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5420 Due Process for Non-EMR Cases

APS IH / April 2017

APS does not release the findings Unable to Determine or Invalid to persons outside of DFPS, except as outlined in 5160 Release of Information to State Supported Living Centers (SSLC), 5424.21 Release of Findings on Investigations of Home and Community Support Services Agency (HCSSA) Staff and 5424.22 Release of Findings on Investigations of Foster Home Providers and Employees.

This section applies only when APS wants to release a finding of Valid outside DFPS, usually to a designated perpetrator's employer when the designated perpetrator is:

  •   not the perpetrator in a school investigation; or

  •   not eligible for inclusion in the Employee Misconduct Registry (EMR).

For policy related to the release of findings in cases involving school employees, see 5444 Administrative Review in School Personnel Cases. For policy related to cases involving EMR, see 5410 Employee Misconduct Registry (EMR).

Examples of Designated Perpetrators in Non-EMR Cases

Examples of designated perpetrators whose cases do not involve the EMR include, but are not limited to:

  •   licensed professionals, such as nurses, social workers, attorneys, and psychologists;

  •   employees of home and community support services agencies (HCSSAs) who do not hold a professional license and are not subject to inclusion in the EMR because their actions do not rise to the level of reportable conduct;

  •   a person who is privately hired and paid by the alleged victim or on behalf of the alleged victim to provide personal care services and who has other employment (such as at an HCSSA, a state-supported living center, a state hospital, or a home or community support services setting) that allows the perpetrator access to children or other vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation;

  •   a person who is a designated perpetrator for abuse, neglect, or financial exploitation against a family member and whose employment (such as at an HCSSA, a state-supported living center, a state hospital, or HCS settings) allows the perpetrator access to children or other vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation; and

  •   DADS guardianship specialists in their role as guardian for a person who is a ward of DADS. See 5100 Confidentiality, Disclosure, and Release of Case Information.

In these instances, APS must provide the designated perpetrator with complete due process before APS may release the investigation finding of Valid outside of DFPS.

To ensure that the designated perpetrator receives due process, the APS specialist follows a two-stage process that involves an administrative review and a release hearing.

Providing Due Process

Step 1: Administrative Review

The first step in providing due process for non-EMR cases is to offer the designated perpetrator an administrative review of the investigation findings.

An administrative review is an informal review conducted by an APS district director or designee. The administrative review is required before offering a release hearing to the designated perpetrator. See 5422 Administrative Review in Non-EMR Cases.

If the designated perpetrator is an employee of DADS who is acting as an agent for DADS Guardianship Services program, the administrative review is conducted by a reviewer from the DFPS region that conducted the investigation.

Step 2: Release Hearing

If the finding at the administrative review is upheld, the APS specialist offers the designated perpetrator a release hearing.

A release hearing is a formal due process hearing conducted by an administrative law judge (ALJ). If the ALJ upholds the finding on the allegation of abuse, neglect, or financial exploitation, then APS releases the findings outside of DFPS. See 5423.2 Release Hearing and Subsequent Activities in Non-EMR Cases.

Emergency Release of Findings Before Providing Due Process

If DFPS determines that a delay in releasing the findings will place persons age 65 or older or adults with disabilities in a state of or at risk of serious harm, DFPS may release the findings before offering due process to the designated perpetrator. The APS specialist notifies the EMR coordinator by email and includes the release of findings letter which was sent to the employer of the designated perpetrator.

See:

5424.3 Emergency Release of Findings in Non-EMR Cases

5424.31 Notice of Emergency Release of Findings to the Designated Perpetrator

5421 Sending Notice of Intent to Release in Non-EMR Cases

APS IH / April 2017

DFPS may release investigation findings of Valid outside DFPS as noted in Title 40 of the Texas Administrative Code (40 TAC §705.4101(c)(1)). These requirements have been incorporated in the form letter titled Notification of Intent to Release.

If APS is not going to release the findings of Valid to an outside entity, due process is not offered. See 5300 Desk Review for Designated Perpetrators.

Criteria for Notification of Findings

Upon completion of the investigation, the APS specialist must give written notification of the findings to each person designated as a perpetrator if:

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

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

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

DFPS Rules, 40 TAC §705.4101(c)(1)

The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the intent to release the findings unless DFPS determines that a more immediate form of written notification is required. This notification includes:

Notification of Intent to Release; and

Request for an Administrative Review

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

See also:

5420 Due Process for Non-EMR Cases

5424.3 Emergency Release of Findings in Non-EMR Cases

5424.31 Notice of Emergency Release of Findings to the Designated Perpetrator

5421.1 Timely Request for an Administrative Review in Non-EMR Cases

APS IH / June 2012

The request for an administrative review is addressed to the district director or designee for Adult Protective Services.

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

Regional staff may use discretion and wait 30 calendar days after the official notice is mailed by DFPS to receive a request, but must wait at least 23 calendar days. This ensures that adequate time for receipt and proper routing of the letter is included. The envelope received from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

If the request for an administrative review is received in a timely manner, the reviewer sends the perpetrator an Appointment Letter for Administrative Review outlining the date and time the review is to be held.

Request for an Administrative Review Is Not Received or Made Timely

If an administrative review is not requested within 20 calendar days after the official notice is mailed by DFPS, the APS specialist may release the information unless it has already been released as an emergency release.

If an emergency release has been made and no request is received for an administrative review, the APS specialist sends the perpetrator a notice confirming the emergency release.

See:

5424.2 Release of Findings in Non-EMR Cases

5424.3 Emergency Release of Findings in Non-EMR Cases

5421.11 Request for Records for an Administrative Review in Non-EMR Cases

APS-IH / November 2016

If the request for an administrative review indicates the perpetrator wants a copy of the case record, the district director or designee:

  •  requests a redacted copy of the case via OneCase by selecting administrative review as the request type;

  •  lists himself or herself as the caseworker in the contact information field; and

  •  requests the record be provided within 45 calendar days from the date the request is entered into OneCase.

The Entitlement Redaction Office (ERO) sends the reviewer a link to print the redacted case once it is available.

The reviewer mails the designated perpetrator a copy of the redacted case record.

5422 Administrative Review in Non-EMR Cases

APS IH / June 2012

The district director or designee for Adult Protective Services conducts the administrative review.

The reviewer must not have directly supervised the APS specialist or have been involved in the investigation. The review is conducted within 30 calendar days from the date the request by the perpetrator is received unless:

  •  the perpetrator requests the review be postponed because he or she has not received the case record yet; or

  •  court proceedings related to the abuse, neglect, or financial exploitation are pending at the time or are started after the review is requested.

If court proceedings are involved, APS postpones the review until the court proceedings are completed. DFPS makes a good faith effort to conduct the review within the 30 day timeframe. However, failure to do so in the given timeframe does not waive the hearing or reverse the finding.

See also 5421.1 Timely Request for an Administrative Review in Non-EMR Cases.

5422.1 Procedure for Administrative Review in Non-EMR Cases

APS IH / June 2012

At the administrative review, the perpetrator may:

  •  appear in person at the administrative review and may be accompanied by a representative;

  •  submit written material that is relevant to the case;

  •  have a certified interpreter provided by DFPS if the perpetrator does not speak English or is deaf, or may provide his or her own interpreter; or

  •  all of the above.

DFPS Rules, 40 TAC §705.4105(d)(1)

The perpetrator is responsible for any costs he or she may incur for the review, except for interpreter services provided by DFPS.

DFPS Rules, 40 TAC §705.4105(d)(2)

Formal rules of evidence are not applicable to the administrative review. The perpetrator may make statements, provide information, or ask questions. The perpetrator may bring statements from additional witnesses. No live testimony from witnesses other than from the perpetrator is accepted at this informal review. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.

Within 45 days of the administrative review, the reviewer:

  •  makes a decision to sustain, alter, or reverse the original APS findings based on the same requirements and criteria that APS specialists and supervisors use to conduct investigations and reach conclusions;

  •  creates an Administrative Review of Investigations (ARI) stage by selecting the closed Investigation stage of the case and the name of the perpetrator being reviewed;

  •  documents the review and decision on the Administrative Appeal and Review page found under the Record Admin Review/Appeal tab in the Administrative Review of Investigation (ARI) stage; and

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

Steps for creating and completing an ARI stage in the IMPACT case management system can be found in IMPACT FYI.

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

In the administrative review process, the reviewer and the district director or designee take the following steps.

If administrative review findings were:

Was an emergency release made?

Then the APS district director or designee sends:

Was a release hearing requested within 20 calendar days?

Sustained

No

Alleged perpetrator (AP) – Administrative Review Findings form and Request for a Release Hearing form.

Yes – State office sends the Request for Release Hearing form (if returned by the perpetrator) and a copy of review findings to the Office of General Counsel, Director of Administrative Hearings at MC Y-956, with a cc: to the program administrator, supervisor and specialist.

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

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

Sustained

Yes

AP – same as above

Yes – The reviewer sends release hearing request and copy of review findings to the Office of General Counsel, Director of Administrative Hearings at MC Y-956.

No - The reviewer sends all others notified during emergency release (employer, licensing board, and so on) the Final Letter of Due Process.

Altered or reversed

No

AP – Administrative Review Findings form

N/A

Altered or reversed

Yes

AP – Administrative Review Findings form

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

N/A

5423 Conducting Release Hearings for Non-EMR Cases

5423.1 Receipt or Non-Receipt of Request for a Release Hearing in Non-EMR Cases

APS IH / June 2012

If a perpetrator does not agree with the administrative review findings, he or she must request a release hearing by mailing the Request for a Release Hearing form back to APS.

The request for the release hearing must be addressed to the:

      Associate Commissioner of Adult Protective Services
MC E-561
Texas Department of Family and Protective Services
P.O. Box 149030
Austin, Texas 78724-9030

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

If a hearing is not requested within 20 calendar days after the official notice is mailed by DFPS, the district director or designee releases the findings as outlined in 5424.2 Release of Findings in Non-EMR Cases. Regional staff may use discretion and wait 30 calendar days after the official notice is mailed by DFPS to receive a request. This ensures that adequate time for receipt and proper routing of the letter is included. The envelope received from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

See FYI resources:

Administrative Review and Appeal Page

Create an Administrative Review Stage

Record Administrative Review and Appeal (APS In-Home and APS Facility Investigations)

5423.2 Release Hearing and Subsequent Activities in Non-EMR Cases

APS-IH / February 2009

The release hearing is conducted by the state office of administrative hearings (SOAH). The director of administrative hearings in the Office of General Counsel appoints an attorney to represent DFPS and seek a hearing date from SOAH. The attorney has authority over the manner and substance of the presentation of the DFPS case.

The hearing is held in the region responsible for the investigation, unless the ALJ determines that good cause exists for moving the hearing.

At any time before the conclusion of the hearing, the case may be informally disposed of by withdrawal, default, settlement, or other actions by DFPS staff.

If the ALJ sustains the APS findings, the district director for Adult Protective Services, in coordination with the regional attorney, approves the manner and content of the release of data.

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

The district director or designee documents the outcome in the Administrative Review of Investigation (ARI) stage according to administrative review procedures. See 5422 Administrative Review in Non-EMR Cases.

See IMPACT FYI Resources:

FYI Administrative Review and Appeal Page

FYI Create an Administrative Review Stage

FYI Record Administrative Review and Appeal (APS In-Home and APS Facility Investigations)

See also 5424.2 Release of Findings in Non-EMR Cases.

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