37 TAC §93.33
The Texas Youth Commission (TYC) adopts an amendment to §93.33,
concerning Alleged Mistreatment, with changes to the proposed text as published
in the February 18, 2000, issue of the
Texas Register
(25 TexReg 1257). Changes to the proposed text add information to
clarify implementation of changes in law Chapter 552 of the Government Code.
The justification for amending the section is to ensure that the parent
of a youth committed to TYC who is the subject of a mistreatment investigation
will receive notification of the allegation and of the outcome of the investigation.
The amendment also allows the employee who may be the subject of an investigation
to receive a copy of the investigator's report following redaction.
The amendment is necessary to ensure consistency in compliance with regulations
and administrative procedures agency wide.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Human Resources Code, §61.045,
which provides the Texas Youth Commission with the authority of the general
charge and welfare for the custody and rehabilitation of the children in a
school, facility, or program, operated or funded by the Commission.
The adopted rule implements the Human Resource Code, §61.034, which
gives the Commission authority to make rules appropriate to the accomplishment
of the agency's functions.
§93.33.Alleged Mistreatment.
(a)
Purpose. This chapter should be implemented in a way that
best achieves the following purposes:
(1)
to provide definitions of abuse and neglect of any youth
who receives or has received care, treatment or services from a facility,
contract program or agent of the Texas Youth Commission (TYC);
(2)
to provide procedures for the protection of youth
through the reporting and investigation of all alleged abuse, neglect, and
exploitation by TYC and contract employees and volunteers; and
(3)
to prescribe principles and methods for the prevention
of abuse, neglect, and exploitation.
(b)
Explanation of Terms Used.
(1)
Abuse--an act or omission by any TYC staff member, contract
employee or volunteer that endangers or impairs a youth's physical, mental
or emotional health and development. Abuse includes the following:
(A)
mental or emotional injury to the youth that results in
an observable and material impairment in the youth's growth, development,
or psychological functioning;
(B)
causing or permitting the youth to be in a situation in
which the youth sustains a mental or emotional injury that results in an observable
and material impairment in the youth's growth, development, or psychological
functioning;
(C)
physical injury that results in substantial harm to the
youth, or the genuine threat of substantial harm from physical injury to the
youth, including an injury that is at variance with the history or explanation
given and excluding an accident, reasonable discipline, or justified use of
force that does not expose the youth to a substantial risk of harm;
(D)
failure to make a reasonable effort to prevent an action
by the youth or another person that results in physical injury that results
in substantial harm to the youth;
(E)
sexual conduct harmful to a youth's mental, emotional or
physical welfare;
(F)
failure to make a reasonable effort to prevent sexual contact
harmful to a youth;
(G)
compelling or encouraging the youth to engage in sexual
conduct harmful to the youth or others;
(H)
causing, permitting, encouraging, engaging in, or allowing
the photographing, filming, or depicting of the youth if the person know or
should have known that the resulting photograph, film or depiction of the
youth is obscene or pornographic.
(2)
Neglect--an act or omission by any TYC staff
member, contract employee or volunteer who is either directly responsible
for providing adequate food, clothing, shelter, protection, medical care and
supervision, or arranging to have someone else to provide such needs and whose
failure to do so, results in harm or the substantial risk of harm. Neglect
includes the following:
(A)
the leaving of a youth in a situation where the youth would
be exposed to a substantial risk of harm, without arranging for necessary
care for the child, and a demonstration of an intent not to return by a parent,
guardian, TYC employee, contract provider or volunteer;
(B)
the following acts or omissions by any person:
(i)
placing the youth in or failing to remove the youth from
a situation that a reasonable person would realize requires judgment or actions
beyond the youth's level of maturity, physical condition, or mental abilities
and that results in bodily injury or a substantial risk of immediate harm
to the youth;
(ii)
the failure to seek, obtain, or follow through with medical
care for the youth, with the failure resulting in or presenting a substantial
risk of death, disfigurement, or bodily injury or with the failure resulting
in an observable and material impairment to the growth, development, or functioning
of the youth;
(iii)
the failure to provide the youth with food, clothing
or shelter necessary to sustain the life or health of the youth, excluding
failure caused primarily by financial inability unless relief services had
been offered and refused; or
(iv)
placing a youth in or failing to remove the youth from
a situation in which the youth would be exposed to a substantial risk of sexual
conduct harmful to the youth; or
(v)
the failure by the person responsible for the youth's care,
custody or welfare to permit the youth to return to the youth's home without
arranging for the necessary care for the child after the youth has been absent
from the home for any reason, including having been in residential placement,
or having run away.
(3)
Exploitation--an illegal or improper act
or process of a TYC or contract employee or volunteer, who uses the resources
of the youth for monetary or personal benefit, profit, or gain without the
informed consent of the youth.
(c)
Application. The Texas Youth Commission shall be responsible
for investigating allegations of abuse, neglect, and exploitation involving
youth served by employees and volunteers in TYC-operated facilities, contracted
residential facilities and community corrections.
(d)
Reporting and Investigation Requirements.
(1)
Any employee or volunteer who has cause to believe that
a youth has been or may be abused, neglected, or exploited shall report the
allegation to the local administrator no later than the end of the work shift.
(2)
Upon receipt of the allegation, the local administrator
shall immediately notify the appropriate law enforcement agency when there
is cause to believe that a youth has been or may be abused, neglected, or
exploited. The Texas Department of Protective and Regulatory Services (DPRS)
shall be immediately notified of any allegation of abuse, neglect, or exploitation
involving a private residential program licensed by DPRS. However, if DPRS
decides not to investigate, TYC shall conduct an investigation.
(3)
The local administrator will notify the youth's parent
or guardian of the allegation.
(4)
An employee or volunteer accused of mistreatment shall
be notified in writing of the allegations prior to the commencement of the
investigation.
(5)
Findings shall be based upon a preponderance of the
evidence. A summary of the findings and conclusions shall be provided to the
accused employee or volunteer, the youth, and the reporter at the conclusion
of the investigation. A written copy of the same shall be given to the accused
employee.
(6)
All allegations of mistreatment are thoroughly investigated,
including new allegations that arise during the course of the initial investigation.
(7)
Each investigator shall submit an accurate and thorough
report which indicates he/she has:
(A)
interviewed witnesses and gathered relevant documents and
physical evidence (when necessary);
(B)
developed a written finding for each allegation based on
a preponderance of the evidence, which describes what the investigator believes
actually happened during the time mistreatment is alleged to have occurred;
and
(C)
documented a conclusion indicating whether each allegation
is confirmed or unconfirmed, and summarized the evidence relied upon to support
each conclusion.
(8)
When necessary, additional staff will be assigned
to conduct investigations. Priority will be given to situations threatening
the immediate safety and well-being of the youth.
(9)
The allegation of mistreatment is filed by the facility
or program where the alleged incident occurred even though the alleged victim
and other witnesses may have moved prior to the filing.
(10)
The youth rights administrator may aid or assume
an investigation at any stage of the investigation process. This shall include
enlisting the assistance of additional investigators when all parties are
not located in the same place.
(11)
The youth's parent or guardian shall be notified
of the outcome of the investigation.
(e)
Appeal to the Executive Director.
(1)
A youth or someone on the behalf of the youth may appeal
an unsatisfactory decision or lack of response to an allegation of mistreatment
that has been assigned a case file number.
(2)
Appeals shall be handled under the provisions of (GAP) §93.53
of this title (relating to Appeal to Executive Director).
(f)
The TYC Board shall be responsible for:
(1)
receiving and reviewing complaints about the manner in
which investigations have been conducted by the agency; and
(2)
if necessary, conducting an independent investigation.
(3)
ensuring that the internal audit department annually
assesses the level of risks to clients and the agency represented by the investigation
procedure, and audits the procedure(s) as indicated by the level of risk determined.
(g)
A Category 1 alleged mistreatment report is confidential
and not subject to release under Chapter 552 of the Government Code. However,
in the furtherance of the administration of justice, any evidence relied upon
by a decision maker in a disciplinary action should be disclosed to the employee
who has been disciplined. Therefore, an employee who challenges a disciplinary
action of Level 2 or above, which was based upon information gathered during
a Category 1 alleged mistreatment investigation, may make a written request
for a copy of the report. A copy of the investigator's report with supporting
documents may be released to the employee, provided the investigator's assessment
and evaluation of the evidence have been redacted. This would include, but
not be limited to: findings, conclusions, recommendations and opinions of
the investigator. The report and all supporting documents shall be edited
to protect youth confidentiality.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 29, 2000.
TRD-200002248
Steve Robinson
Executive Director
Texas Youth Commission
Effective date: April 18, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 424-6244