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3000 Scope and Eligibility

APS January 2022

Chapter 48, Title 2, Texas Human Resources Code (HRC) authorizes APS to do the following:

  • Investigate the abuse, neglect, or financial exploitation of people age 65 or older and adults with disabilities.
  • 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. The APS investigation is not considered a protective service.

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

When APS receives an intake, the APS specialist determines whether the client, alleged perpetrator, and allegation meet criteria for an APS investigation.

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

  • The person is younger than age 65 and 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.
  • The allegation is not consistent with the APS definition of abuse, neglect, or financial exploitation.

When an intake does not meet APS criteria for an investigation, APS refers the allegation to the appropriate investigative entity.

See:

3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

8623 Financial Exploitation Allegations

10911 Client’s Budget and Financial Resources

3100 Client Eligibility

APS January 2022

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

  • Age 65 or older.
  • Age 18-64 with a mental, physical, intellectual, or developmental disability that substantially impairs the ability to live independently or provide for their own self-care or protection.
  • Emancipated minors with a mental, physical, intellectual, 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.

See 40 Texas Administrative Code §705.101.

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 person meets APS eligibility criteria.

See 10911 Client’s Budget and Financial Resources.

3110 Automatic Eligibility

APS January 2022

Adults age 65 or older are automatically eligible for APS services based on their age.

A person is automatically considered substantially impaired when one of the following applies:

  • He or she has a legal guardian of the person or estate.
  • He or she has been determined to qualify for one or more of the following Medicaid waiver programs:
    • State of Texas Access Reform + PLUS Home and Community Based Services (STAR+PLUS HCBS).
    • Medically Dependent Children 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).

The threshold to qualify for Medicaid waiver programs is higher than it is for other provider services. A person is not automatically eligible for APS services if he or she qualifies for provider services that are not Medicaid waiver programs, such as:

  • Community Attendant Services (CAS).
  • Family Care (FC).
  • Primary Home Care (PHC).
  • Other sources of provider services, such as home health services through a physician’s order.

For more information on Medicaid community services waiver programs, see Texas Medicaid and CHIP in Perspective.

See 3340 Home and Community-Based Services and Consumer Directed Services.

3120 Substantial Impairment

APS January 2022

If the adult does not meet any of the automatic eligibility criteria (as defined in 3110 Automatic Eligibility), the APS specialist determines whether the adult is substantially impaired by completing the following actions:

  • Assessing whether the adult has a physical, mental, intellectual, or developmental disability.
  • Assessing whether the adult’s disability causes a long-lasting and considerable inability to live independently or provide self-care.
  • 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.

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

Title 40, Texas Administrative Code §705.101

To be considered substantially impaired, an adult age 18 to 64 (or an emancipated minor) must have a mental, physical, intellectual, 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 either of the following:

  • A physical limitation.
  • A mental, intellectual, or developmental impairment that prevents or limits the ability to complete daily activities.

The APS specialist considers whether the adult’s ability to complete any of the following physical activities is limited:

  • Using a phone.
  • Shopping.
  • Cooking or preparing food.
  • Housekeeping.
  • Administering medications.

The APS specialist also considers whether a possible mental, intellectual, or developmental impairment limits the adult’s ability to complete any activities such as the following:

  • Dressing in clothing appropriate for the weather.
  • Obtaining needed medical services, support services, or transportation.
  • Making sound decisions.
  • Preventing harm to self or others.

If an adult age 18 to 64 (or an emancipated minor) is unable or unwilling to perform one or more of these activities or can only perform them with direction or support from others, then he or she may be unable to live independently or provide self-care. The APS specialist must assess the adult’s entire situation 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 specialist considers the adult’s degree of vulnerability, such as the ability to protect himself or herself. For example, if an adult is described as “slow” or “functioning at a child’s level,” his or her degree of vulnerability is likely to place him or her at risk of abuse, neglect, or financial exploitation because of his or her low level of functioning. If the degree of vulnerability is significant, then the adult is accepted as substantially impaired.

The APS specialist does not use Purchased Client Services (PCS) funds to obtain a professional medical or mental health assessment to determine whether someone is substantially impaired. If there is doubt, the APS specialist finds the person eligible for APS.

See:

3000 Scope and Eligibility

3100 Client Eligibility

4231.1 Allegations in Settings Investigated by HHSC Provider Investigations

8500 Allegations Involving Paid Caretakers

Disability Payments and APS Eligibility

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. APS assesses adults receiving these disability payments to determine whether they are substantially impaired.

See 3120 Substantial Impairment.

Chronic Substance Abuse and APS Eligibility

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 both of the following apply:

  • The substance abuse has resulted in a mental or physical disability consistent with the definition of substantial impairment.
  • There is an allegation of abuse, neglect, or financial exploitation.

If the adult is not substantially impaired, the APS specialist does as follows:

  • Refers the adult to the appropriate community resources.
  • Closes the case in the IMPACT system as Does Not Meet Definition of APS.

See:

3100 Client Eligibility

8621 Neglect Allegations

Examples of What Is and Is Not Considered Substantial Impairment

The following tables explain 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

  • He has an acute medical condition but does not have a disability.
  • It is not clear from the information given whether the medical condition diminishes his ability to live independently or provide self-care, but it appears it probably does not.
  • 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 can drive, cook, and bathe and groom himself.

No

  • He has a chronic health condition, but there is no indication in the provided information that he is physically disabled.
  • While he occasionally has difficulty with certain tasks, he can perform the basic activities of daily living.
  • While a heart condition is chronic in nature, it does not appear to be causing a considerable, 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

  • He has a chronic health condition that has resulted in a disability.
  • His ability to live independently and provide self-care is limited and getting worse.
  • 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 concerns her friends but has not resulted in harmful activities.

No

  • She has a mental illness, but it does not appear to be a disability.
  • From the information provided, she can protect herself and perform her basic activities of daily living.
  • While her mental illness is chronic in nature, it is usually managed through medication and does not appear to be causing a considerable, 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 managing money.

Yes

  • He has a disability.
  • Although he can 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.
  • 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

  • She has a diagnosis of mental illness, which has resulted in a disability.
  • She is not able to care for herself, as evidenced by her house being filthy and her failure to bathe.
  • 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 his medications against medical advice. He has lived in seven or eight group homes and been hospitalized several times because of medication issues possibly related to the cousin’s attempts to stop all medications.

Yes

  • He has a developmental disability.
  • His ability to live independently and provide self-care is limited, since he is unable to make sound decisions and needs a high level of supervision to prevent harm to self or others.
  • His condition is both gross and chronic.

A 50-year-old woman has Down syndrome. With supports through an HHSC 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

  • She has a developmental disability.
  • It is unclear whether she could live independently and provide self-care without the supports from the HHSC Medicaid waiver program.
  • Her condition is both gross and chronic.

While she is substantially impaired, the APS specialist must determine whether this is an APS or facility investigation, based on the alleged perpetrator and location of the incident. See 4231.1 Allegations in Settings Investigated by HHSC Provider Investigations.

A 45-year-old man has an IQ of 65. He receives case management through the local mental health 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

  • He has an intellectual disability.
  • It is unclear whether he will be able to live independently and provide self-care without the support he was receiving from his mother.
  • His condition is gross and chronic.

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

No

  • She has a developmental disability.
  • She can live independently and provide self-care.
  • Her condition is chronic, but 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

  • It is unlikely the substance abuse has resulted in a disability.
  • There is no indication that he is unable to live independently or provide self-care.
  • 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

  • Her years of drinking appear to have caused a mental disability.
  • There is evidence that she can no longer live independently and provide self-care.
  • Her condition is both gross and chronic.

3200 Allegations

APS January 2022

An allegation is an assertion that a person (client) is in a state of harm, or at risk of harm, because of abuse, neglect, or financial exploitation.

DFPS Rules, 40 TAC §705.101(2)

If an adult is eligible for an APS investigation and protective services, the APS specialist assesses whether the allegation is consistent with the definition of abuse, neglect, or financial exploitation. If it is, then the APS specialist conducts an investigation.

APS only investigates allegations that meet all of the following criteria:

  • Meet the definition of abuse, neglect, or financial exploitation in 40 Texas Administrative Code §705.
  • Indicate that the alleged perpetrator is in a position to abuse, neglect, or financially exploit the client, if applicable.
  • Indicate that the client is being abused, neglected, or financially exploited, or is at risk of being abused, neglected, or financially exploited in the near future.

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

See:

3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

8620 Determination of the Validity of the Allegation

13110 Rapid Closure Codes and Disposition of Other

Assessing Allegations

APS does not have a time limit for investigating or not investigating an allegation of abuse, neglect, or financial exploitation. APS determines on a case-by-case basis whether it is appropriate to close an intake without a full investigation.

The APS specialist does as follows:

  • Assesses whether the allegation appears to meet the definition of abuse, neglect, or financial exploitation.
  • Assesses the role of the alleged perpetrator, if applicable, to determine whether he or she is any of the following:
    • Family member.
    • Caretaker.
    • Person who has an ongoing relationship with the client.
  • Determines whether the alleged perpetrator is still in a position to abuse, neglect, or financially exploit the client.
  • Determines whether the client is currently being abused, neglected, or financially exploited, or is at risk of abuse, neglect, or financial exploitation in the foreseeable future.
  • Completes a thorough investigation to determine whether the alleged maltreatment occurred or refers the allegation to another investigating authority, as outlined in Investigation by Another Authority, below.

APS Investigation

APS conducts an investigation, regardless of whether the alleged perpetrator is in a position to abuse, neglect, or financially exploit the client, when either of the following applies:

  • The alleged perpetrator is an employee of a home and community support services agency (HCSSA), and the allegation meets the definition of abuse, neglect, or financial exploitation and qualifies as reportable conduct. (See 14412 Reportable Conduct.)
  • Possible past financial exploitation currently prevents the client from qualifying for long-term care coverage from Medicaid to pay nursing home costs.

Investigation by Another Authority

The APS specialist refers the situation to the proper investigating authority, if either of the following applies:

  • The alleged maltreatment does not meet the definition of abuse, neglect, or financial exploitation.
  • Both of the following apply:
    • The alleged perpetrator is no longer in a position to abuse, neglect, or financially exploit the client.
    • The client is not being abused, neglected, or financially exploited and is not at risk of abuse, neglect, or financial exploitation in the foreseeable future.

See:

3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

8400 Referrals to Law Enforcement

13110 Rapid Closure Codes and Disposition of Other

3210 Neglect Allegations

APS January 2022

Neglect means failing to provide the goods or services, including medical services, that are necessary to avoid physical or emotional harm or pain. This includes the following:

  • A person failing to provide the necessary goods or services for himself or herself (known as self-neglect).
  • A caretaker failing to provide the necessary goods or services (known as caretaker neglect).

DFPS Rules, 40 TAC §705.105

DFPS Rules, 40 TAC §705.101(20)

Types of Neglect

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

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

Examples of Neglect

  • The client is diabetic and has only enough insulin left for today (medical neglect).
  • The client has decubiti (bedsores) that require a change in position every four hours. The caretaker fails to perform this task, but there is no harm or injury (physical neglect).
  • The caretaker fails to lock the client’s wheelchair after a bath, but there is no harm or injury (physical neglect).
  • The caretaker leaves the client in the car at the grocery store while the caretaker shops. The outdoor temperature is 90 degrees, but the client does not suffer any harm or injury (physical neglect).
  • The client has an intellectual disability and schizophrenia and requires medication to prevent hallucinations and aggressive behavior. The caretaker fails to get the client’s medication (medical neglect).

See Valid/No Fault under Codes for Allegation Dispositions in 8610 Allegation Disposition (Finding).

3220 Abuse Allegations

APS January 2022

When the alleged perpetrator is a caretaker, family member, or another person who has an ongoing relationship with the client, abuse is defined as either of the following:

A person’s actions are not considered to be abuse if they meet all of the following criteria:

  • The person reasonably believes the actions to be immediately necessary to avoid imminent harm to self or others.
  • The actions are limited only to those actions reasonably believed to be necessary under the existing circumstances.
  • The alleged perpetrator is any of the following:
    • An unpaid caretaker.
    • A family member.
    • Another person who has an ongoing relationship with the client.

Types of Abuse

Physical Abuse (PHAB)

The negligent or willful infliction of injury, unreasonable confinement, or cruel punishment with resulting physical or emotional harm or pain.

Sexual Abuse (SXAB)

Any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code, Section 21.08 (indecent exposure) or Texas Penal Code, Chapter 22, Assaultive Offenses.

Emotional or Verbal Abuse (EMAB)

Any act or use of verbal or other communication, including intimidation, that causes physical or emotional harm or pain. This includes any act or communication that would cause a reasonable person in a similar situation physical or emotional harm or pain.

Examples

  • The client has decubiti (bedsores) that require a change in position every four hours. The caretaker fails to perform this task. The decubiti worsen, and the client develops sepsis (an infection and illness) (physical abuse).
  • The caretaker fails to lock the client’s wheelchair after a bed bath. The client falls and breaks her arm (physical abuse).
  • The client’s grandson strikes him on the head with a closed fist. There is no visible injury, but the client is visibly scared of being hit again (physical abuse).
  • The caretaker threatens to beat up the client if the client doesn’t clean the house. The client is afraid of being harmed (emotional or verbal abuse).
  • The client has a moderate intellectual disability. The caretaker engages in sexual activity with the client despite knowing that the client is incapable of consenting (sexual abuse).

See Valid/No Fault under Codes for Allegation Dispositions in 8610 Allegation Disposition (Finding).

3230 Financial Exploitation (EXPL) Allegations

APS January 2022

Financial exploitation is defined as the illegal or improper act or process of the alleged perpetrator using, or attempting to use, the resources of the client, including the client’s Social Security number or other identifying information, when all the following apply:

  • The alleged perpetrator is a caretaker, family member, or another person who has an ongoing relationship with the client.
  • The alleged perpetrator used the resources for monetary or personal benefit, profit, or gain.
  • The alleged perpetrator used the resources without the informed consent of the client.

There is no informed consent when the consent is any of the following:

  • Not voluntary.
  • Induced by deception or coercion.
  • Given by a client who the alleged perpetrator knows or should have known is unable to make informed and rational decisions because of diminished capacity or mental disease or defect.

Resources include, but are not limited to, the following:

  • Cash.
  • Money from checking or savings accounts.
  • Certificates of deposit or other interest-earning or investment accounts.
  • Credit cards, debit cards, or 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.

Financial exploitation does not include theft as defined in the Texas Penal Code, Chapter 31. The APS specialist does not investigate theft but refers the matter to law enforcement.

DFPS Rules, 40 TAC §705.101

Examples of Theft and Fraud

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

Situation

Does APS Investigate as Financial Exploitation?

Justification

A 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 was able to gain new credit using the client’s information, but this is not theft under the Penal Code. If the caretaker had seen the client’s information in a file and had taken it without the client’s knowledge, the incident would have been identity theft (fraud), not financial exploitation.

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

No

The client’s information was taken without her permission (theft). APS does not investigate theft.

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

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. APS does not investigate theft.

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

See:

4211.1 Financial Exploitation of a Resident of a Nursing Home

8510 Loans to a Paid Caretaker

12160 Requesting a Transaction Hold from a Financial Institution

Financial Exploitation and Medicaid Eligibility

Financial exploitation may affect whether a client is eligible for Medicaid. The APS specialist needs to be aware of this.

APS investigates allegations of financial exploitation, no matter when the alleged act occurred, if it currently affects a client’s ability to qualify for Medicaid funding to live in a nursing home.

See 8620 Determination of the Validity of the Allegation.

Fiduciary Exploitation

A common form of financial exploitation is misconduct by a fiduciary. A fiduciary is a person who formally agrees to manage another person’s money or property on his or her behalf. Common kinds of fiduciaries include the following:

  • Representative payee.
  • Power of attorney.
  • Trustee.

Usually, a fiduciary who takes funds belonging to a beneficiary or ward for the fiduciary’s personal use is abusing the fiduciary relationship and committing financial exploitation. However, the attorney representing DFPS determines what powers the fiduciary has, according to the legal document creating the fiduciary relationship and the law. Only then is it possible to say whether a specific transfer was exploitation.

3300 Perpetrators

3310 Perpetrators of Abuse and Financial Exploitation

APS January 2022

APS investigates abuse and financial exploitation of a person age 65 or older or an adult with a disability when the alleged perpetrator is any of the following:

  • Caretaker. (Relatives and household members of the client do not automatically meet the definition of the caretaker role.)
  • Family member.
  • Person who has an ongoing relationship with the client.

Texas Human Resources Code (HRC) Chapter 48

Texas Administrative Code (TAC) Chapter 705

Ongoing Relationship

An ongoing relationship is a personal relationship that includes all of the following:

  • Frequent and regular interaction.
  • A reasonable assumption that the interaction will continue.
  • An establishment of trust beyond a commercial or contractual agreement.

DFPS Rules, 40 TAC §705.101(36)

See 3320 Perpetrators of Neglect.

Establishing Perpetrators of Abuse and Financial Exploitation

The APS specialist examines the role and perceptions of both the client and alleged perpetrator to determine whether an ongoing relationship exists.

The APS specialist interviews the following people:

  • Client
  • Alleged perpetrator
  • Collaterals (as necessary)

The purpose of the interviews is to establish that the alleged perpetrator is related to the client as any of the following:

  • Caretaker.
  • Family member.
  • Person who has an ongoing relationship with the client.

Examples of an Ongoing Relationship

Examples of a person considered to have an ongoing relationship with the client include the following:

  • Personal friend
  • Paramour
  • Roommate

Examples of an ongoing relationship are as follows:

  • Ms. Smith rents a garage apartment from Mr. Adams, who is 82 years old. She visits Mr. Adams frequently and often shops for him. At times, she takes him to medical appointments. Occasionally, she cooks a meal and they dine together.
  • Mr. Jones is 75 years old and lives next door to Mr. Garza. Mr. Garza takes Mr. Jones to the store at least once a month and speaks to Mr. Jones several times per week. Mr. Jones tells Mr. Garza when he is going out of town to visit family and asks Mr. Garza to gather his mail while he’s gone.
  • Susan and John are both in their 70s and have been dating for six months.

Examples of What Is Not an Ongoing Relationship

APS does not investigate allegations against the following people when there is no ongoing relationship with the client:

  • Mail carrier.
  • Employer.
  • Door-to-door salesperson or telemarketer.
  • Landlord.
  • Neighbor.
  • Online-only relationship.

If there is no ongoing relationship, APS may investigate an allegation of self-neglect. However, if there is an ongoing relationship with the client, APS may investigate an allegation of abuse, neglect, or financial exploitation.

Examples of people who do not have an ongoing relationship are as follows:

  • The Taylors are two brothers who live across the street from Mrs. Garcia. She says hello to the Taylors when she sees them in their yard but has no other contact with them. While there is an assumption that their interaction will continue, there is not a personal relationship with frequent and regular contact.
  • Ms. Grace and Ms. James both participate in activities at the local senior center each week. While they are familiar with each other, they do not socialize at the center or otherwise. They both attend the same program each week, but they do not have a personal relationship.
  • Mr. Foster is a handyman who has done various home repairs for Mr. Jensen. Mr. Foster and Mr. Jensen have no contact outside of their interactions related to the home repairs. There is not frequent and regular contact or an establishment of trust, beyond their contractual agreement.
  • Mr. Johnson and Ms. Smith met through an online dating website. Mr. Johnson sends Ms. Smith $200 each week because she tells him she needs it to be able to plan a trip to visit him. Mr. Johnson and Ms. Smith communicate weekly online, but there is not a personal relationship.

In 3320 Perpetrators of Neglect, see Examples of Caretaker Relationships and Examples of What Is Not a Caretaker Relationship.

3320 Perpetrators of Neglect

APS January 2022

APS investigates neglect of a person age 65 or older or an adult with a disability when the alleged perpetrator is either of the following:

  • The person age 65 or older or the adult with a disability (self-neglect).
  • A caretaker. (Relatives and household members of the client do not automatically meet the definition of the caretaker role.)

Texas Human Resources Code (HRC) Chapter 48

Texas Administrative Code (TAC) Chapter 705

Establishing Perpetrators of Neglect

The APS specialist interviews the following people to establish the caretaker role for neglect allegations:

  • Client
  • Alleged perpetrator
  • Collaterals (as necessary)

The APS specialist verifies that the alleged perpetrator meets at least one of the following criteria:

  • Has accepted responsibility for the client’s protection, food, shelter, or care.
  • Is an employee of a home and community support services agency (HCSSA) providing non-Medicaid services to the client.
  • Is privately hired and receiving monetary compensation to provide personal care services to the client.

See 8500 Allegations Involving Paid Caretakers.

Examples of Caretaker Relationships

The following examples describe, but are not an exhaustive list of, conduct that establishes that an alleged perpetrator has accepted responsibility for a client’s protection, food, shelter, or care, as a caretaker:

  • A 20-year-old man is unable to ambulate or perform his activities of daily living without assistance. He lives with his father. Every day, the father bathes the client, helps him to the bathroom, and cooks for him. The father’s actions establish that he accepts the responsibility of caring for his son.
  • An 82-year-old woman has dementia. She is unable to manage her money without assistance. The client’s daughter, who lives out of state, manages the client’s money. The daughter pays her mother’s rent, utilities, and other bills. The daughter’s ongoing actions establish that she accepts responsibility for managing her mother’s money.
  • An 86-year-old man uses a wheelchair and needs help with his activities of daily living. He pays a HCSSA to help him with personal care. The HCSSA employee accepts responsibility for the man’s care by accepting the assignment to assist the man.

Examples of What Is Not a Caretaker Relationship

The following examples describe conduct that establishes that an alleged perpetrator has not accepted responsibility for a client’s protection, food, shelter, or care:

  • A 92-year-old man with dementia gives his estranged son’s name and phone number to the social worker for Meals on Wheels. The social worker calls the man’s son to come care for his father. The son has not maintained contact with his father. He refuses to go to his father’s home. The son’s actions establish that he has not accepted responsibility for his father’s care.
  • A 37-year-old woman with impaired mobility lives with a roommate. The roommate pays his half of the bills but never helps the woman with personal care. The woman fires her home health provider. She has no one to help her with her activities of daily living. The roommate has never indicated that he accepts that responsibility.

3330 Minors as Perpetrators

APS January 2022

Occasionally, minors are alleged to be perpetrators of abuse, neglect, or financial exploitation against people age 65 or older and adults with disabilities. APS establishes minors as perpetrators based on age.

When a minor is 9 years old or younger, APS does not investigate the minor as an alleged perpetrator, regardless of the circumstances.

When a minor is 10-17 years old, the APS specialist establishes the minor’s role as an alleged perpetrator in the same way as he or she would for an adult.

See:

3310 Perpetrators of Abuse and Financial Exploitation

3320 Perpetrators of Neglect

Valid/No Fault under Codes for Allegation Dispositions in 8610 Allegation Disposition (Finding)

8620 Determination of the Validity of the Allegation

3340 Home and Community-Based Services and Consumer Directed Services

APS January 2022

Allegations involving perpetrators who provide Medicaid Home and Community-Based Services (HCBS) or Consumer Directed Services (CDS) are not within APS jurisdiction.

3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation

APS January 2022

When APS receives information or concerns about situations that do not meet the definition of abuse, neglect, or financial exploitation, APS refers the information to the appropriate investigative entity. See the table below for examples.

Examples

Complaint or Situation

Investigative Entity

Investigations conducted by other state agencies.

The state agency named in the complaint. That agency will review the complaint according to its internal procedures.

Policies or practices in a licensed facility.

The licensing agency for the facility (such as HHSC).

Waste, abuse, or fraud within the Texas Health and Human Services system.

The Texas Health and Human Services Commission (HHSC).

Conduct or practices by a licensed professional when there are no allegations of abuse, neglect, or financial exploitation.

The appropriate licensing board, after consulting with the regional attorney.

Medicaid Fraud

APS does not investigate Medicaid fraud but must report the information if APS staff witnesses it. 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:

14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies

Appendix I: Facilities and Jurisdictions

3410 Death Allegations When There Is Not an Open APS Case

APS January 2022

When the APS specialist receives an intake involving allegations of abuse or neglect of a client who is already deceased, the specialist does as follows:

  • Investigates the allegations of the death of the client as outlined in 11000 Death of a Client and its subsections.
  • Refers by phone all allegations that do not meet the criteria for an APS investigation to the appropriate law enforcement agency.
  • Investigates and provides protective services to other at-risk clients who live in the same location as the person who is deceased, as appropriate.

The APS specialist follows policies in 11000 Death of a Client and its subsections, as appropriate.

See:

11200 Client’s Death May Involve a Perpetrator

11100 Client’s Death Is Related to Natural Causes, Accident, or Self-Neglect

3420 Consent to Medical Procedures or Treatment

APS January 2022

APS does not have legal authority to consent to any medical procedure or treatment except in limited circumstances.

Do Not Resuscitate (DNR) and Removal of Life Support

DFPS has no legal authority to consent to a DNR or removal of life support.

The APS specialist does not investigate allegations in which the only need is to consent to one (or both) of the following:

  • A DNR order.
  • Removing life support.

Instead, the APS specialist informs people who report such situations, including hospital personnel, about the provisions in Sections 166.088(f) and 166.039 of the Texas Health and Safety Code that allow two physicians to issue these orders.

Consent to Medical Treatment

Hospitals

APS has the authority to give legal consent to medical treatment only when both of the following apply:

The APS specialist consults with the following people before giving consent to medical treatment when APS has invoked an EOPS to hospitalize a client:

  • Supervisor.
  • District director or designee.
  • Regional attorney (as needed).

APS has no legal authority to consent to medical treatment in any other situation.

Residential Care Facilities

APS does not investigate the need for consent to medical treatment of a person who lives in a residential care facility. These facilities include, but are not limited to, the following:

  • Nursing homes.
  • Assisted living facilities.
  • State supported living centers.
  • State hospitals.
  • Intermediate care facilities for individuals with intellectual disabilities (ICF-IID).

APS refers all other situations that involve a need for consent to medical treatment to the medical facility that would provide the treatment. The medical facility follows applicable laws and internal procedures to manage these situations.

See:

12630 Surrogate Decisions in Hospitals or Nursing Homes

12640 Surrogate Decisions in Licensed ICF-IID Facilities

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