

1) It is unlikely the substance abuse has resulted in a disability.

2) There is no indication that he is unable to live independently or provide self-care.

3) His condition is neither gross nor chronic.

A 64-year old woman drinks an excessive amount of alcohol and has done so for many years. Her neighbors have noticed a steady deterioration in the condition of her property. She is often seen out walking the streets, talking to herself, and unaware of her surroundings.

Yes

1) Her years of drinking appear to have caused a mental disability.

2) There is evidence that she can no longer live independently and provide self-care.

3) Her condition is both gross and chronic.

1320 Procedure for Determining APS Eligibility

APS IH / May 2014

The APS specialist determines whether the adult is age 65 or older, has a legal guardian, or receives DADS Medicaid waiver services. If the adult does not meet any of these criteria, the APS specialist determines if the adult is substantially impaired by:

  •  assessing whether the adult has a physical, mental, or developmental disability;

  •  assessing whether the adult’s disability causes a long-lasting and considerable inability to live independently or provide self-care; and

  •  questioning the adult and collaterals (such as family members, medical professionals, and so on, as appropriate, about whether the adult can consistently perform all of the activities necessary to live independently and provide self-care.

If it is difficult to determine whether the adult has a substantial impairment, the specialist considers the adult’s degree of vulnerability as outlined in 1311 Substantial Impairment. The APS specialist does not use PCS funds to obtain a professional medical or mental health assessment in order to determine if an individual is substantially impaired. If there is doubt, the APS specialist finds the individual eligible for APS.

If an adult is eligible for APS, the APS specialist assesses whether the alleged maltreatment is consistent with the definition of abuse, neglect, or financial exploitation.

If the alleged maltreatment is consistent with the definition of abuse, neglect, or financial exploitation, then the APS specialist conducts an investigation.

The APS specialist closes the case as Does Not Meet Definition of APS, if:

  •  the person is not age 65 or older;

  •  the person is not an adult age 18 to 64 or an emancipated minor with a disability that substantially impairs the ability to adequately provide for his or her own care or protection; or

  •  the allegation is not consistent with the definition of abuse, neglect, or financial exploitation.

See:

1311 Substantial Impairment

1341 Procedure for Assessing Allegations

3110 Determining Eligibility for Services

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