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8000 The Employee Misconduct Registry

APS Provider Investigations April 2017

The Employee Misconduct Registry (EMR) is a public database maintained by DADS. The purpose of EMR is to ensure that unlicensed personnel who commit acts of abuse, neglect, or exploitation against individuals receiving services are denied employment with certain facilities and providers.

A person whose name is listed on EMR is permanently denied employment with certain facilities and providers. Facilities and providers whose employees are subject to EMR may not employ a person listed on EMR. Other employers may use EMR as an employment screening tool.

The Employee Misconduct Registry Search System is a public database and may be searched by any interested party.

Health and Safety Code, Chapter 253.

Human Resources Code, Chapter 48

Chapter 711 of the Texas Administrative Code

8100 Determining EMR Eligibility

APS Provider Investigations April 2017

The investigator uses a multi-step process when determining EMR eligibility. The investigator determines whether:

  •  the employee meets the criteria in 8110 EMR-Eligible Employees;

  •  an EMR-eligible employee has a confirmed finding of abuse, neglect, or exploitation; and

  •  the confirmed finding of abuse, neglect, or exploitation rises to the level of reportable conduct.

8110 EMR-Eligible Employees

APS Provider Investigations April 2017

To be placed on the EMR, the designated perpetrator must:

  •   meet the definition of an employee as established in Chapter 48 of the Texas Human Resources Code; and

  •   be an employee, contractor, volunteer, or agent of an agency, as defined in Section 711.1406 of the Texas Administrative Code.

Most licensed professionals are not eligible for EMR, although they may be subject to other registries.

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

8111 Definition of Reportable Conduct

APS Provider Investigations April 2017

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

Reportable conduct is:

  •  abuse or neglect that causes or may cause death or harm to an individual receiving services;

  •  sexual abuse of an individual receiving services;

  •  financial exploitation of an individual receiving services in an amount of $25 or more; or

  •  emotional, verbal, or psychological abuse that causes harm to an individual receiving services.

Texas Human Resources Code §48.401

DFPS Rules, 40 TAC §711.1408

8112 Definition of Harm

APS Provider Investigations April 2017

Abuse or Neglect

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

  •  a significant injury or risk of significant injury, including a fracture, dislocation of any joint, an internal injury, a contusion larger than 2.5 inches, a concussion, a second- or third-degree burn, or any laceration requiring sutures;

  •  an adverse health effect that results or is at risk of resulting from failure to receive medications in the amounts or at the times prescribed; or

  •  any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

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 evidenced by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

DFPS Rules, 40 TAC §711.1408

8120 Required Information for EMR-Eligible Investigations

APS Provider Investigations April 2017

Documentation plays a vital role in a case that meets the criteria for inclusion in EMR. Information above and beyond a preponderance of the evidence is required when the abuse, neglect, or exploitation rises to the level of reportable conduct.

The investigator obtains the following information during an investigation when the investigator believes that an allegation of abuse, neglect, or exploitation will result in a finding of Confirmed – Reportable Conduct:

  •  Records to show the perpetrator was employed by the provider at the time the alleged abuse, neglect, or exploitation occurred. Records may include the alleged perpetrator’s:

  •  application form;

  •  job description;

  •  applicable training records; or

  •  time sheets.

  •  Records to support a confirmed finding, especially financial records and medical records for the following allegations:

  •  For allegations of exploitation, financial records to show the exact dates and amounts related to the exploitation.

  •  For allegations of abuse or neglect that resulted in harm, expert medical testimony about the harm resulting from the abuse or neglect and documentation such as medical records, chart notes, photographs, and incident reports.

  •  For allegations of abuse or neglect that are based on risk of harm, expert medical testimony supporting what could have happened as a result of the abuse or neglect, particularly when the incident placed the alleged victim at risk of significant injury or death.

  •  The alleged perpetrator’s current personal information, including his or her:

  •  Social Security number;

  •  date of birth;

  •  residential address; and

  •  telephone number.

  •  The provider administrator’s information, including:

  •  first and last name; and

  •  mailing address.

It is best practice for the investigator to verify the alleged perpetrator’s personal information during the interview. In EMR-eligible investigations, if the intake report does not include the alleged perpetrator’s personal information and the alleged perpetrator is not willing to provide it, the investigator obtains the information from the alleged perpetrator’s employer.

If the employer also refuses to provide the information, the investigator:

  •  documents the refusals by the alleged perpetrator and employer; and

  •  notifies the EMR coordinator for DFPS state office.

If the alleged perpetrator is involved in an investigation that does not result in a finding of Confirmed – Reportable Conduct, the investigator cannot request the alleged perpetrator’s Social Security number from the employer.

See 8110 EMR-Eligible Employees.

8130 Entering the Finding of Confirmed – Reportable Conduct in IMPACT

APS Provider Investigations April 2017

After determining that an allegation is confirmed and rises to the level of reportable conduct, the investigator:

  •   selects Confirmed – Reportable Conduct as the disposition for the allegation in IMPACT; and

  •   verifies and enters the correct provider and administrator’s information on the Facility Administrator page.

Allegations that have a disposition of Confirmed – Reportable Conduct automatically generate referrals to the APS EMR database when the supervisor approves the disposition in IMPACT. The investigator ensures that only allegations that rise to the level of reportable conduct have the disposition of Confirmed – Reportable Conduct.

8140 Managerial Review of EMR-Eligible Investigations

APS Provider Investigations April 2017

Complex Case Specialist’s Review

It is best practice to involve a complex case specialist when determining whether an allegation rises to the level of reportable conduct. The complex case specialist must review all EMR investigations after the supervisor reviews and approves them. The complex case specialist is available for consultation on complicated or complex investigations and has specific knowledge about what constitutes reportable conduct.

Supervisor’s Review

The supervisor reviews all cases, including those in which the finding meets the definition of reportable conduct.

To approve an EMR-eligible investigation, the supervisor must agree with the investigator’s decision the:

  •  allegation meets the definition of abuse, neglect, or exploitation; and

  •  confirmed finding of abuse, neglect, or exploitation rises to the level of reportable conduct based on the legal definitions.

Once the supervisor approves the investigator’s finding of Confirmed – Reportable Conduct, IMPACT automatically sends an email notification on the next business day to the investigator, supervisor, program administrator, and the APS EMR coordinator.

If the supervisor determines that the confirmed finding does not rise to the level of reportable conduct, the investigator ensures that the finding in IMPACT is changed to Confirmed instead of Confirmed – Reportable Conduct.

Program Administrator’s Review

The program administrator or the program administrator’s designee reviews the case within 14 calendar days of receiving the email notification to determine whether the finding meets the definition of reportable conduct. The program administrator or designee communicates with the EMR coordinator if there are questions about the reportable conduct findings or need for additional evidence.

If the program administrator or designee determines the confirmed finding does not rise to the level of reportable conduct, the investigator ensures that the finding in IMPACT is changed to Confirmed instead of Confirmed – Reportable Conduct.

8200 APS-EMR Database

APS Provider Investigations April 2017

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

8210 Responsibilities of the EMR Coordinator

APS Provider Investigations April 2017

Upon receiving an IMPACT-generated notice that a new case is being referred to EMR, the EMR coordinator creates a file for the EMR case and reviews the case to ensure that:

  •  the designated perpetrator is an EMR-eligible employee;

  •  the incident meets the criteria for referral to EMR;

  •  all of the evidence needed to support the confirmed finding of abuse, neglect, or exploitation and the disposition of Confirmed – Reportable Conduct was obtained; and

  •  the documentation is clear and supports the finding.

The EMR coordinator then:

  •  monitors and tracks activity related to the EMR case; and

  •  monitors for appeals by the administrator or the contractor’s CEO.

If an appeal upholds the Confirmed – Reportable Conduct finding, the EMR coordinator sends a Notice of Findings letter to the designated perpetrator. The EMR coordinator forwards the letter to the investigator to put in the case file.

If an appeal overturns the Confirmed – Reportable Conduct finding, the EMR coordinator stops the EMR process without sending a Notice of Findings letter to the designated perpetrator.

If there is no request for an appeal before the applicable time frames expire, the EMR coordinator sends a Notice of Findings letter to the designated perpetrator.

If the EMR coordinator has any questions or concerns about the specifics or quality of a case, he or she:

  •  contacts the APS attorney at DFPS state office with specific legal questions;

  •  contacts the complex case specialist on investigations and risk at DFPS state office for an assessment of issues uncovered by the EMR coordinator;

  •  consults with state office program specialists, as needed; or

  •  provides reports to the director of field regarding concerns or recommendations for EMR investigations.

If the EMR coordinator determines that the investigation needs additional evidence or clearer documentation to support the finding, the EMR coordinator sends an email to the district office requesting that additional action be taken on the investigation. If the EMR coordinator asks the district office to collect additional evidence, the region records additional investigative work in IMPACT as a methodological review.

The EMR coordinator verifies with the district office that the additional evidence and documentation is complete before:

  •   sending written notification to the designated perpetrator and employer; and

  •   referring the investigation to the DFPS Office of General Counsel for a hearing.

If the decision is made to stop the EMR referral after consulting with DFPS Office of General Counsel staff, the EMR coordinator informs the district office that APS will not pursue the EMR case.

In these circumstances, the investigator ensures that the correct allegation disposition is entered into IMPACT.

If the Notice of Findings letter has been sent to the designated perpetrator, the investigator completes the Notice of Review of Reportable Conduct Findings letter and sends it to the administrator. If appropriate, the investigator also sends it to the contractor’s CEO and the DADS Waiver Survey and Certification office.

Once the due process for EMR is completed, the EMR coordinator:

  •  sends a notification letter to the administrator or contractor’s CEO informing him or her of the results; and

  •  ensures that the correct allegation disposition is entered into IMPACT using the Administrative Review of Investigation (ARI) stage. The ARI stage reflects the outcome of EMR due process.

See 7400 Request for an Appeal of Findings.

8300 Notice of Findings to Provider

APS Provider Investigations April 2017

If the supervisor agrees with the investigator that the finding for the allegation meets the definition of conduct reportable to EMR, the investigator:

  •  attaches Form 3401 Employee Misconduct Registry Transmittal Sheet to the Provider Abuse and Neglect Report, indicating that one or more of the allegations meets the criteria for reportable conduct; and

  •  sends Form 3401 and the investigative report to the administrator (and to the contractor chief executive officer, if appropriate).

The investigator also sends a copy of Form 3401 and the investigative report to the DADS Waiver Survey and Certification office, if the investigation involves:

  •  a state supported living center;

  •  a Texas Home Living waiver program provider ;

  •  a home and community-based services waiver program provider; or

  •  licensed intermediate care facilities for individuals with an intellectual disability or related conditions.

Form 3401 explains that DFPS’s determination that the allegation meets the criteria for being reportable to EMR is not subject to request for appeal; however, the rules concerning a request to appeal a finding of abuse, neglect, or exploitation remain the same.

See 7210 Release of Provider Abuse and Neglect Report to Providers.

8310 Reportable Conduct Determined After Submission of the Original Provider Abuse and Neglect Report

APS Provider Investigations April 2017

No Additional Evidence Collected

If a case is referred to the EMR database after the original Provider Abuse and Neglect Report has been submitted to the appropriate parties and no other evidence is changed in the report, the investigator:

  •  modifies the Allegation Detail page in IMPACT by changing the disposition to Confirmed – Reportable Conduct;

  •  adds comments in the Administrative/Procedural Notes section, explaining the changes that were made to the original report;

  •  prints a revised Provider Abuse and Neglect Report that shows the changes made; and

  •  attaches Form 3401 Employee Misconduct Registry Transmittal Sheet to the cover pages of the report and sends both the transmittal sheet and the report to the administrator (and to the contractor’s CEO and the DADS Waiver and Certification office, if appropriate).

If the case is closed, the investigator reopens the case so that a new disposition can be made, documented, and approved by the supervisor, the program administrator or the program administrator’s designee, and the EMR coordinator.

Additional Evidence Collected

If a case is referred to the EMR database after the original Provider Abuse and Neglect Report has been submitted to the appropriate parties and additional evidence is added to the original report, the investigator:

  •  modifies the Allegation Detail page in IMPACT by changing the disposition to Confirmed – Reportable Conduct;

  •  updates IMPACT and the case file to reflect the additional evidence collected;

  •  adds comments in the Administrative/Procedural Notes section, explaining the changes made to the original report;

  •  prints a revised Provider Abuse and Neglect Report that shows the changes made; and

  •  attaches Form 3401 Employee Misconduct Registry Transmittal Sheet to the cover pages of the report and sends both to the administrator (and to the contractor’s CEO and the DADS Waiver and Certification office, if appropriate).

If the case is closed, the investigator reopens the case, so that a new disposition can be made, documented, and approved by the supervisor, the program administrator or designee, and the EMR coordinator.

8320 Administrator or Contractor’s CEO Requests an Appeal of the Findings

APS Provider Investigations April 2017

When an administrator or a contractor’s CEO requests an appeal of a finding, the district director or the director’s designee notifies the EMR coordinator about the request.

The district director or the designee completes the review within 14 calendar days and notifies the EMR coordinator about the outcome.

No request for an appeal is granted on the finding of reportable conduct alone; however, APS may consider the appropriateness of the determination of reportable conduct while reviewing the finding of abuse, neglect, or exploitation. APS staff may determine that an additional investigation by the district is more appropriate than an appeal of the finding.

When the decision is made, the EMR coordinator is notified about the decision so that the time frame may be tracked.

If the district director or the designee upholds the finding of abuse, neglect, or exploitation and the finding of reportable conduct, then the district office:

  •  sends the administrator or the contractor’s CEO a letter that explains the results of the review and how to request a second appeal from APS state office; and

  •  notifies the EMR coordinator about the results of the review and the date that the letter is sent to the administrator or the contractor’s CEO.

If the review overturns both the finding of abuse, neglect, or exploitation and the finding of reportable conduct, then the district:

  •  changes the disposition in IMPACT from ConfirmedReportable Conduct to the revised disposition;

  •  notifies the administrator or the contractor’s CEO about the results; and

  •  notifies the EMR coordinator about the results.

If the review upholds the finding of abuse, neglect, or exploitation but overturns the finding of reportable conduct, then the district office:

  •  changes the disposition in IMPACT from ConfirmedReportable Conduct to Confirmed;

  •  notifies the administrator or the contractor’s CEO about the results; and

  •  notifies the EMR coordinator about the results.

See 7400 Request for an Appeal of Findings.

8400 Notifying Subsequent Employers of Findings

APS Provider Investigations April 2017

There are times when a designated perpetrator, who is awaiting an EMR hearing, secures employment with another employer that provides the designated perpetrator access to children, persons age 65 or older, or individuals with disabilities.

To release the findings to the designated perpetrator’s new employer, the investigator:

  •   consults with his or her supervisor and regional attorney to determine whether an emergency release of finding is necessary.

  •   follows 7265.3 Emergency Release of Findings, and

  •   emails the EMR coordinator with a copy of the Emergency Release of Findings letter upon completion.

See 7260 Release to Other Employers.

8500 Notice of Hearing to an Employee Designated as a Perpetrator

APS Provider Investigations April 2017

When investigating an employee whose conduct is reportable to EMR, the EMR coordinator sends the employee a Notice of Findings letter.

See 40 TAC §711.1413 for information on the contents of the notice.

An employee of a state-operated facility also receives notice that he or she is entitled to a grievance hearing on disciplinary action based on a finding of reportable conduct. This request is separate and in addition to a request for an EMR hearing. An EMR hearing takes place before the grievance hearing.

DFPS Rules, 40 TAC §711.1434

8510 Request for an EMR Hearing by the Employee

APS Provider Investigations April 2017

To request a hearing, an employee submits a Request for Hearing form, as explained in the Notice of Findings letter that he or she receives.

DFPS Rules, 40 TAC §711.1415

Deadlines for Filing

The employee must file the Request for Hearing form no later than 30 calendar days from the date that he or she receives the Notice of Findings letter.

DFPS Rules, 40 TAC §711.1417(a)

Notice of Findings to the Employee

DFPS presumes that the employee received the Notice of Findings letter on the date of delivery, as indicated on the return receipt for the certified mailing.

If the certified mailing is returned unclaimed but the regular mailing is not returned, the Notice of Findings letter is presumed received on the third business day following the date that the notice was mailed to the employee’s last known address.

DFPS Rules, 40 TAC §711.1417(b)

See 40 TAC §711.1417(c) for instructions on employees filing a Request for Hearing form by mail, fax, or hand delivery.

8520 Late Request for an EMR Hearing

APS Provider Investigations April 2017

If an employee files a Request for Hearing form after the deadline, APS notifies the employee that:

  •  the request was not filed by the deadline;

  •  no hearing will be granted; and

  •  his or her name will be submitted for inclusion in EMR.

DFPS Rules, 40 TAC §711.1417(d)

Lateness Disputed

If an employee disputes missing the deadline to request a hearing, he or she may request a hearing that is limited solely to determining the timeliness of the request.

If, as a result of that hearing, the employee proves that the original Request for Hearing form was filed on time, a separate hearing is scheduled as soon as possible to determine whether the employee committed reportable conduct.

DFPS Rules, 40 TAC §711.1417(e)

8600 The EMR Hearing

APS Provider Investigations April 2017

Immediately upon receiving a Request for Hearing form, APS forwards the request to the docket clerk for administrative hearings who assigns the case to an administrative law judge.

The administrative law judge:

  •  schedules a hearing as soon as possible; and

  •  sends a Notice of Hearing to the employee and to the EMR attorney.

The hearing is usually held in the same DFPS district where the alleged reportable conduct took place.

DFPS Rules, 40 TAC §711.1421

8610 Rescheduling an EMR Hearing

APS Provider Investigations April 2017

Either the employee or APS may request that the administrative law judge reschedule an EMR hearing for good cause.

Except in cases of emergency, a request to reschedule must be made no later than three business days before the hearing date.

DFPS Rules, 40 TAC §711.1423

8620 Withdrawing a Request for an EMR Hearing

APS Provider Investigations April 2017

Withdrawal by Employee

An employee may withdraw a request for an EMR hearing any time before the hearing is conducted.

An employee who withdraws a request for a hearing is deemed to have accepted the finding of reportable conduct.

The EMR attorney assigned to the case:

  •  completes a motion to dismiss the case; and

  •  submits the employee’s name for inclusion in EMR.

DFPS Rules, 40 TAC §711.1425

Withdrawal by APS

APS may withdraw from an EMR hearing any time before the hearing is conducted.

If APS withdraws from the hearing, the EMR attorney notifies the program administrator and EMR coordinator.

The EMR coordinator:

  •  adds an ARI stage to document the change in findings; and

  •  sends a Notice of Review of Reportable Conduct Findings letter to the employee, the administrator, and if appropriate, the contractor’s CEO and the DADS Waiver Survey and Certification office.

8630 Failure to Appear for an EMR Hearing

APS Provider Investigations April 2017

If either APS or the employee fails, without good cause, to appear at an EMR hearing, the administrative law judge may issue a default judgment against the party that failed to appear.

If a default judgment against an employee becomes the final hearing order, the APS attorney notifies the EMR coordinator, and the EMR coordinator forwards the name of the employee for inclusion in EMR.

DFPS Rules, 40 TAC §711.1426

8640 The Decision of the Administrative Law Judge

APS Provider Investigations April 2017

The administrative law judge prepares a hearing order that is mailed to the employee.

See 40 TAC §711.1429(a) for information on the contents of the hearing order.

8650 Request by an Employee for a Judicial Review

APS Provider Investigations April 2017

An employee may request judicial review of an administrative law judge’s finding of reportable conduct.

An employee must first file a timely motion for rehearing as a prerequisite to judicial review. The motion for rehearing must be served on the administrative law judge and APS attorney of record.

Then, to seek judicial review of a hearing order, the employee files a petition for judicial review in a Travis County district court.

DFPS Rules, 40 TAC §711.1431

8651 Providing Notice if a Finding Is Modified or Reversed After Judicial Review

APS Provider Investigations April 2017

If a finding of reportable conduct is modified or reversed as a result of a judicial review, the EMR coordinator provides notice of the final outcome to any person or entity that was previously notified of DFPS’s original finding.

DFPS Rules, 40 TAC §711.1432

8700 Information Forwarded to DADS for Recording in EMR

APS Provider Investigations April 2017

If an employee accepts a finding of reportable conduct, or the finding is sustained following all administrative remedies, the EMR coordinator forwards to DADS the following information to be recorded in EMR:

  •  The employee’s name, address, and Social Security number, if available.

  •  The name and address of the provider where the employee worked when the reportable conduct occurred.

  •  A summary of the reportable conduct and the approximate date on which it occurred.

DFPS Rules, 40 TAC §711.1432

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