Previous Page Next Page

15000 Due Process and Release of Information

15100 Desk Review

APS August 2021

When APS validates an allegation of abuse, neglect, or financial exploitation against a designated perpetrator, including a minor, APS notifies the designated perpetrator of the findings and offers a desk review. This does not include self-neglect allegations or findings of Valid-No Fault.

The desk review is an informal review of Valid findings that the program administrator or designee conducts when APS does not intend to release the findings outside DFPS. The designated perpetrator is not present during the desk review.

The outcome of the desk review is final and cannot be appealed. Valid findings sustained through the desk review process may not be released outside DFPS, except as outlined in 15170 Release of Findings Outside DFPS After a Desk Review.

When the designated perpetrator is a DFPS employee, volunteer, or intern, APS gives him or her the option of an expedited desk review as outlined in 15200 Expedited Desk Review Involving DFPS Employees and subitems.

See 15300 Employee Misconduct Registry (EMR).

15110 Designated Perpetrators Ineligible for a Desk Review

APS February 2021

Some designated perpetrators are not eligible for a desk review but may be eligible for other types of reviews or hearings. This includes perpetrators who are any of the following:

A designated perpetrator may also be ineligible for a desk review if any of the following apply:

  • The APS specialist was unable to locate the designated perpetrator during the investigation, despite reasonable efforts to do so.
  • APS determined during the investigation that interviewing the designated perpetrator would place the client at risk of harm.
  • Notifying the designated perpetrator of the finding would place the client, the reporter, or any other person who participated in the investigation at risk of serious physical or emotional harm.
  • Notifying the designated perpetrator would make it impossible to provide services to the client.

Law enforcement or prosecuting attorneys may ask APS to delay the notification because of a pending criminal investigation or court proceeding.

15120 Notifications to the Designated Perpetrator

APS February 2021

Upon completion of the investigation and supervisor approval in IMPACT, the APS specialist notifies the designated perpetrator of the following:

  • The findings of the investigation are valid.
  • He or she is eligible to request a desk review.

The APS specialist sends the notification by certified mail, return receipt requested, and includes both of the following forms:

Form 2248 Notice of Findings to Designated Perpetrator

Form 2249 Request for a Desk Review

If APS does not know the designated perpetrator’s current mailing address, the APS specialist mails the forms to the designated perpetrator’s last known address.

If the designated perpetrator is a minor, the APS specialist mails the forms to the minor’s parent or legal guardian.

The APS specialist documents that he or she sent the notification by entering the notice of findings (Form 2248) and the return receipt in IMPACT on the External Documentation page, as outlined in 16220 Maintenance of External Case Files.

When No Notification Is Needed

No notification to the designated perpetrator is needed if the APS specialist, in consultation with the supervisor, concludes that any of the following apply:

  • APS cannot locate the designated perpetrator.
  • APS should not notify the designated perpetrator.
  • APS must delay notification because of a request by law enforcement or a prosecuting attorney.

If APS does not notify a designated perpetrator because of risk of harm to the client, reporter, or a collateral, the specialist documents a clear explanation of that risk in the supervisor consultation in IMPACT.

15130 Timely Request for a Desk Review

APS February 2021

The designated perpetrator’s request for a desk review must be postmarked within 20 calendar days after DFPS mailed the official notice of findings (Form 2248 Notice of Findings to Designated Perpetrator). If the request is not postmarked within 20 calendar days, the designated perpetrator has forfeited the right to a desk review.

The regional staff must wait at least 23 calendar days and may wait up to 30 calendar days after DFPS mailed the official notice of findings before considering the request for a desk review forfeited. This allows enough time for DFPS to receive the request and route it to the proper APS staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

15140 Desk Review Process

APS February 2021

The program administrator or designee completes the desk review. The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.

The reviewer examines the entire case record and any external documentation. The reviewer may seek additional information from the APS specialist and supervisor involved in the case.

If the reviewer determines the investigation is incomplete, the reviewer does as follows:

  • Postpones the desk review.
  • Directs the APS specialist to request a data correction to reopen the Investigation stage for further investigation.

If the investigation is complete, the reviewer decides 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. The reviewer notifies the designated perpetrator of the outcome of the desk review by mailing Form 2263 Notification of Result of a Desk Review.

A desk review can occur even if the case is closed. However, the case may remain open if the investigation has progressed to Maintenance or Intensive Case Services.

Time Frame for Conducting the Desk Review

The reviewer completes the desk review and notifies the designated perpetrator of the outcome within 45 calendar days of receiving the request from the designated perpetrator, unless one of the following applies:

  • Court proceedings related to the abuse, neglect, or financial exploitation are in progress at the time the desk review is requested.
  • Court proceedings are started after the review begins.
  • The reviewer determines the investigation is incomplete and further investigation is necessary.

If court proceedings are involved, APS postpones the review until the court proceedings are completed.

DFPS makes a good faith effort to complete the review within the 45-day time frame. However, failure to do so within that time frame does not cancel the review or reverse the finding.

See 15160 Notification of Results of the Desk Review.

Notification of Delay of the Desk Review

If the review is delayed, the reviewer notifies the perpetrator in writing within 45 calendar days after APS received the request. The notification includes one of the following:

  • The reason for the delay and the anticipated length of time of the delay.
  • A statement that the designated perpetrator may notify APS when the court case has been completed or the criminal investigation has been closed, as appropriate.

If court proceedings are involved, the notification must also indicate that the reviewer will review the designated perpetrator’s eligibility for a review after the delay. The designated perpetrator becomes ineligible for a review after a delay only when a court makes a ruling against the designated perpetrator that is consistent with abuse, neglect, or financial exploitation related to the specific allegation for which the review was requested. Otherwise, APS must provide the review.

Example

John Smith is a designated perpetrator of physical abuse and is being prosecuted for aggravated assault. The desk review is delayed until the criminal case is complete and the judge makes a ruling. If Mr. Smith is convicted of assault, he will not receive a desk review on the physical abuse allegation because the court already found him guilty.

Documentation of the Desk Review

Within 45 days of receiving the perpetrator’s request for a desk review and any additional information that the designated perpetrator provides, the reviewer does the following:

  • Creates an Administrative Review of Investigation (ARI) stage in IMPACT by choosing the closed Investigation (INV) stage of the case and then choosing the name of the designated 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 ARI stage.
  • Updates the reason for closing the investigation (the closure reason), if appropriate.

15150 Closure of a Case in Service Delivery After a Desk Review

APS February 2021

The procedure for closing a case after a desk review varies depending on the outcome of the review and whether the allegations were validated, as described in the table below.

Outcome of Desk Review

APS Specialist’s Actions

The findings were altered or reversed, and there are no Valid self-neglect allegations.

  • Requests a data correction to add an allegation of self-neglect.
  • Completes all required tasks before closing the Maintenance or Intensive Case Services stage.

One or more findings were sustained.

Completes all required tasks before closing the Maintenance or Intensive Case Services stage.

See 15160 Notification of Results of the Desk Review.

15160 Notification of Results of the Desk Review

APS February 2021

Within 45 calendar days after receiving the request for a desk review, the reviewer sends the designated perpetrator Form 2263 Notification of Result of a Desk Review to inform him or her of the outcome of the desk review. The outcome is final and cannot be appealed. The findings of the case and outcome of the desk review are not released outside DFPS, except as outlined in 15170 Release of Findings Outside DFPS After a Desk Review.

If the desk review involved an alleged victim who has a guardian or a pending guardianship and the reviewer altered or reversed the findings, the APS specialist sends the Notification to Court of Desk Review Findings to notify the court about the alteration or reversal of the findings.

See 16124.1 Court Notification About an Investigation Involving Guardianship.

15170 Release of Findings Outside DFPS After a Desk Review

APS February 2021

In some situations, APS may release findings outside DFPS after the findings are validated and sustained through the desk review process.

If APS determines the findings need to be released outside DFPS, APS must first offer the designated perpetrator a release hearing that provides due process, as outlined in 15200 Due Process for Non-EMR (Employee Misconduct Registry) Cases.

See:

15220 Notification of Intent to Release Findings in Non-EMR Cases

15240 Release Hearings for Non-EMR Cases

16126.1 Release of Information on Applicants to Become AFC Providers

15200 Expedited Desk Review for DFPS Employees

APS August 2021

A request for an expedited desk review must be made in a timely manner. The following people are eligible for an expedited desk review when APS makes a Valid finding of abuse, neglect, or financial exploitation against him or her:

  • DFPS employee.
  • DFPS intern.
  • DFPS volunteer.
  • Single Source Continuum Contractor (SSCC) employee.

This request must be made in a reasonable timeframe. See operating policy HR-3101 Abuse, Neglect, or Exploitation Allegations Against DFPS Employees on the DFPS intranet for additional information.

The desk review is an informal review of the Valid findings against the designated perpetrator. The designated perpetrator may submit any additional information they would like considered during the review but is not present during the review.

The outcome of the review is final and cannot be appealed. The findings are not released outside DFPS except as outlined in 15170 Release of Findings Outside DFPS After a Desk Review. The desk review is not a due process hearing. The designated perpetrator’s role in IMPACT is not changed to a sustained perpetrator as a result of the desk review.

15210 Notification of Findings to a DFPS Employee

APS August 2021

Upon reaching a disposition (finding) for each allegation, the APS specialist notifies his or her supervisor by email and includes a draft of the Notice of Findings to DFPS Employee as Designated Perpetrator letter (Form 2271). The supervisor reviews the investigation to determine whether it was thorough and the findings are correct.

The supervisor documents his or her review as a supervisor consultation as outlined in 9600 Supervisor Consultations. The consult includes the following, as applicable:

  • Whether the APS specialist has approval to send the notification to the designated perpetrator.
  • Whether additional investigation contacts are needed.
  • Whether additional evidence is needed.
  • Whether the finding is appropriate or should be changed.

If the supervisor does not approve the notification to the designated perpetrator, the APS specialist completes any additional case actions required by the supervisor. The APS specialist emails the supervisor to request that the supervisor do the following:

  • Review the case to ensure all tasks are complete.
  • Review the completed notification letter (Form 2271).
  • Enter a new contact documenting his or her review.

Once the notification letter (Form 2271) is reviewed and approved by the supervisor, the APS specialist notifies the designated perpetrator of the following:

  • The investigation finding of Valid.
  • His or her eligibility for an expedited desk review.

The APS specialist sends the notification to the designated perpetrator using both of the following methods:

  • Certified mail, return receipt requested, to the designated perpetrator’s home address.
  • The designated perpetrator’s DFPS email with read receipt requested.

If the designated perpetrator is a volunteer, including an SSCC employee, the email is sent to his or her personal email, with read receipt requested.

The notification includes both the following forms:

When the designated perpetrator is an SSCC contractor, the APS specialist notifies the CPS Purchase Client Services Director by email and copies the APS specialist’s supervisor and program administrator.

15220 Timely Request for an Expedited Desk Review

APS August 2021

The designated perpetrator’s request for an expedited desk review must be received within two (2) business days after DFPS mails the official notice of findings (Form 2271) or the date of the email read receipt (when the perpetrator has a DFPS email), whichever is earlier. If the request is not made within the timeframe, the designated perpetrator may still request a standard desk review (same criteria as non-employees) within 20 calendar days after the notification was mailed.

If the designated perpetrator does not request an expedited desk review within the two business days, his or her DFPS manager takes appropriate personnel action which may include reassignment or dismissal.

If the designated perpetrator makes the timely request for a standard desk review, the APS specialist follows 15100 Desk Review and its subitems. If the designated perpetrator chooses this option, the finding of the investigation may change, but the review will not alter any personnel action that has been taken.

Timeframe for Conducting the Expedited Review

Only the district director or program administrator may complete expedited desk reviews. The reviewer completes the review within three (3) business days of receiving a timely request for the expedited desk review. If additional time is needed to complete the desk review, the reviewer notifies the APS associate commissioner or designee and requests approval.

Delay of an Expedited Desk Review

If, after reviewing the entire case, including external documentation, the reviewer determines that further investigation is needed before the review can be completed, the reviewer requests approval from the APS associate commissioner or designee.

The reviewer must contact the designated perpetrator about the delay due to the need for further investigation using any of the following methods:

  • Phone.
  • Certified mail with return receipt requested.
  • DFPS email with read receipt requested.

If the designated perpetrator is a volunteer, the email is sent to his or her personal email, with read receipt requested (when the perpetrator has a DFPS email).

The reviewer is responsible for gathering any additional information needed to reach a decision regarding any Valid allegations against the designated perpetrator. The reviewer does not conduct a new investigation but may direct the district to reopen the investigation to gather additional information.

Review Responsibilities After the Expedited Desk Review

Within five (5) calendar days of the review, the reviewer is responsible for all the following:

  • Making the decision to sustain, alter, or reverse the original findings.
  • Sending the designated perpetrator the Notification of Results of a Desk Reviewing (Form 2263) using both of the following methods:
    • Certified mail with return receipt requested.
    • DFPS email with read receipt requested. If the designated perpetrator is a volunteer, the email is sent to his or her personal email, with read receipt requested.
  • Notifying the designated perpetrator’s DFPS supervisor by email, read receipt requested, of the outcome of the review. The email includes a copy of Form 2263.
  • Documenting the review and decision in IMPACT (see document titled Creating and Completing an ARI Stage in an In-Home Investigation on the DFPS intranet.
  • If applicable, notifying a probate court of the change of finding if notice was sent during the investigation because the victim has a guardian or a pending guardianship as outlined in 16124.5 Court Notification About Cases Involving a Desk Review.

15230 Consequences of Expedited Desk Review Dispositions

APS August 2021

Valid Disposition

A DFPS employee with a Reason to Believe (RTB) (CPI) or Valid (APS) disposition may be recommended for adverse personnel action, including termination. Before making a personnel recommendation, the employee’s supervisor will make an individualized assessment based on both of the following:

  • Current job responsibilities of the employee.
  • Nature of the RTB or Valid allegations.

As with any personnel action, the DFPS employee’s manager will consult with DFPS Legal and Human Resources and follow all applicable personnel policies before taking action.

Unable to Determine Disposition

A DFPS employee with an Unable to Determine disposition may be recommended for adverse personal action, including termination, depending on the circumstances. The employee’s manager reviews the investigation conclusion and consults with DFPS Legal and Human Resources, as applicable.

15300 Due Process for Non-EMR (Employee Misconduct Registry) Cases

APS February 2021

To make sure the designated perpetrator receives due process, the APS specialist follows a two-stage process that includes the following:

  • An administrative review
  • A release hearing

Release of Findings in Non-EMR Cases

DFPS may release investigation findings outside DFPS as noted in Title 40 of the Texas Administrative Code, §705.1301.

Valid

Due process for non-EMR cases applies only when APS wants to release a finding of Valid outside DFPS (usually to a designated perpetrator’s employer or professional board). If APS is not going to release the finding of Valid to an outside entity, APS does not offer due process, but follows policy 15100 Desk Review.

This only applies when the designated perpetrator is not one of the following:

Unable to Determine or Invalid

APS does not release findings of Unable to Determine or Invalid to anyone outside DFPS, except as outlined in the following policies:

15251 Release of Findings to HCSSAs and Adult Foster Care Homes

15252 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies

16127.1 Release of Information to State Supported Living Centers (SSLC)

Designated Perpetrators in Non-EMR Cases

Examples of designated perpetrators include, but are not limited to, the following:

  • Licensed professionals, such as nurses, social workers, attorneys, and psychologists.
  • Certified legal guardians not employed by the Health and Human Services Commission (HHSC).
  • Employees of home and community support services agencies (HCSSAs) who are not subject to placement on the EMR because their actions do not rise to the level of reportable conduct.
  • HHSC guardianship specialists in their role as guardian for a person who is a ward of the HHSC Office of Guardianship Services (OGS). See 16100 Disclosure and Release of Case Information.
  • Family members or others with an ongoing relationship with a victim who lives in a residential care setting, such as a nursing home, assisted living facility, or state supported living center.
  • People who have employment (such as at a HCSSA, a state supported living center, a nursing home, or a state hospital) that gives them access to children or vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation.
  • People to whom both of the following apply:
    • The person is privately hired and paid by the alleged victim, or on behalf of the alleged victim, to provide personal care services.
    • The person has other employment that allows him or her access to children or vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation.

Due Process

The APS specialist begins the process by doing as follows:

  • Notifying the designated perpetrator that DFPS intends to release the findings.
  • Offering the designated perpetrator an administrative review.

If the designated perpetrator is an employee of HHSC OGS who is acting as an agent for HHSC OGS, a reviewer from the DFPS region that conducted the investigation conducts the administrative review.

DFPS may complete an emergency release of findings before offering due process to the designated perpetrator if DFPS determines that delaying the release would put vulnerable adults or children in a state of serious harm.

See:

15210 Emergency Release of Findings in Non-EMR Cases

15230 Administrative Review in Non-EMR Cases

15240 Release Hearings for Non-EMR Cases

15310 Emergency Release of Findings in Non-EMR Cases

APS February 2021

For the purposes of this section and its subitems, an emergency is defined as abuse, neglect, or financial exploitation which, without immediate intervention, would result in a child, an adult with a disability, or an adult age 65 or older being in a state of, or at risk of, serious harm.

DFPS Rules, 40 TAC §705.1301(1)

APS may release findings outside DFPS before completing the release hearing if DFPS determines that delaying the release would create an emergency because the designated perpetrator will have continuing access to vulnerable adults or children. The APS specialist consults with the supervisor or subject matter expert, and regional attorney, if appropriate, to determine whether an emergency release is allowed or required.

When APS releases a finding of Valid to a state supported living center, the release is considered an emergency. See 16127.1 Release of Information to State Supported Living Centers (SSLC).

If an emergency release is necessary, APS uses Form 2241 Emergency Release of Findings to notify the employer or other entity that is allowing the designated perpetrator access to vulnerable adults or children. The form outlines the following:

  • DFPS’s belief that an emergency exists and that immediate intervention is needed to prevent serious harm to vulnerable adults or children.
  • The designated perpetrator’s right to appeal an investigation finding.
  • The fact that APS will notify the entity if, as a result of an appeal, APS alters or reverses the finding.

If a delay in notifying the entity would create an emergency, APS does not have to send written notification to the designated perpetrator before the release. However, the designated perpetrator is entitled to receive written notification as soon as possible and has the right to appeal the findings.

See:

Notice to Designated Perpetrator of Emergency Release of Findings, below in this section

15250 Release of Findings in Non-EMR Cases

Emergency Release of Findings Involving HCSSAs and Adult Foster Care Homes

If an emergency exists in investigations involving HCSSAs, adult foster care homes, or their employees, APS releases findings before completing the administrative review or release hearing process.

The APS specialist sends Form 2241 Emergency Release of Findings to both of the following:

  • HHSC Long-Term Care Regulatory Services
    PO Box 149030
    Mail Code E-342
    Austin, Texas 78714-9030
  • The HCSSA or adult foster care provider, as appropriate.

See:

15232 Conducting an Administrative Review in Non-EMR Cases

15250 Release of Findings in Non-EMR Cases

Notice to Designated Perpetrator of Emergency Release of Findings

The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the emergency release of findings to the designated perpetrator’s employer or other entity. This notification includes both of the following:

Emergency Release Notification

Form 2265 Request for an Administrative Review of Valid APS Findings

See:

15220 Notification of Intent to Release Findings in Non-EMR Cases

15241 Notification of Judge’s Decision

15250 Release of Findings in Non-EMR Cases

15320 Notification of Intent to Release Findings in Non-EMR Cases

APS February 2021

Upon completion of the investigation, the APS specialist gives written notification of the findings to each person designated as a perpetrator when all of the following apply:

  • APS has validated one or more allegations of abuse, neglect, or financial exploitation by the designated perpetrator.
  • APS will release the findings outside DFPS to an employer or other entity that allows the designated perpetrator access to the client or other vulnerable adults or children.
  • The designated perpetrator, as a result of the release, may be denied a right or privilege, such as employment, licensure, or certification.

DFPS Rules, 40 TAC §705.1305(a)

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 method of written notification is required. This notification includes both of the following:

Form 2204 Notification of Intent to Release

Form 2265 Request for an Administrative Review of Valid APS Findings

If APS does not know the designated perpetrator’s mailing address, the APS specialist mails the notification to him or her in care of the employer.

See:

15200 Due Process for Non-EMR (Employee Misconduct Registry) Cases

15210 Emergency Release of Findings in Non-EMR Cases

15330 Administrative Review in Non-EMR Cases

APS February 2021

The first step of due process is to offer the designated perpetrator an administrative review of the investigation findings. An administrative review is an informal review that an APS district director or designee conducts. The administrative review is required before APS offers a release hearing to the designated perpetrator.

15331 Requesting an Administrative Review in Non-EMR Cases

APS February 2021

The designated perpetrator uses Form 2265 Request for an Administrative Review of Valid APS Findings to request an administrative review and addresses it to the district director or designee. The request for an administrative review must be postmarked within 20 calendar days after the APS specialist mailed the official notice of findings (Form 2248 Notice of Findings to Designated Perpetrator) or the perpetrator forfeits the right to the administrative review.

If APS does not receive the request for an administrative review within 23 calendar days after the official notice was mailed, the APS specialist may release the information unless it was already released as an emergency release.

See Notice to Designated Perpetrator of Emergency Release of Findings in 15210 Emergency Release of Findings in Non-EMR Cases.

The regional staff may choose to wait 30 calendar days after DFPS mailed the official notice to receive a request but must wait at least 23 calendar days. This allows enough time for DFPS to receive the request and route it to the proper APS staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

If APS receives the request for an administrative review in a timely manner, the reviewer sends the perpetrator an Appointment Letter for Administrative Review stating the date and time of the review.

If APS has made an emergency release and does not receive a request for an administrative review, the APS specialist sends the Final Letter of Due Process to the perpetrator and any person or entity to which APS sent the emergency release.

See:

15250 Release of Findings in Non-EMR Cases

15252 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies

Request for Records

If the request for an administrative review is received in a timely manner and indicates the designated perpetrator wants a copy of the case record, the district director or designee does the following:

  • Requests a redacted copy of the case through OneCase by choosing Administrative Review as the Request Type.
  • Lists himself or herself as the caseworker in the contact information fields.
  • Requests that the Entitlement Redaction Office (ERO) provide the record within 45 calendar days from the date the request is entered in OneCase.

The ERO sends the reviewer a link to print the redacted case record once it is available.

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

15332 Conducting an Administrative Review in Non-EMR Cases

APS February 2021

The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.

The review occurs within 30 calendar days from the date APS receives the perpetrator’s request unless court proceedings related to the abuse, neglect, or financial exploitation are in progress 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.

APS makes a good faith effort to conduct the review within the 30-calendar-day time frame. However, failure to do so does not cancel the review or reverse the finding.

If the designated perpetrator is an employee of HHSC who is acting as an agent for HHSC OGS, a reviewer from the APS region that conducted the investigation conducts the administrative review.

See 15231 Requesting an Administrative Review in Non-EMR Cases.

At the administrative review, the designated perpetrator may do any or all of the following:

  • Appear in person, with or without a legal representative.
  • Submit written material that is relevant to the case.
  • Have DFPS provide a certified interpreter if the perpetrator does not speak English or has a hearing impairment, or provide his or her own interpreter.

DFPS Rules, 40 TAC §705.1307(a)

The designated perpetrator pays any costs he or she may incur for the review, except for interpreter services that DFPS provides.

DFPS Rules, 40 TAC §705.1307(b)(1)

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

Actions After the Administrative Review

Within 45 calendar days after the administrative review, the reviewer does the following:

  • Decides 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 Investigation (ARI) stage by choosing the closed Investigation stage of the case and the name of the designated 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 ARI stage.
  • Updates the investigation closure reason, if appropriate.

For more detailed steps on creating and completing an ARI stage in IMPACT, see Creating and Completing an ARI Stage in an In-Home Investigation on the DFPS intranet.

The reviewer refers to the table below to complete the administrative review process.

Outcome of Administrative Review

Did APS make an emergency release?

Actions by APS District Director or Designee

Additional Actions if the Perpetrator Requested a Release Hearing Within 20 Calendar Days After the Administrative Review

Additional Actions if the Perpetrator Did Not Request a Release Hearing Within 20 Calendar Days After the Administrative Review

Sustained

No

Sends the alleged perpetrator (AP) the Administrative Review Findings form and Request for a Release Hearing form.

  • If the AP sends the Request for a Release Hearing to state office, state office forwards it, with a copy of the review findings, to the director of administrative hearings in the Office of General Counsel (mail code Y-956) and copies the program administrator, supervisor, and APS specialist.
  • If the AP sends the request directly to the regional office, the regional office forwards it to the Office of General Counsel as outlined above.

The reviewer sends the Request for a Release Hearing to the appropriate person or entity.

Sustained

Yes

Sends the alleged perpetrator (AP) the Administrative Review Findings form and Request for a Release Hearing form.

The reviewer sends the Request for a Release Hearing and a copy of the review findings to the director of administrative hearings in the Office of General Counsel (mail code Y-956).

The reviewer sends all others notified during the emergency release (people and entities) the Final Letter of Due Process.

Altered or Reversed

No

Sends the AP the Administrative Review Findings form.

N/A

N/A

Altered or Reversed

Yes

N/A

N/A

15340 Release Hearings for Non-EMR Cases

APS February 2021

If the administrative review sustains the finding, then, as the second step of due process, APS 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 judge sustains the finding of abuse, neglect, or financial exploitation, then APS releases the finding outside DFPS. See Conducting a Release Hearing, below.

Requesting a Release Hearing

If a designated perpetrator does not agree with the outcome of the administrative review, he or she requests a release hearing by mailing the Request for a Release Hearing form to APS.

The designated perpetrator sends the request to the following address:

Texas Department of Family and Protective Services
Associate Commissioner of Adult Protective Services
Mail Code E-561
PO Box 149030
Austin, Texas 78714

The request must be postmarked within 20 calendar days after APS mailed the official notice of the outcome of the administrative review, or the designated perpetrator forfeits his or her right to a release hearing. The APS staff may choose to wait 30 calendar days after APS mailed the official notice to receive a request but must wait at least 23 calendar days. This allows enough time for APS to receive the request and route it to the proper staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date APS mailed the official notice.

If the request is timely, the reviewer sends the Request for a Release Hearing form (if the designated perpetrator returned it) and a copy of the findings of the administrative review to the director of administrative hearings in the Office of General Counsel at mail code Y-956. The reviewer sends a courtesy copy to the program administrator, supervisor, and APS specialist. If the designated perpetrator sends the request directly to the regional office, the regional staff forwards the request to the Office of General Counsel as outlined above.

If the designated perpetrator does not request a release hearing within 20 calendar days after APS mails the official notice, the district director or designee releases the findings as outlined in 15250 Release of Findings in Non-EMR Cases.

If the designated perpetrator does not request a release hearing for an emergency release, the reviewer sends the Final Letter of Due Process to all people and entities notified during the emergency release (such as an employer and licensing board), except the designated perpetrator.

Conducting a Release Hearing

An ALJ in the State Office of Administrative Hearings (SOAH) conducts the release hearing. 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 how DFPS presents the case and what it includes.

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

At any time before the conclusion of the hearing, DFPS may informally dispose of the case by withdrawing it, failing to participate in it, settling it, or other actions.

The district director or designee documents the outcome of the hearing in the Administrative Review of Investigation (ARI) stage, according to the procedures for documenting an administrative review.

See 15250 Release of Findings in Non-EMR Cases.

15341 Notification of Judge’s Decision

APS February 2021

If the ALJ does not find that a preponderance of the evidence shows abuse, neglect, or financial exploitation or finds that APS has designated the incorrect person as the designated perpetrator, APS changes the designated perpetrator’s designation to conform to the judge’s determination.

If the ALJ sustains the APS findings, the district director, in coordination with the regional attorney, approves the manner and content of the release of information.

The ALJ sends a copy of the decision to the designated perpetrator or his or her representative, the EMR coordinator, and the attorney representing DFPS. The attorney then sends the decision to the district director or designee.

The district director or designee does the following:

  • Documents the final decision in the Administrative Review of Investigation (ARI) stage.
  • Updates the designated perpetrator’s status in IMPACT, if appropriate.
  • Determines and approves the manner, timing, and content of the release of information, in coordination with the regional attorney.
  • Files the ALJ’s decision in the external case file.

15350 Release of Findings in Non-EMR Cases

APS February 2021

Once due process is complete and the finding is sustained, APS may release the finding to either, or both, of the following:

  • The designated perpetrator’s employer.
  • Anyone else who allows the designated perpetrator access to vulnerable adults or children.

Before disclosing case information or investigation findings to other people or entities, the APS specialist refers to 16100 Disclosure and Release of Case Information.

Content of Release of Findings

The APS specialist sends the Release of Findings to the designated perpetrator’s employer or other entities in a timely manner.

This form includes the following information:

  • Name of the designated perpetrator.
  • Nature and seriousness of the valid allegations.
  • Names of the victims of maltreatment, if appropriate.

If this release is the final release after an emergency release of the findings, the APS specialist also sends the Final Letter of Due Process, which outlines the following:

  • Due process has been offered or provided.
  • The findings have or have not been altered or reversed.

See:

8400 Referrals to Law Enforcement

15230 Administrative Review in Non-EMR Cases

15232 Conducting an Administrative Review in Non-EMR Cases

15250 Release of Findings in Non-EMR Cases

15252 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies

15351 Release of Findings to HCSSAs and Adult Foster Care Homes

APS February 2021

If the outcome of the non-EMR due process is to release the investigation findings, the APS specialist sends the Release of Findings to HHSC and to whichever of the following applies:

  • Director or administrator of the home and community support services agency (HCSSA).
  • Unlicensed adult foster home provider.

The specialist may submit the findings to HHSC by email or mail, as follows:

The APS specialist documents this notification in IMPACT and files a copy of the form in the external case file.

If this release is the final release after an emergency release of the findings, the APS specialist also sends the Final Letter of Due Process, which outlines the following:

  • Due process has been offered or provided.
  • The findings have or have not been altered or reversed.

Findings Other Than Valid

If the allegations of abuse, neglect, or financial exploitation have findings of Invalid, Unable to Determine, or Other, a release hearing is not required. The APS specialist may inform an employer or licensing agency of these findings upon completion of the investigation. This notification may be verbal or written.

See:

15200 Due Process for Non-EMR (Employee Misconduct Registry) Cases

15210 Emergency Release of Findings in Non-EMR Cases

15232 Conducting an Administrative Review in Non-EMR Cases

15250 Release of Findings in Non-EMR Cases

16126.1 Release of Information on Applicants to Become AFC Providers

15352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies

APS February 2021

Licensing Boards and Other Agencies

APS may release findings (Valid, Invalid, Unable to Determine, Other) of its investigations to the following, in addition to employers:

  • Licensing boards.
  • Commissions.
  • Other agencies that give the designated perpetrator access to vulnerable adults.

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

APS Tasks

Valid Findings

Before notifying the appropriate entity of investigation findings of Valid, the APS specialist follows the procedures for an administrative review and release hearing in 15200 Due Process for Non-EMR (Employee Misconduct Registry) Cases. The APS specialist does this before completing the steps below.

All Findings (Including Valid)

Before notifying the appropriate entity of any investigation findings, the APS specialist completes the following steps:

  1. Consults with his or her supervisor.
  2. Completes the appropriate form for the licensing board or other entity. The specialist includes a summary of the situation or incident he or she believes violated the perpetrator’s professional code of ethics or code of conduct. (For various entities’ forms, see the table below this list of steps.)
  3. Sends the completed form to the district director for review and approval.
  4. Sends the approved form and copies of any additional supporting documentation to the address on the form. Supporting documentation may include, for example, a copy of a check or bank statement with the account number marked out, or a Word document containing the intake narrative and any of the case narrative that supports the reason for sending the form (not the full case). The names of the victim and witnesses are not included, but the receiving entity may request them, if needed.
  5. Documents the notification in IMPACT.
  6. Keeps a copy of the completed form in the external case file and documents this on the External Documentation page in IMPACT.

The table below provides links to the appropriate notification forms or related webpages for various entities.

Professional Licensing Board, Commission, or Agency

Notification Form or Webpage

Texas State Board of Social Worker Examiners

Complaint Form (Texas Behavioral Health Executive Council (BHEC), including social work) and BHEC How to File a Complaint webpage

Texas Board of Nursing

How to File a Complaint (Board of Nursing)

Texas Medical Board

Complaint Form (Medical Board)

State Bar of Texas

Grievance Portal (State Bar)

Texas Judicial Branch Certification Commission Certification Division

Guardianship Certification webpage

Professional Codes of Ethics

It is important for the professional board or other entity to understand which code of conduct a person violated by committing the validated or alleged abuse, neglect, or financial exploitation. For example, an APS investigation of alleged sexual abuse may reveal that a consensual sexual relationship exists between an APS client (a consenting adult) and a licensed professional. This relationship would not be sexual abuse as defined in the Texas Administrative Code §705.1005, but the licensed professional’s actions may violate ethical standards set by the licensing board for his or her specific profession. A code of conduct is typically available on each board’s website.

15400 Employee Misconduct Registry (EMR)

APS February 2021

The Employee Misconduct Registry (EMR) is a public database that HHSC maintains as directed in the Health and Safety Code, Chapter 253. The purpose of the EMR is to make sure unlicensed employees who commit abuse, neglect, or financial exploitation against residents or consumers are denied employment with agencies regulated by the Texas Health and Human Services Commission (HHSC).

A person who is listed on the EMR is permanently denied employment with certain entities that HHSC regulates. Entities whose employees are subject to the EMR may not employ a person listed on the EMR. Other employers may use the EMR as an employment screening tool.

Any interested person can access and search the EMR Search System (Employability Status Check Search) free of charge. The subject’s first and last name or Social Security number is required for a search.

Human Resources Code, Chapter 48

DFPS Rules, 40 TAC Chapter 705

15410 EMR Eligibility

APS February 2021

The APS specialist uses a multi-step process to determine whether a designated perpetrator is eligible for the EMR. The APS specialist determines whether all the following apply:

  • The designated perpetrator meets eligibility criteria (see 15311 EMR-Eligible Employee).
  • The EMR-eligible employee has a validated finding of abuse, neglect, or financial exploitation.
  • The validated finding rises to the level of reportable conduct (see 15312 Reportable Conduct).

If APS legal staff or state office chooses not to use the EMR process, and APS intends to release the findings of the investigation outside DFPS, APS offers the perpetrator non-EMR due process. See 15200 Due Process for Non-EMR (Employee Misconduct Registry) Cases.

If a case contains both Valid-Reportable Conduct and Valid findings, the designated perpetrator is not eligible for a release hearing. (See 15240 Release Hearings for Non-EMR Cases.) The designated perpetrator receives due process through EMR due process only.

15411 EMR-Eligible Employee

APS February 2021

A designated perpetrator is eligible to be placed on the EMR by APS if he or she meets all of the following criteria:

  • Works for a HCSSA as an employee, agent, or contractor.
  • Provides personal care services, active treatment, or any other personal services to a client.
  • Was not licensed by the state to perform the services that he or she provided to the client at the time of the alleged misconduct.

A certified nurse aide is not licensed and therefore is EMR-eligible.

A licensed professional is not eligible for the EMR, but APS may report him or her to his or her professional licensing board.

If a designated perpetrator is a licensed professional but is working at a HCSSA as an unlicensed paid caretaker at the time of the misconduct, the designated perpetrator may be eligible for the EMR.

Health and Safety Code, Chapter 253

15412 Reportable Conduct

APS February 2021

If an investigation results in a validated finding against an EMR-eligible employee, the APS specialist determines whether the abuse, neglect, or financial exploitation rises to the level of reportable conduct.

Reportable conduct is defined in Human Resources Code §48.401 as any of the following:

  • Abuse or neglect that causes, or may cause, death or harm to a person receiving agency services.
  • Sexual abuse of a person receiving agency services.
  • Financial exploitation of a person receiving agency services in an amount of $25 or more.
  • Emotional, verbal, or psychological abuse that causes harm to a person receiving agency services.

DFPS Rules, 40 TAC §705.1507

Definition of Harm

Abuse or Neglect

For the purpose of determining whether abuse or neglect rises to the level of reportable conduct, harm is defined as any of the following:

  • A significant injury or risk of significant injury, including the following:
    • A fracture.
    • Dislocation of any joint.
    • Internal injury.
    • A contusion (bruise) larger than two and a half inches.
    • Concussion.
    • Second- or third-degree burn.
    • Any laceration (cut or tear) requiring sutures.
  • An adverse health effect that results from, or is at risk of resulting from, failure to receive medications in the amounts or at the times prescribed.
  • Any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

DFPS Rules, 40 TAC §705.1507

Emotional, Verbal, or Psychological Abuse

For the purpose of determining whether emotional, verbal, or psychological abuse rises to the level of reportable conduct, harm is defined as substantial harm, as shown by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

DFPS Rules, 40 TAC §705.1507

15420 Required Information for EMR-Eligible Investigations

APS February 2021

The APS specialist obtains the following information during an investigation when he or she believes that an allegation of abuse, neglect, or financial exploitation will result in a Valid-Reportable Conduct finding:

  • Records that prove the alleged perpetrator was an employee of the HCSSA at the time the abuse, neglect, or financial exploitation occurred. These include, but are not limited to, the following:
    • Job application.
    • Employer background checks.
    • Job description.
    • Training records.
    • Time sheets.
  • Current personal information about the alleged perpetrator, including the following:
    • Social Security number.
    • Date of birth.
    • Residential address.
    • Personal phone number.
  • Other evidence that may be relevant to the investigation, including, but not limited to, the following:
    • Financial records to show the exact dates and amounts related to the financial exploitation (such as pawn shop receipts, bank statements, and video or photos).
    • Expert testimony about the harm that resulted from, or could have resulted from, the abuse or neglect (such as medical records, photos, and incident reports).

The APS specialist attempts to verify the alleged perpetrator’s personal information during the interview.

If the information is not included in the intake, and the alleged perpetrator is not willing to provide the information, the APS specialist obtains the information from the alleged perpetrator’s employer. If the employer refuses to provide the information after the APS specialist has informed the employer of Human Resources Code §48.154, the APS specialist does as follows:

  • Documents the refusals by the alleged perpetrator and employer.
  • Notifies the state office EMR coordinator.

If the employer continues to refuse, and APS has made all reasonable attempts to obtain the information, the specialist follows the procedures in 13300 Access to Records.

If the alleged perpetrator is involved in an investigation that does not rise to the level of reportable conduct, the APS specialist cannot request the alleged perpetrator’s Social Security number from the employer.

On the Investigation Conclusion page, the APS specialist does the following:

  • Chooses the appropriate program administrator.
  • Enters the correct name and address of the headquarters of the alleged perpetrator’s employer in the HCSSA Administrator section.

See:

6122 Interviewing an Alleged Perpetrator

8610 Allegation Disposition (Finding)

16240 Person Information

15421 Entering the EMR Information in IMPACT

APS February 2021

Documenting the Finding

After determining an allegation is Valid and rises to the level of reportable conduct, the APS specialist chooses Valid-Reportable Conduct as the finding for the allegation in IMPACT. The APS specialist makes sure that only allegations that rise to the level of reportable conduct have the finding of Valid-Reportable Conduct.

The allegations that have a finding of Valid-Reportable Conduct automatically generate referrals to the APS-EMR database.

The APS specialist is not responsible for sending Form 2248 Notice of Findings to Designated Perpetrator when the finding is Valid-Reportable Conduct.

See 8610 Allegation Disposition (Finding).

Documenting the Investigation Conclusion

The APS specialist completes the conclusion narrative according to 8643 Conclusion Justification.

The conclusion justification for a case involving reportable conduct must also include the following:

  • The finding of Valid-Reportable Conduct.
  • The total monetary value of what the designated perpetrator gained, including how APS determined this amount, if the allegation is financial exploitation.
  • The date, dates, or date range the financial exploitation occurred, if applicable.
  • The definition of the allegation from Chapter 705 of the Texas Administrative Code.
  • A preponderance statement about why the case was determined Valid-Reportable Conduct. A separate preponderance statement for Valid is not required.

Example

The preponderance of the evidence indicates that Jane Jones financially exploited Joe Smith when she used his debit card to get $50.00 cash back while grocery shopping for Joe Smith on May 1, 2020. APS obtained the record of the debit card account. Mr. Smith said he did not agree to the withdrawal and did not receive the cash that Ms. Jones withdrew. The definition of financial exploitation (Texas Administrative Code §705.107) is the illegal or improper act or process of the alleged perpetrator using, or attempting to use, the resources of the alleged victim, including the alleged victim’s Social Security number or other identifying information, for monetary or personal benefit, profit, or gain without the informed consent of the alleged victim. The amount in this incident is more than $25, which is the minimum for financial exploitation to be reportable conduct. Therefore, the finding is Valid-Reportable Conduct.

15430 Management Review of EMR-Eligible Investigations

APS February 2021

Subject Matter Expert Review

When the APS specialist becomes aware the alleged perpetrator works for a HCSSA and suspects that an allegation meets the definition of reportable conduct, he or she notifies the evidence-driven investigation (EDI) subject matter expert (SME).

The EDI SME does the following:

  • Provides technical assistance throughout the investigation.
  • Helps the APS specialist determine whether the allegation meets the definition of reportable conduct.
  • Reminds the APS specialist of the additional records required for a reportable conduct case.
  • Enters the SME consultation in IMPACT.

Supervisor Review

To approve an EMR-eligible investigation, the supervisor must agree with the APS specialist’s decision that both of the following apply:

  • The allegation meets the definition of abuse, neglect, or financial exploitation.
  • The validated finding rises to the level of reportable conduct based on the legal definition.

The APS specialist submits the case to the supervisor for progression or closure in IMPACT. If the supervisor approves of the investigation and findings, he or she adds the district director or designee as a secondary approver in IMPACT.

District Director Review

The district director or designee reviews the case in IMPACT within 14 calendar days of receiving the electronic notification to determine whether the finding meets the definition of reportable conduct.

If the district director or designee determines the allegation does not rise to the level of reportable conduct, he or she electronically rejects the case and directs the APS specialist to change the allegation finding in IMPACT to Valid instead of Valid-Reportable Conduct.

If the district director or designee electronically approves the APS specialist’s finding of Valid-Reportable Conduct, IMPACT automatically sends an email notification the next business day to the APS EMR mailbox and copies the APS specialist, supervisor, and district director or designee. This email verifies that the EMR database successfully received the referral. If the verification email does not arrive within 24 hours after the district director or designee gave approval, the supervisor notifies the EMR coordinator of the unsuccessful referral.

See 9700 Subject Matter Expert (SME) Consultations.

15440 Role of the EMR Coordinator

APS February 2021

Upon receiving IMPACT’s notification of a new EMR referral, the EMR coordinator reviews the case to make sure of the following:

  • The designated perpetrator is an EMR-eligible employee.
  • The incident meets criteria for referral to the EMR.
  • All evidence necessary to support the Valid-Reportable Conduct finding was obtained and entered on the External Documentation page.
  • Documentation is clear and supports the finding.

The EMR coordinator requests more evidence or documentation to support the finding, as necessary. 

Referral Will Not Move Forward

If an EMR referral will not move forward, the following actions occur:

  • The EMR coordinator emails the APS specialist, supervisor, and district director or designee to notify them of the decision to stop the referral.
  • The APS specialist changes the allegation finding in IMPACT, based on the supervisor’s direction.
  • The EMR coordinator changes the status of the EMR referral in the APS-EMR database.

Referral Will Move Forward

If an EMR referral contains the necessary evidence, the EMR coordinator does as follows:

  • Sends a Notice of Findings letter to the designated perpetrator’s current address.
  • Sends the Notice to Employer letter to the entity that employed the perpetrator at the time of the incident.
  • Uploads into the APS-EMR database scanned copies of all letters sent to and received from all people and entities.

Once the EMR due process is complete, the EMR coordinator does as follows:

  • Sends a notification letter to the designated perpetrator’s employer informing the employer of the outcome.
  • If the finding was sustained, submits the perpetrator’s name to the HHSC EMR coordinator for placement on the Employee Misconduct Registry.
  • Makes sure that the correct allegation finding is in IMPACT in the Administrative Review of Investigation (ARI) stage. The ARI stage reflects the outcome of the EMR due process.
  • Informs the APS specialist, supervisor, and EDI SME of the outcome of the EMR due process.

The APS EMR coordinator and the EMR legal staff monitor the internal APS-EMR database until the EMR referral is complete and a final determination has been made. This database is used to track the legal process and gather statistics.

15450 Notifications of Findings in EMR-Eligible Cases

15451 Notice of Findings to Employer

APS February 2021

The EMR coordinator sends the employer a Notice of Findings letter by regular first-class mail. This notice informs the employer that the employee’s (designated perpetrator’s) action of abuse, neglect, or financial exploitation is Valid and rises to the level of reportable conduct. The notice includes a summary of the investigation with a finding of Valid-Reportable Conduct and a statement of the employee’s right to request an EMR hearing.

Emergency Release to Subsequent Employers Before the EMR Hearing

There are times when, before the EMR hearing, a designated perpetrator whom APS is considering for placement on the EMR obtains employment with another employer that gives the designated perpetrator access to vulnerable adults or children.

Employers Regulated by HHSC

If the subsequent employer is regulated by HHSC, the EMR coordinator works with district management and the regional attorney to determine whether an emergency release is appropriate. (See 15210 Emergency Release of Findings in Non-EMR Cases.)

If an emergency release occurs, the assigned APS specialist sends the emergency release letters to the EMR coordinator to store electronically with the designated perpetrator’s other EMR documents. Once EMR due process is complete, the EMR coordinator sends a Final Letter to Employer to each of the employers whom APS notified.

Other Employers

Employers not regulated by HHSC are not required to check the EMR for employment purposes. If the subsequent employer is a person or entity not regulated by HHSC, APS does not consider an emergency release.

15452 Notice of Findings to Employee (Designated Perpetrator)

APS February 2021

The EMR coordinator sends a Notice of Findings letter to the employee (designated perpetrator), using the perpetrator’s current (or last known) address. The EMR coordinator sends two copies of this letter – one by regular first-class mail and another by certified mail, return receipt requested. This notice includes the following:

  • A summary of the investigation with a finding of Valid-Reportable Conduct (including the definition).
  • A statement of the employee’s right to request an EMR hearing.
  • Information about the EMR hearing process.
  • The consequence of placement on the EMR.

DFPS Rules, 40 TAC §705.1509

15460 Request for EMR Hearing

APS February 2021

To request an EMR hearing, the designated perpetrator submits the Request for Hearing form as described in the Notice of Findings letter.

DFPS Rules, 40 TAC §705.1513

Hearing Is Not Requested

If the designated perpetrator does not request an EMR hearing within 30 calendar days after receiving the Notice of Findings letter, APS sends his or her name for placement on the Employee Misconduct Registry.

The EMR coordinator does the following:

  • Sends a notification letter to the sustained perpetrator’s employer informing the employer of the results of the EMR process.
  • Makes sure the correct allegation finding is in IMPACT in the Administrative Review of Investigation (ARI) stage.
  • Emails the APS specialist, supervisor, and program administrator informing them of the outcome of the EMR process.

Hearing Is Requested

Deadline for Requesting a Hearing

If the designated perpetrator submits the Request for Hearing by fax or hand delivery, APS state office must receive the request by 5 p.m., no later than 30 calendar days after the date the perpetrator received the Notice of Findings.

DFPS Rules, 40 TAC §705.1515

If the designated perpetrator submits the Request for Hearing by mail, the envelope must be postmarked no later than 30 calendar days after the date he or she received the Notice of Findings.

DFPS Rules, 40 TAC §705.1515

Receipt by Designated Perpetrator

APS state office presumes the designated perpetrator received the Notice of Findings on the date of delivery, as indicated on the certified mail return receipt.

If the certified mailing is returned unclaimed, but the regular mailing is not returned, APS state office presumes the designated perpetrator received the Notice of Findings on the third business day after the date the notice was mailed to the perpetrator’s last known address.

DFPS Rules, 40 TAC §705.1515

Late Request for Hearing

If the designated perpetrator submits the Request for Hearing after the deadline, the EMR coordinator notifies the designated perpetrator of the following information:

  • The request was not filed by the deadline.
  • Therefore, the request is denied, and no hearing will be granted.
  • APS will submit the perpetrator’s name for placement on the Employee Misconduct Registry.

The EMR coordinator notifies the designated perpetrator of this information by sending two copies of a Denial Letter – one by regular first-class mail and another by certified mail, return receipt requested. The Denial Letter contains information on how to appeal this decision.

DFPS Rules, 40 TAC §705.1515

Designated Perpetrator Disputes Missing Deadline

If the designated perpetrator disputes the fact that the Request for Hearing was filed late, the perpetrator may request a timeliness hearing, which considers only the issue of the timeliness of the Request for Hearing. If, as a result of that hearing, the perpetrator can prove that he or she filed the original Request for Hearing by the deadline, APS schedules a separate EMR hearing as soon as possible, to consider the issue of whether the perpetrator committed reportable conduct.

DFPS Rules, 40 TAC §705.1515

15470 EMR Hearing Process

APS February 2021

When the designated perpetrator submits the Request for Hearing within the 30-day time frame, the EMR coordinator immediately forwards the request and the Notice of Findings to the following:

  • EMR legal assistant
  • APS specialist
  • Supervisor

The EMR legal assistant forwards the request to the administrative hearings docket clerk for assignment to an administrative law judge (ALJ). The clerk schedules a hearing on the ALJ’s docket. The ALJ sends a Notice of Hearing to the designated perpetrator and to the EMR attorney.

The hearing usually occurs in the same DFPS region where the abuse, neglect, or financial exploitation took place.

DFPS Rules, 40 TAC §705.1519

15471 Schedule Changes for a Hearing

APS February 2021

Either the designated perpetrator or APS may request that the ALJ reschedule the hearing for good cause. This request must be made no later than three business days before the hearing date, except in cases of emergency.

DFPS Rules, 40 TAC §705.1521

15472 Withdrawal of Request for a Hearing

APS February 2021

Withdrawal by Employee (Designated Perpetrator)

The designated perpetrator may withdraw a Request for Hearing at any time before the hearing occurs. A perpetrator who withdraws a Request for Hearing is accepting the finding of reportable conduct.

The APS EMR attorney assigned to the case completes a motion to dismiss. The EMR legal assistant informs the EMR coordinator it is time to send the perpetrator’s name for placement on the Employee Misconduct Registry.

DFPS Rules, 40 TAC §705.1523

Withdrawal by APS

APS may decide to withdraw from the hearing at any time before the hearing occurs. If APS withdraws from the hearing, the EMR attorney notifies the program administrator and EMR coordinator. The EMR coordinator does the following:

  • Creates an Administrative Review of Investigation (ARI) stage to document the change in findings from Valid-Reportable Conduct to Valid or another finding, as appropriate.
  • Sends a Notice of Review of Reportable Conduct letter to the designated perpetrator and his or her employer informing them of the changes.

15473 Failure to Appear for a Hearing

APS February 2021

If either APS or the designated perpetrator fails to appear at any hearing related to the EMR process without good cause, the ALJ may issue a default judgment against the party that failed to appear.

If a default judgment against a perpetrator becomes the final hearing order, the EMR legal assistant notifies the EMR coordinator.

The EMR coordinator does as follows:

  • Submits the perpetrator’s name for placement on the Employee Misconduct Registry.
  • Sends a letter to the employer giving notice of the outcome.
  • Notifies the APS specialist, supervisor, program administrator, and EDI SME of the outcome.

DFPS Rules, 40 TAC §705.1525

15474 Decision of Administrative Law Judge (ALJ)

APS February 2021

The ALJ prepares a hearing order, which the court staff mails to the perpetrator and the EMR legal assistant. The hearing order contains the following information:

  • Findings of fact and conclusions of law about whether the following occurred:
    • The perpetrator committed abuse, neglect, or financial exploitation of a client.
    • The abuse, neglect, or financial exploitation met the definition of reportable conduct.
  • The following additional information, if the ALJ finds that reportable conduct occurred:
    • A statement of the perpetrator’s right to seek judicial review of the order.
    • A statement that the finding of reportable conduct will result in the perpetrator’s placement on the EMR.

When the ALJ determines that reportable conduct occurred, the designated perpetrator then becomes a sustained perpetrator.

DFPS Rules, 40 TAC §705.1529

The EMR coordinator is responsible for carrying out the ALJ’s instructions.

15475 Rehearing

APS February 2021

A sustained perpetrator may request a rehearing of the ALJ’s decision to sustain the finding of reportable conduct. The sustained perpetrator files a motion for rehearing with the Health and Human Services court no later than 25 calendar days after the ALJ signs the original hearing order.

If the perpetrator files the motion within the required time frame, the ALJ responds in one of the following ways:

  • Grants the motion and allows a new hearing.
  • Denies the motion. The perpetrator has no further appeal options.
  • Chooses not to rule on the motion. If this happens, it is overruled by operation of law (the motion is automatically denied) 75 calendar days after it was filed.

When the ALJ grants a rehearing, the new hearing proceeds as if the original EMR hearing and outcome had never occurred.

Outcome of Rehearing

When the ALJ rules on the matter, the EMR coordinator does one of the following:

  • Sends the sustained perpetrator’s name for placement on the EMR because the finding of reportable conduct was sustained.
  • Changes the finding from Valid-Reportable Conduct to Valid or another finding, as appropriate.

See:

15340 Role of the EMR Coordinator

ALJ’s Finding Is Altered or Reversed in 15376 Judicial Review

15476 Judicial Review

APS February 2021

If a rehearing sustains the finding of Valid-Reportable Conduct, the sustained perpetrator may request judicial review of the ALJ’s finding of reportable conduct. To request judicial review, the perpetrator files a petition for judicial review in the Travis County District Court no later than 30 calendar days after he or she receives the hearing order.

ALJ’s Finding Is Sustained

Travis County District Court

After the judicial review in Travis County District Court, there are two additional levels of judicial review that the sustained perpetrator may request (if the ALJ’s finding is sustained):

  • Third Court of Appeals.
  • Texas Supreme Court.

Final Ruling

Once the final judge rules on the matter, the EMR coordinator sends the sustained perpetrator’s name for placement on the EMR (if the ALJ’s finding is still sustained).

DFPS Rules, 40 TAC §705.1531

ALJ’s Finding Is Altered or Reversed

If a rehearing or judicial review alters or reverses the finding of reportable conduct, the EMR coordinator does the following:

  • Notifies all entities that were notified of the original finding of the new finding.
  • Notifies the APS specialist, supervisor, program administrator, and EDI SME.
  • Creates an Administrative Review of Investigation (ARI)stage in IMPACT to change the finding from Valid-Reportable Conduct to Valid or another finding, as appropriate.

DFPS Rules, 40 TAC §705.1533

15477 Placement of Sustained Perpetrators on the EMR

APS February 2021

After EMR due process is complete, the APS EMR coordinator sends the following information to the HHSC EMR coordinator:

  • The sustained perpetrator’s name, address, and Social Security number, if available.
  • The name and address of the home and community support services agency (HCSSA) that employed the sustained perpetrator at the time of the misconduct.
  • A brief, de-identified summary of the reportable conduct and the date or dates when it occurred.
  • A statement of whether placement on the EMR was the result of a hearing.

DFPS Rules, 40 TAC §705.1533

15500 Cases Involving School Personnel

APS February 2021

Investigations of school personnel are a special category, and APS handles notifications of findings and the review process differently than in other types of investigations.

DFPS sends the school a written report of APS’s investigation of alleged abuse, neglect, or financial exploitation by school personnel, regardless of the findings.

When the finding is Valid, and the perpetrator is a school employee, volunteer, or contractor, APS offers him or her an administrative review after releasing the investigative findings to school officials.

School personnel are not entitled to a release hearing upon completion of the administrative review, regardless of the findings of the administrative review.

See 4320 Allegations Involving Schools.

Processing the Completed School Investigation

APS takes specific actions after completing an investigation involving a student in school custody, regardless of the findings. The actions must be completed as outlined below. APS staff members address any questions about the process with the regional attorney.

Step 1: Sending Notice of Conclusion of Investigation

For all school investigations, regardless of the findings, the APS specialist mails Form 2300 Notice of Conclusion of Investigation (School Employees) to the following:

  • Texas State Board for Educator Certification (SBEC) division of the Texas Education Agency (TEA).
  • President of the local school board or governing body.
  • School principal, unless the principal is the perpetrator.

Step 2: Providing Redacted Case Records

For all school investigations, regardless of the findings, the APS specialist emails Records Management Group (RMG) requesting that RMG send a copy of the redacted case record to the recipients listed above in Step 1. The request must include addresses for both of the following:

  • Local school board or governing body.
  • School principal, unless the principal is the perpetrator.

RMG sends the redacted case record to the recipients listed above in Step 1.

The recipients take appropriate action.

Human Resources Code §48.102(a)

Step 3: Notifying the Alleged Perpetrator

The APS specialist refers to the table below to determine which procedures to follow when notifying the perpetrator of the findings.

Finding

Procedure

Invalid, Unable to Determine, or Other

At the same time as sending the email to RMG, the APS specialist sends the alleged perpetrator Form 2301 Notification of Release – School Investigation. The form is sent by certified mail, return receipt requested. No further APS action is required.

Valid

At the same time as sending the email to RMG, the APS specialist sends the perpetrator the following forms:

These forms are sent by certified mail, return receipt requested, unless DFPS determines a more immediate method of written notification is required.

See 16100 Disclosure and Release of Case Information.

15510 Request for Administrative Review by School Personnel (Designated Perpetrator)

APS February 2021

The designated perpetrator’s request for an administrative review must be postmarked within 20 calendar days after DFPS mailed the official notice of findings (Form 2301 Notification of Release – School Investigation). If the request is not postmarked within 20 calendar days, the designated perpetrator has forfeited the right to an administrative review.

The APS district staff must wait at least 23 calendar days and may wait up to 30 calendar days after DFPS mailed the official notice of findings before considering the administrative review forfeited. This allows enough time for DFPS to receive the request and route it to the proper region. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.

Request for Records

If the request for an administrative review is received in a timely manner and indicates the perpetrator wants a copy of the case record, the district director or designee does the following:

  • Requests a redacted copy of the case through OneCase by choosing Administrative Review as the Request Type.
  • Lists himself or herself as the caseworker in the contact information fields.
  • Requests that the Entitlement Redaction Office (ERO) provide the record within 45 calendar days from the date the request is entered in OneCase.

The ERO sends the reviewer a link to print the redacted case record once it is available.

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

15520 Administrative Review in School Cases

APS February 2021

The APS district director or designee conducts the administrative review. The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.

The review occurs within 30 calendar days after the date APS receives the perpetrator’s request unless one of the following occurs:

  • The perpetrator requests the review be postponed because he or she has not received the case record yet.
  • Court proceedings related to the abuse, neglect, or financial exploitation are in progress 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 time frame. However, failure to do so in that time frame does not cancel the review or reverse the finding.

See 15410 Request for Administrative Review by School Personnel (Designated Perpetrator).

Perpetrator’s Role in the Administrative Review

At the administrative review, the perpetrator may do any or all of the following:

  • Appear in person, with or without a legal representative.
  • Submit written material that is relevant to the case.
  • Have DFPS provide a certified interpreter if the perpetrator does not speak English or has a hearing impairment, or provide his or her own interpreter.

DFPS Rules, 40 TAC §705.1301(1)

The perpetrator pays any costs he or she may incur for the review, except for interpreter services that DFPS provides.

DFPS Rules, 40 TAC §705.1301(2)

Formal rules of evidence do not apply 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 the perpetrator is accepted at this informal review. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.

Actions After the Administrative Review

Within 45 calendar days after the administrative review, the reviewer does the following:

  • Decides 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 Investigation (ARI) stage by choosing 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 ARI stage.
  • Updates the investigation closure reason, if appropriate.

Steps for creating and completing an ARI stage in IMPACT are available in the APS section of the DFPS intranet and in IMPACT FYI.

15530 Notification of Final Findings for School Personnel

APS February 2021

Administrative Review Completed

Within 45 calendar days after the administrative review is completed, the district director or designee sends Form 2303 Findings of Administrative Review (School Employees) to the perpetrator by certified mail, return receipt requested. The district director or designee also sends copies to all people and entities notified of the original findings.

The outcome of the review is final and cannot be appealed.

Administrative Review Not Requested

If the designated perpetrator does not request an administrative review, the district director or designee sends Form 2304 Notice of Final Findings of Investigation (School Employees) to the perpetrator by certified mail, return receipt requested. The district director or designee also sends copies to all people and entities notified of the original findings.

Previous Page Next Page