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4500 Emergency Order for Protective Services (EOPS)

APS IH / May 2014

The Human Resources Code, (HRC) §48.208(b) provides that APS may request an order from a probate court to grant authorization to APS to take necessary actions to protect a client in a life-threatening, emergency situation. The court allows APS to take action even though the client is unable or unwilling to give consent, when the client lacks capacity to consent to or refuse services. The court order is known as an emergency order for protective services (EOPS), and is entitled Form 5000 Original Petition for Protection of an Elderly [Disabled] Person in an Emergency.

The EOPS is valid for 10 calendar days. The court, after notice and a hearing, may extend an emergency order for a period of not more than 30 days after the date the original emergency order for protective services would have expired. The court, after notice and a hearing where good cause is shown, may grant a second extension of an emergency order of not more than an additional 30 days (a total of 70 aggregate days). The court may not grant more than two extensions of the original emergency order. An extension order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the first succeeding business day. The court may modify or terminate the emergency order on petition of the department, the incapacitated person, or any person interested in the person’s welfare.

During the duration of an EOPS, APS acts as a surrogate decision maker for the client. Because this order impacts the client’s constitutional right of self-determination, the order may be granted only in limited circumstances outlined in HRC §48.208.

The Human Resources Code prescribes that APS obtains a court order before it takes any action. APS may petition the court for an emergency order of protective services if it is determined that:

  •  a client is suffering from abuse, neglect, or financial exploitation presenting a threat to life or physical safety;

  •  the person lacks the capacity to consent to receive protective services; and

  •  consent cannot be obtained from a spouse, relative, or guardian. 

See:

4130 Documentation of Legal Actions

4152 APS Legal Forms Online

4200 Court-Authorized Entry

4520 Authorization for Emergency Protective Services Before a Court Order Can Be Obtained

Texas Human Resources Code §48.208

4510 Procedures for Requesting an Emergency Order for Protective Services

APS-IH / February 2009

To request a petition for emergency protective services, the APS specialist must follow the procedures for consultation with the supervisor, regional attorney, and district director or designee outlined in 4120 General Procedures for Initiating Legal Actions.

All forms required for EOPS procedures are provided on the intranet under APS Legal Forms.

See 4152 APS Legal Forms Online.

4511 Completing a Motion for EOPS

APS-IH / February 2009

The APS specialist is responsible for fully stating the facts and observations in the body of the motion and order for an emergency order for protective services (EOPS), including:

  •   the nature of the abuse or neglect;

  •   how the abuse or neglect presents a threat to life or physical safety of the client;

  •   the evidence that shows the client lacks the capacity to consent to or refuse services;

  •   the services that are necessary to remove the threat to life or physical safety, including:

  •   removal of the client to safer surroundings; and;

  •   emergency or routine medical treatment; or

  •   other services as necessary; and

  •   a request for assistance from law enforcement, if needed; and

  •   a verification of the petition, sworn to before a notary, after approval by the attorney representing DFPS.

If a doctor’s statement has been obtained it is attached to the motion. In lieu of a doctor’s statement, a statement from another professional as outlined in 4513 Procedures When a Physician Is Not Available may be attached to the motion. All documents are then filed with the clerk.

4512 Pre-Removal Medical Assessment Report

APS-IH / February 2009

Before seeking an emergency order for protective services (EOPS), Human Resource Code (HRC) §48.208(b) provides that APS seek an opinion from a medical doctor stating whether the client lacks the capacity to consent to or refuse services. The form with the required language for completion by the doctor is Pre-Removal Medical Assessment Report (Exhibit A).

4513 Procedures When a Physician Is Not Available

APS IH / May 2014

If, after making a good faith effort, the APS specialist determines that a physician is unavailable to provide the medical report, the law provides that certain other professional assessments may be substituted. These include:

  •  an assessment of the client’s health status performed by a physician’s assistant or an advanced practice nurse not employed by DFPS. The APS specialist uses the Health Status Report to obtain this information;

  •  an assessment of the client’s psychological status performed by a licensed psychologist, master social worker, or licensed professional counselor not employed by DFPS, and who has training and expertise in issues related to abuse, neglect, and financial exploitation. The APS specialist uses the Psychological Status Report to obtain this information; or

  •  an assessment performed by a registered nurse and confirmed by a physician. The APS specialist uses the Nursing Assessment Report to obtain the nurse’s assessment which may then be used by the physician in completing his or her part of the Nursing Assessment Report.

The APS specialist ensures that the registered nurse knows the name of the physician who will receive the nursing report and how the nurse will communicate the information to the physician.

See:

4515 Post-Removal Physician’s Statement

4152 APS Legal Forms Online

Texas Human Resources Code §48.208

4514 Filing a Motion for EOPS Without a Physician’s or Other Professional’s Report

APS-IH / February 2009

In some situations there may not be a physician or other professional available to assess the client and support the APS specialist’s opinion. The law permits the judge to determine whether the APS specialist’s evidence is sufficient to support issuing an emergency order for protective services (EOPS) before removing a client. The APS specialist documents clearly why no medical or psychological assessment could be obtained.

In situations where the APS specialist provides emergency protective services before obtaining the medical report, the court must find that:

  •   an immediate danger to the health or safety of the client exists; and

  •   there is not sufficient time to obtain the medical report.

4515 Post-Removal Physician’s Statement

APS-IH / February 2009

If no physician’s statement was obtained before issuance of an emergency order for protective services (EOPS), the law mandates that a physician examine the client within 72 hours of removal. The specialist provides the Post-EOPS Physician’s Report form for this assessment. APS must file the Post-EOPS Physician’s Report with the court as soon as possible. This applies even if another type of professional assessment was obtained.

See:

4513 Procedures When a Physician Is Not Available

4514 Filing a Motion for EOPS Without a Physician’s or Other Professional’s Report

4516 Court Proceedings for EOPS

APS-IH / February 2009

After the process described in 4511 Completing a Motion for EOPS is complete, the attorney representing APS seeks an immediate hearing before the judge. This is called an ex parte hearing, because no prior notice is given to the client, which would allow the client to oppose the motion. Court procedures during an ex parte hearing vary by court; some judges will sign the order after reviewing the motion without asking the APS specialist to testify. Others may request testimony from the APS specialist.

Judges may appoint an attorney ad litem for the client before asking questions of the APS specialist. In this situation, the attorney ad litem is allowed to question the APS specialist. If no attorney ad litem is appointed during the hearing, the court must appoint one in the order. The court may also order law enforcement to assist APS in carrying out the EOPS. The signed court order becomes APS’s authority to act.

4520 Authorization for Emergency Protective Services Before a Court Order Can Be Obtained

APS IH / September 2011

If APS staff cannot obtain an order for emergency protective services because the court is closed on a Saturday, Sunday, legal holiday, or after 5 p.m., the specialist may remove a client to safer surroundings and authorize medical treatment and other services. The law also provides that the APS specialist may act without a supporting medical or psychological opinion in the case of an after-hours removal if necessary. The APS specialist should always try to obtain a physician’s or other professional’s report before providing emergency protective services even when there is no court order.

The specialist exercises this authority only when all of the following occur:

  •   The client is suffering from abuse or neglect presenting a threat to life or physical safety.

  •   The threat to life is imminent and the client is likely to suffer serious harm or death before the next business day unless protective services are provided.

  •   Behavioral and environmental factors indicate the client may lack the capacity to consent to receive protective services and no consent can be obtained.

  •   An emergency order under Human Resources Code (HRC) §48.208 cannot be obtained because the court is closed.

      AND

  •   The specialist has supervisory approval.

If a client is removed under this provision, APS staff must:

  •   clearly document step-by-step actions explaining why APS was unable to obtain a court order earlier in the day before courts closed or the action could not wait until the next business day to seek a court order; and

  •   obtain an emergency order no later than 4 p.m. on the next business day. When obtaining the emergency order, APS staff follow the procedures in 4120 General Procedures for Initiating Legal Actions, and 4510 Procedures for Requesting an Emergency Order for Protective Services. This process includes consulting with the regional attorney and obtaining a Pre-Removal Medical Assessment Report (Exhibit A) form.

When possible, the specialist must consult with the regional attorney before completing any legal action. The specialist should consult the regional attorney regarding removing a client without a court order. A county or district attorney representing APS may be unfamiliar with the requirements DFPS must meet as a result of past legal decisions by the U.S. Court of Appeals or their implications for DFPS employees.

See:

4120 General Procedures for Initiating Legal Actions

4140 Consultation With Regional Attorneys

4521 Requesting Emergency Assistance Without a Court Order

APS IH / September 2011

APS staff may have difficulty obtaining assistance with emergency removals without a court order unless immediate and serious risk of harm to the client is apparent. In these situations, it may be necessary to provide emergency medical personnel Form 5004 Notice of Removal and a copy of HRC §48.208(h) in order to demonstrate that APS can take action without a court order under certain circumstances.

When a Court Order Cannot Be Obtained

If, for any reason, a court order cannot be obtained before 4 p.m. the next business day, APS staff must cease providing protective services and, if necessary, make arrangements for the immediate return of the client to his or her residence, place of removal, or other suitable setting.

4522 Terminating Emergency Services on the Next Business Day

APS IH / September 2011

Obtaining an emergency order on the following business day is not required if APS staff cease providing protective services and, if applicable, make arrangements for the immediate return of the client to his or her place of residence, place of removal, or other suitable setting.

4523 Notifying the Regional Attorney of the Client’s Death

APS IH / September 2011

If a client is removed, but dies before the court order is obtained the next business day, the specialist notifies the regional attorney. The Legal Division determines whether more action is needed.

See:

2640 Alleged Victim Dies During the Investigation

3570 Client Dies During Service Delivery

4530 Termination or Expiration of a Court Order for Emergency Protective Services

APS IH / September 2011

The emergency order expires on whichever day comes first:

  •   the end of the 10th calendar day after the date the order is issued; or

  •   the end of the 10th calendar day after the date the client was removed to safer surroundings, if the client was removed when the court was closed and an order could not be obtained. See also 4520 Authorization for Emergency Protective Services Before a Court Order Can Be Obtained.

The order may expire or terminate at a different time if:

  •   the court extends the order past the initial 10-day period;

  •   the 10-day period ends on a Saturday, Sunday, or legal holiday, in which event the order is automatically extended to 4:00 p.m. on the next business day; or

  •   the physician’s medical report states that the client is physically or mentally able to consent to services or that the client is not suffering from abuse, neglect, or financial exploitation presenting a threat to life or physical safety.

Practice varies among courts, but many courts require that a full hearing on the emergency order for protective services (EOPS) be held on the day the order expires. This provides an opportunity for the attorney ad litem to question APS as to the actions taken before the EOPS was sought and about what has happened since. In addition, if no medical doctor’s assessment of the client was obtained before seeking the EOPS, this hearing gives both the judge and the attorney ad litem an opportunity to review the mandatory doctor’s assessment (Form 5001 Post-EOPS Physician’s Report) obtained not later than 72 hours after the time the provision of protective services begins.

The court may modify or terminate the emergency order on petition of DFPS, the incapacitated person (client), or any person interested in the person’s welfare.

4540 Extension of a Court Order for Emergency Protective Services

APS IH / May 2014

The law allows APS to ask the court for a 30-day extension of the initial 10-day EOPS, if the client’s safety requires it. The court may grant no more than two 30-day extensions past the original 10-day order (a total of 70 aggregate days). The motion to extend the EOPS may be granted only after a full hearing is held. In some cases, the court may choose to combine the 10-day hearing with the motion for extension hearing. If granted, the Motion and Order for Extension of EOPS (Form 5002) allows APS to continue to act as surrogate decision-maker for the client. An extension order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4:00 p.m. on the next business day.

The APS specialist may request an extension to:

  •  make arrangements for the immediate protection of the client, which could include facilitation of placement in a safe environment, medical assessment and treatment, or further psychological evaluation; and

  •  establish a service plan that will alleviate the state of abuse, neglect, or exploitation. This includes:

  •  attempts to locate family or friends who may be able to resolve the state of abuse, neglect, or financial exploitation,

  •  voluntary placement in a long-term care facility, or

  •  emergency referral to DADS for a guardianship assessment.

If a client’s home will be vacant as a result of an EOPS, the APS specialist notifies the appropriate law enforcement agency of the vacancy and requests that law enforcement monitor the residence to ensure the safety of the client’s property.

Texas Human Resources Code §48.208(i)

See:

4130 Documentation of Legal Actions

4700 Guardianship and its sub items

4500 Emergency Order for Protective Services

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