ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part VII. State Office of Administrative Hearings Chapter 155. Rules of Procedure 1 TAC sec.sec.155.3, 155.5, 155.11, 155.15, 155.22, 155.23, 155. 25, 155.27, 155.33, 155.45 The State Office of Administrative Hearings adopts amendments to sec.sec.155. 3, 155.5, 155.11, 155.15, 155.22, 155.23, 155.25, 155.27, 155.33, and 155.45, concerning the rules of practice and procedure before the Office, without changes to the proposed text as published in the April 11, 1995, issue of the Texas Register (20 TexReg 2689). The amendment to sec.155.25, concerning prehearing conferences, are adopted to streamline procedures in contested case hearings. The amendments add five matters to the list of prehearing topics, rearrange the topics in probable order of occurrence in a contested case proceeding, and move all other topics in the prehearing conference rule to sec.155.27. The amendment to sec.155.27, concerning orders, change the references in the rule to orders instead of prehearing orders because judges issue many orders at other than the prehearing stage of a case, and delete specific requirements (e.g., a 14-day deadline and required supplementation of prehearing statements) so that judges can tailor orders to the specific needs of each case. The amendment to sec.155.33, concerning motion practice, are adopted to streamline procedures and reflect more closely the needs and practices of participants in contested case hearings. The amendments treat motions for continuance separately from other motions, creating a five-day filing deadline except for good cause shown, requiring service on the same date filed for motions for continuance filed five days or less prior to hearing, changing the deadline for responses to motions for continuance from seven to three days after receipt, and requiring parties asserting "good cause" to be prepared to prove the assertion. The amendments concerning other motions change the filing deadline from 15 to seven days prior to hearing, change the deadline for responses to motions from seven to five days after receipt, and require parties asserting "good cause" to be prepared to prove the assertion. The amendments to sec.sec.155.3, 155.5, 155.11, 155.15, 155.22, 155.23, and 155. 45 are adopted to change the statutory citations in the rules, because the statutes referenced, the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a, and Texas Civil Statutes, Article 6252-13f, were repealed and reenacted as Chapters 2001 and 2003 in Title 10 of the Texas Government Code, effective September 1, 1993. No comments were received regarding adoption of the amendments. The amendments are adopted under the Government Code, Chapter 2003, which authorizes the State Office of Administrative Hearings to conduct contested case hearings; and Government Code, Chapter 2001, sec.2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 12, 1995. TRD-9505915 Shelia A. Bailey Deputy Chief Administrative Law Judge State Office of Administrative Hearings Effective date: June 6, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 475-4993 Chapter 157. Temporary Administrative Law Judges 1 TAC sec.157.1 The State Office of Administrative Hearings adopts an amendment to sec.157. 1, concerning the employment of temporary administrative law judges, without changes to the proposed text as published in the April 11, 1995, issue of the Texas Register (20 TexReg 2692). The amendment is adopted because the Administrative Procedure and Texas Register Act (APTRA) was repealed and reenacted as the Administrative Procedure Act (APA) in Title 10 of the Texas Government Code, effective September 1, 1993, necessitating the changing of references to the repealed statute's short title to reflect the statute's new short title. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 2003, which authorizes the State Office of Administrative Hearings to conduct contested case hearings; and Government Code, Chapter 2001, sec.2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 12, 1995. TRD-9505914 Shelia A. Bailey Deputy Chief Administrative Law Judge State Office of Administrative Hearings Effective date: June 6, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 475-4993 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 404. Protection of Clients and Staff Subchapter A. Abuse, Neglect, and Exploitation in TDMHMR Facilities 25 TAC sec.sec.404.1-404.17 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.404.1-404.17, concerning abuse, neglect, and exploitation in TDMHMR facilities. Sections 404.3-404.11 and 404.14-404.16 are adopted with changes to the text as published in the February 24, 1995, issue of the Texas Register (20 TexReg 1320). Sections 404.1-404.2, 404.12-404.13, and 404.17 are adopted without changes and will not be republished. The new sections outline the department's responsibilities relating to reporting and responding to allegations of abuse, neglect, and exploitation in TDMHMR facilities to the Texas Department of Protective and Regulatory Services (TDPRS). In accordance with House Bill 7 (72nd Legislature), responsibility for investigations of allegations of abuse, neglect, and exploitation of persons served by TDMHMR facilities transferred to TDPRS in September 1992. The proposal of companion sections represents the clear delineation of each agency's responsibilities relating to reporting allegations of abuse, neglect, and exploitation; investigation of the allegations; and action taken as a result of the allegation and investigation. A definition of "child" is added to sec.404.3. Also in sec.404.3 (and throughout the subchapter), the term "clinical issues" is changed to "clinical practice," and an explanation of what the phrase includes is added. The definition of "Office of Facility Investigations, TDPRS," is deleted because it is not used in the subchapter. The definition of "head of the facility" is revised to include the designee of the superintendent or director of the facility. The term "or designee" is deleted throughout the subchapter since it is now included in the term "head of the facility." The definition of "sexual abuse" is revised to clarify that the term "with sexual intent" applies equally to each of the terms listed ("kissing, hugging, stroking, and fondling. .."). The definition of sexual exploitation is revised to clarify that it does not include obtaining information about a patient's sexual history within standard accepted clinical practice. The definition of "neglect" in sec.404.4(a)(3) is revised to incorporate language included in the Protection and Advocacy for Mentally Ill Individuals Act (42 CFR sec.10801 et seq). It is clarified that, in accordance with current procedure, complaints relating to staffing ratios or treatment plan issues which do not relate to a specific incident of abuse or neglect will continue to be referred to the head of the facility for administrative investigation and action. The term "abuse" is replaced with "abuse, neglect, or exploitation" in sec.404.4(c). In addition, sec.404.4(c)(4) is revised to include additional examples of items that may be referred back to TDMHMR for administrative investigation and action. It is clarified in section 404.5(c) that pregnancy of a person served must be reported for investigation as abuse, neglect, or exploitation if there is medical verification that there is "a reasonable expectation" that conception could have occurred while the person was a resident of the facility or contractor. Section 404.5(e) is revised to clarify that employees found to have made false statements of fact during an abuse investigation are also subject to disciplinary action. Paragraph (f) is added to the section to clarify that in addition to reporting to TDPRS, employees are required to take appropriate steps to safeguard evidence, if any. Similar language was formerly cited as sec.404.6(b). The title of sec.404.6 is changed to "Reporting of Aggressive Actions by Persons Served Other Than Sexual Abuse" to better reflect the section's content. Section 404.6(a) is revised to reference Chapter 404, Subchapter G (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). Section 404.6(b) is deleted; its content is moved to sec.404.5(f). Section 404.7(b)(1) has been revised to clarify that the head of the facility may take immediate action concerning an employee even if the employee is a physician, nurse, or dentist, and the allegation has been referred to peer review. It is also clarified that employees may be terminated pending investigation in accordance with procedures outlined in sec.3.112 of the Human Resources Operating Instruction (relating to Separations, Suspensions, and Demotions). Section 404.7(b)(2) is revised to clarify that persons served who are involved in aggressive action, whether reported to TDPRS (if sexual abuse) or investigated according to Chapter 404, Subchapter G (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities) should be reported to their treatment team or interdisciplinary team. Section 404.7(b)(4) is revised to clarify that the parents, spouse, or other appropriate relative of the alleged victim are only notified of the allegation with the consent of the person served or his or her guardian. Similar clarifications are made to sec.404.9(i) and sec.404.10(a)(6). New sec.404.8(c) is added to clarify requirements for reporting allegations of abuse, neglect, or exploitation by physicians, nurses, or dentists to the TDMHMR Medical, Nursing, or Dental Director, as appropriate. Old 404.8(c) is renumbered as (d). It is clarified throughout sec.404.9 that the finding of TDPRS is only a recommendation, and that TDMHMR makes the final determination of the outcome of the investigation. This clarification appropriately reflects TDPRS' advisory relationship with TDMHMR. Language in sec.404.9(b)(2) is revised to parallel language in Chapter 710, Subchapter A (relating to Abuse and Neglect of Persons Served by TDMHMR Facilities). In sec.404.10(2)(D), the definition of neglect is revised to correspond with the definition of neglect found in the Protection and Advocacy for Mentally Ill Individuals Act (42 CFR sec. sec.10801 et seq). It is clarified that the employee's work record is the record referred to in sec.404.10(1)(C). Section 404.10(4) is revised to clarify the documentary evidence the employee who has been disciplined is entitled to review. Section 404.10(5) is revised to reflect that, pending investigation, the head of the facility may terminate an employee in accordance with procedures outlined in sec.3.112 of the Human Resources Operating Instruction. Section 404.10(6) is revised to reflect that the grievance is with the disciplinary action taken, not the findings of the investigation. It is clarified throughout sec.404.11 that the finding of TDPRS is only a recommendation, and that TDMHMR makes the final determination of the outcome of the investigation. This clarification appropriately reflects TDPRS' advisory relationship with TDMHMR. Section 404.14(a)(2) is revised to delete reference to training on definitions and instead focus training on acts and signs of possible abuse, neglect or exploitation. It is also clarified that training includes methods of preventing abuse, neglect, or exploitation. The term "accused" is deleted from sec.404.15(b)(3) and replaced with "alleged perpetrator"; information that may be provided to the alleged perpetrator is clarified. Section 404.16 is revised to reflect updated references. A public hearing to accept oral testimony relating to the proposed subchapter was held on March 7, 1995, in Austin, where testimony was received from five individuals or organizations, including: RAJ Court Monitor, Austin; Advocacy, Inc., Austin; Texas Mental Health Consumers, Austin; Mary Dees, Austin; and Dian Cox, Austin. In addition, written comments were received during the public comment period from: Advocacy, Inc, Austin; TEXAMI, Austin; and Clyde Preddy, Bryan. All commenters offered recommendations for changes. A commenter asked that TDMHMR and TDPRS work together to develop procedures that determine and remedy deficiencies and conflicts that impair objective and true findings in abuse and neglect cases. The department responds that the process of contemporaneously proposing companion rules for public comment has provided both agencies with significant opportunity to identify and attempt to remedy a variety of issues relating to the abuse and neglect process. It is our hope that the adoption of these subchapters represents a step in the right direction toward improving the quality of investigations. The agencies will continue to work together in identifying and remedying difficulties as they arise. A commenter noted that although prevention is listed in the purpose, the subchapter does not actually address the issue. The department responds that prevention of abuse, neglect, and exploitation is an essential part of training required for all employees; preventive skills, including identifying burnout and managing anger are included. Language has been added to sec.404. 14(a)(2) to reflect this. A commenter requested that the decision to have TDPRS notify law enforcement be reconsidered. The commenter noted that MHMR staff should be responsible for reporting allegations that should be reported to law enforcement. The department responds that the decision to have TDPRS report crimes to law enforcement was determined to be the most efficient means of accomplishing this very important responsibility. TDPRS is familiar with the types of allegations that need to be reported to law enforcement. Language in sec.404.7(a) requires the APS investigator, when notifying the head of the facility of the allegation, to inform the head of the facility at that time whether or not the allegation will be reported to law enforcement. If the APS investigator indicates that he or she will not be making a report to law enforcement, the head of the facility may always elect to do so if he or she believes it is appropriate. Similarly, staff members are not precluded from contacting law enforcement if they wish to do so. One commenter noted that it is somewhat difficult to follow the abuse and neglect process since it is spread over two rules. Both agencies agree, and a flow chart has been created and will be distributed with the subchapters. A commenter addressed the need for extensive training for investigators and mental health workers, so they are aware of the potential impact of their words. The commenter noted that it's important for workers to hear from people in the area or locale of the state they work in and take in the ethnic and cultural issues. The department agrees, and considers sensitivity and cultural awareness training essential. The creation of a new "workforce diversity" office within Central Office may help to further enhance the quality of diversity training in the agency. Another commenter observed that the system as created appears to be bifurcated, and does not lend itself to full disclosure of information regarding the process and results of the investigation. The commenter asked several questions relating to how the information relating to TDPRS recommendation and the facility's finding would be communicated to interested parties and data maintained. The department responds that sec.404.9(h) and (i) have been revised to reflect that notifications will include both TDPRS' recommended finding and the head of the facility's final determination. Data concerning both the recommendation and the finding is maintained on the AN-1-A. Several commenters recommended that a process be established for appealing the determination of whether abuse is confirmed or unconfirmed by the head of the facility. The department agrees with this recommendation, and a process has been incorporated in sec.404.9(j). A commenter noted that the rules give the head of the facility a great deal of authority. The commenter noted that not only can he or she overturn the TDPRS ruling, but he or she has unlimited judgment in how he or she will protect the victim. The commenter suggested adding more guidance. The department responds that the head of the facility isn't actually overturning TDPRS' ruling: rather, he or she is acting on a recommendation of TDPRS. Because TDPRS is only in an advisory role to TDMHMR, the head of the facility must have the ability to review the case and make the final determination. With regard to how to protect the victim, each situation is different, and it would not be feasible to offer a set of guidelines outlining actions to be taken in each situation. The head of the facility must make judgments concerning the most effective means of protecting the victim. Several commenters expressed concern about the inclusion of the definitions for "abuse of a child" and "neglect of a child," noting that certain aspects of these definitions did not seem appropriate for facilities. Other commenters noted that the definitions rested on observable and material impairment in the child's growth, development, or psychological functioning as opposed to the mere act of abuse. Several commenters offered specific recommendations concerning language that might be added to improve the definitions. The department agrees that the definitions are somewhat confusing, but is required by the Health and Human Services Commission to use them. The definitions are taken directly from the Family Code and cannot be revised except statutorily. Section 404.9 has been revised to delete reference to training on the specific definitions found in this subchapter; in its place, we have noted that training will instead focus on specific acts and signs of abuse, neglect, or exploitation that should be reported. In practice, TDPRS will have responsibility for reviewing all allegations after completing an investigation to determine whether or not the incident would fall into the categories of abuse or neglect of a child and statistics reported to HHSC. Concerning the definition of "neglect," several commenters requested that the definition of neglect found in the Protection and Advocacy for Mentally Ill Individuals Act (42 CFR sec.10801 et seq.) be used. The department agrees, and the definition has been added to sec.404.4 and sec.404.10. As is currently the case, however, complaints related to staffing ratios and treatment planning issues which are not related to a specific incident of abuse or neglect will continue to be referred back to TDMHMR for administrative investigation and action. With regard to sec.404.5(a), a commenter expressed concern about the hour timeframe for reporting abuse. The commenter noted that many things can happen to evidence in one hour. The department responds that one hour is provided as the maximum timeframe in which abuse or neglect should be reported. Generally, it will not take this long, although dealing with the immediate situation (e.g. , taking care of the victim) may preclude immediate reporting. Section 404.5(f) requires employees to take appropriate steps to safeguard evidence, if any. Relating to sec.404.5(e), a commenter noted that the department should take disciplinary action against employees who give false information, deny, or withhold information through the investigatory process. The TDMHMR Human Resources Operating Instruction states that employees may be subject to disciplinary action for making false statements of fact during investigations. Similar language has been added to this section. Concerning the same section, the commenter also recommended that disciplinary action include, at minimum, leave without pay for a specified number of days. The commenter also noted that a record should be kept of individuals who fail to report and appropriate action taken if a pattern occurs with a particular individual. The commenter noted that failure to report constitutes failure to provide a safe environment, and should be treated as neglect. The department responds that the head of the facility must be permitted the ability to judge the most appropriate means of disciplining an employee for an action, including failure to provide information in an investigation. All disciplinary actions are documented,and it is reasonable to expect that disciplinary action would be more severe for those individuals who showed a pattern of such action. Also concerning sec.404.5(a), a commenter suggested that more emphasis should be placed on immediate reporting, and that only a few excuses, including inoperable phones, inability to release a patient from hold, or no client or staff within voice range physically free to make a call, should be considered significant enough to overlook failure to report within one hour. The commenter expressed concerns that evidence can be destroyed or lost and accounts can be compared and adjusted within one hour. The department responds that it takes the one-hour reporting mandate very seriously, and requires that sufficient justification exist if the mandate is not met. However, it would not be feasible to identify every situation in which it would or would not be acceptable and list them. As previously noted, sec.404.5(f) requires employees to take appropriate steps to safeguard evidence, if any. With regard to sec.404.7(a), a commenter expressed concern that the APS investigator might not have sufficient information to respond to the questions of law enforcement when reporting allegations of criminal action to them. The department responds that APS investigators are aware of the information law enforcement officials need to have, and would attempt to obtain this information from the reporter prior to calling law enforcement. Concerning the same section, a commenter noted that the requirement that TDPRS report to law enforcement should not preclude TDMHMR employees from also doing so. The department responds that nothing in the subchapter currently precludes such action. Relating to sec.404.7(b), a commenter suggested that the one-hour timeframe for ensuring appropriate medical care was too long. The commenter noted that a person could bleed to death in 15 minutes or less. The department responds that the one-hour timeframe is intended to allow some assessment of the severity of the incident. If someone were bleeding to death, medical care would be sought immediately; medical care for a very minor injury, on the other hand, might be delayed for a short amount of time (no more than one hour) to allow staff to take care of other responsibilities (including securing evidence). A commenter noted that sec.404.7(b)(1) allowed an accused employee to continue in his or her position pending the investigation. The commenter suggested that the person served has a legal right to protection from harm during the investigation, and should not be subjected to the fear and intimidation of having the employee remain on staff during an investigation. The commenter also noted that if the allegation involves medical or nursing staff, the person receiving services should be reassigned immediately to a different doctor or nurse until the investigation is completed. The department responds that employees may not actually be in direct care positions or have regular contact with the person they are alleged to have abused or neglected. As such, some employees may be able to remain in their positions until completion of the investigation. The head of the facility must make a decision which ensures the safety of persons served. Language has been added to sec.404.7(b)(1) clarifying that these provisions also apply to physician, dentists, or nurses who are referred for peer review. With regard to sec.404.7(b)(5)(B), a commenter objected to limiting the investigation of unknown injuries to those determined by a physician to be the result of abuse or neglect. The department responds that the referenced section addresses the need for the physician to document all medical treatment provided in response to an allegation involving verbal abuse, physical abuse, or sexual abuse. The commenter's concern actually relates to language found in Chapter 404, Subchapter G (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). Because the physician may be one of the only people actually examining the injury, it is appropriate that he or she should make a determination of whether or not the injury is the result of abuse or neglect. If other staff members have reason to believe that the injury is the result of abuse or neglect, however, they have an obligation to report the information to TDPRS. A commenter noted that sec.404.8 does not include criteria to delineate when allegations are or are not referred to peer review to ensure objectivity and consistency. The commenter noted that the criteria were expected to be included. The department responds that the term "clinical issues" has been replaced with "clinical practice," and language has been added to the definition of clinical practice in sec.404.3 to attempt to establish some parameters. The same commenter noted that peer review has now been extended to dentists, and observed that it is conceivable that some allegations against psychologists and social workers might also be appropriate for referral to peer review. The department responds that physicians, nurses (LVNs and RNs), and dentists actively engage in peer review as a part of their profession; psychologists and social workers do not. As a result, peer review within this subchapter is only extended to physicians, nurses, and dentists. With regard to sec.404.9(b), a commenter objected to language allowing the head of the facility to determine when the review authority will review unfounded allegations. The commenter recommended that review of unfounded allegations be mandatory. The department responds that making review of the cases mandatory would be an ineffective use of resources in many situations. Instead, the head of the facility should be able to review the reports, determine which cases appear to need a second look, and utilize the review authority in this fashion. Concerning sec.404.9(d), a commenter suggested that in all cases where there is a disagreement between the TDPRS investigation and the head of the facility's review, it should be examined by both TDMHMR and TDPRS CO in such a manner as to understand the reasons for the discrepancies between the findings. The department responds that the "request for review of finding," which may be submitted by the head of the facility to the Central Office of TDPRS, serves this purpose. If the head of the facility has reason to believe that TDPRS' recommendation concerning the investigation should have been different, he or she may request that the Central Office of TDPRS review the head of the facility's reasons for making a different determination, and TDPRS may revise its recommendation accordingly. With regard to sec.404.9(i), a commenter suggested that a specific timeframe for providing notification should be added. The department agrees, and appropriate language has been added to both sec.404.9(h) and (i). Concerning sec.404.10, several commenters recommended establishing a set of procedures which permit the head of the facility to appeal the findings of the APS investigator but which makes the appeal decision final. An appeal process (request for review of finding) exists, but TDPRS relationship with TDMHMR is advisory, not regulatory. As such, the appeal decision cannot be final. Another commenter recommended creating an automatic review within the TDMHMR system to review findings by the head of the facility if different from TDPRS findings. The department responds that a process of appealing the head of the facility's finding through the Office of Consumer Services and Rights Protection has been established, and may be accessed by the reporter or the person served or his or her legal guardian. Although the department gave serious consideration to an automatic appeal, it determined that limiting the process to those cases in which it was requested would be a more effective use of resources. Also concerning sec.404.10, a commenter expressed a belief that the elimination of abuse at TDMHMR facilities requires modification of the grievance process for those who commit abuse. The department responds that agency employees have a property right to their jobs, and elimination of this right is not within the department's authority. As such, the grievance process must continue to exist. With regard to 404.10(6), a commenter recommended that family members should be notified immediately when an employee who has been disciplined because of an abuse, neglect, or exploitation investigation files a greivance. The department responds that notification is sent as soon as is feasibly possible. The same commenter recommended that 404.10(7) be revised to read, "The head of the facility shall notify the APS investigator who conducted the investigation and request his attendance at the hearing should the employee that committed the abuse and/or neglect violation request a grievance hearing. " Although the head of the facility will, more often than not, ask the investigator to attend the hearing, there may be situations in which it is not necessary. As such, the more permissive language currently found in the subchapter is a more accurate reflection of procedure. With regard to sec.404.14, a commenter noted that emphasis on training should include not only abuse and neglect rules but also prevention. The department agrees, and indeed prevention has historically been an important part of the abuse and neglect training. Language in sec.404.14(a)(2) has been revised to reflect its inclusion. Concerning sec.404.15, a commenter suggested that it is not enough to inform the person served of the grievance hearing. The commenter noted that the person served has a vested interest and therefore should have an opportunity to actively participate in the hearing. The commenter recommended adding language requiring the department to inform the person served of "the name of the hearing officer and the procedures to follow to participate in that grievance to the extent allowed by law." The commenter also expressed a belief that the State Hearings Examiners Office should be responsible for conducting grievance hearings for TDMHMR employees. The department responds that the purpose of a grievance hearing is to address any disciplinary action taken against the alleged perpetrator. It is not a hearing to determine whether or not abuse, neglect, or exploitation occurred. If the person served, his or her legal guardian, or the reporter is not satisfied that an appropriate determination of whether or not abuse, neglect, or exploitation has occurred, he or she may appeal the finding through either TDPRS or TDMHMR's Office of Consumer Services and Rights Protection. Concerning the commenter's belief that the State Hearing Examiners Office should be responsible for conducting TDMHMR employee grievance hearings, a legislative amendment to the Government Code would be required before any such change could take place. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.404.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Adult Protective Services (APS) investigator-An employee of the Texas Department of Protective and Regulatory Services (TDPRS) with expertise and demonstrated competence in conducting investigations. Agent-Any individual not employed by the facility but working under the auspices of the facility, such as a volunteer, a student, etc. Allegation-A report by a person believing or having knowledge that a person receiving services has been or is in a state of abuse, exploitation, or neglect as defined in this subchapter. Child-A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. Clinical practice -Relates to issues of potentially or allegedly unsafe nursing, dental, or medical practice or violations of the Nursing Practice Act, Licensed Vocational Nurse Title Act, Dental Practice Act, or Medical Practice Act. These include acts or omissions of the physician, dentist, or nurse which result from a lack of competence in their profession, impaired status, or failure to provide adequate medical, nursing, or dental care to an individual served. Confirmed-Term used to describe an allegation of abuse, neglect, or exploitation which is supported by the preponderance of the evidence. Contractor-Any organization, entity, or individual associated by contract in a working alliance with a facility. Department-The Texas Department of Mental Health and Mental Retardation. Designee-A staff member immediately available who is temporarily or permanently responsibilities of the head of the facility. Facility-Any institution, program, or service operated by the department. Head of the facility-The superintendent or director of a facility or his or her designee. Incitement-To spur to action or instigate into activity; implies responsibility for initiating another's actions. Inconclusive-Term used to describe an allegation leading to no conclusion or definite result due to lack of witnesses or other relevant evidence. Mental health services provider-An individual, licensed or unlicensed, who performs or purports to perform mental health services, including a: (A) licensed social worker as defined by Section 50.001, Human Resources Code; (B) chemical dependency counselor as defined by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes); (C) licensed professional counselor as defined by Section 2, Licensed Professional Counselor Act (Article 4512g, Vernon's Texas Civil Statutes); (D) licensed marriage and family therapist as defined by Section 2, Licensed Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes); (E) member of the clergy; (F) physician who is "practicing medicine" as defined by Section 1.03, Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes); (G) psychologist offering "psychological services" as defined by Section 2, Psychologists' Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes); (H) registered nurse as defined by law. Nonserious physical injury-Any injury determined not to be serious by the examining physician. Examples of nonserious injury may include the following: superficial laceration, contusion, abrasion. Office of Consumer Services and Rights Protection -The office located at the Texas Department of Mental Health and Mental Retardation. Peer review-A review of clinical and/or medical practice(s) by peer physicians and/or dentists, or a review of clinical nursing practices by nurses. Perpetrator-The person who has committed an act of abuse, neglect, or exploitation. Perpetrator unknown -Term used to describe instances in which abuse, neglect, or exploitation is confirmed but positive identification of the responsible person cannot be made, and in which self-injury has been eliminated as the cause. Person served-Any person receiving services from the department, including those persons who are physically away from the facility but who are still carried on the rolls of the facility. Preponderance of evidence-The greater weight of evidence, or evidence which is more credible and convincing to the mind. Prevention and Management of Aggressive Behavior (PMAB) -The department's proprietary risk management program which uses the least intrusive, most effective options to reduce the risk of injury for persons receiving services and for staff from acts or potential acts of aggression. Reporter-The person filing a report of alleged abuse, neglect, or exploitation, whether the victim of alleged abuse, neglect, or exploitation, a third party filing a report on behalf of the alleged victim, or both. Retaliatory action -Any action intended to inflict emotional or physical harm or inconvenience on an employee or person served that is taken because he or she has reported abuse, neglect, or exploitation. This includes, but is not limited to, harassment, disciplinary measures, discrimination, reprimand, threat, and criticism. Review authority -An individual or panel of individuals who, at the discretion and request of the head of the facility, reviews selected cases of alleged abuse, neglect, or exploitation, including those that are confirmed, unconfirmed, unfounded, or inconclusive. The review authority may include a member of the facility's public responsibility committee. Serious physical injury-An injury determined to be serious by the examining physician. Examples of serious injury may include the following: fracture; dislocation of any joint; internal injury; any contusion larger than two and one half inches in diameter; concussion; second or third degree burn. Sexual abuse-Any sexual activity, including sexual exploitation as defined in this subchapter or sexual assault as defined in sec.22.011 of the Texas Penal Code, involving an employee, agent, or contractor and a person served. Sexual activity includes, but is not limited to, kissing with sexual intent, hugging with sexual intent, stroking with sexual intent, or fondling with sexual intent; oral sex or sexual intercourse; request or suggestion or encouragement by staff for performance of sex with the employee him/herself or with another person served. Sexual exploitation -A coercive, manipulative, or otherwise exploitative pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted clinical practice. Sexually transmitted disease-Any infection of a person served, with or without symptoms or clinical manifestations, that is or may be transmitted from one person to another as a result of sexual contact between persons. Unconfirmed-Term used to describe an allegation of abuse, neglect, or exploitation which is not supported by the preponderance of the evidence. Unfounded-A finding that an allegation of abuse, neglect, or exploitation is spurious or patently without factual basis. sec.404.4. Abuse, Neglect, and Exploitation Defined. (a) When the alleged perpetrator is an employee, contractor, or agent of the Texas Department of Mental Health and Mental Retardation, or the perpetrator is unknown, abuse, neglect, and exploitation shall be defined as follows. (1) Abuse includes: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to a person served; (B) any act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in an injury to a person served; (C) any use of chemical or bodily restraints not in compliance with federal and state laws and regulations; (D) sexual abuse as defined in sec.404.3 of this title (relating to Definitions); and (E) any act or use of verbal or other communication including gestures to curse, vilify, or degrade a person served or threaten a person served with physical or emotional harm. (2) Abuse of a child includes the following acts or omissions by any person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child; (E) sexual contact, sexual intercourse, or sexual conduct, as those terms are defined by sec.43.01, Penal Code, sexual penetration with a foreign object, incest, sexual assault, or sodomy inflicted on, shown to, or intentionally practiced in the presence of a child by another person if the child is present only to arouse or gratify the sexual desires of any person; (F) failure to make a reasonable effort to prevent sexual contact, sexual intercourse, or sexual conduct, as those terms are defined by sec.43.01, Penal Code, sexual penetration with a foreign object, incest, sexual assault, or sodomy inflicted on, shown to, or intentionally practiced in the presence of a child by another person if the child is present only to arouse or gratify the sexual desires of any person; (G) compelling or encouraging the child to engage in sexual conduct as defined by sec.43.01, Penal Code; or (H) causing, permitting, encouraging, engaging in , or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Penal Code) or pornographic. (3) Neglect means a negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment which caused or may have caused physical or emotional injury or death to an individual with mental illness or mental retardation which placed an individual with mental illness or mental retardation at risk of physical or emotional injury or death, and includes an act or omission such as the failure to establish or carry out an appropriate individual program plan or treatment plan for a person served, the failure to provide adequate nutrition, clothing, or health care to a person served, or the failure to provide a safe environment for a person served, including the failure to maintain adequate numbers of appropriately trained staff. (A) Complaints concerning failure to carry out an appropriate individual program plan or treatment plan or involving the failure to maintain adequate numbers of appropriately trained staff which do not relate to a specific allegation of abuse or neglect will be investigated administratively by TDMHMR. (B) Within 24 hours of receipt of such an allegation, the APS investigator will refer the allegation to the head of the facility using the Adult Protective Services Referral Form. (4) Neglect of a child includes: (A) the leaving of a child in a situation where the child 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, or managing or possessory conservator of a child; (B) the following acts or omissions by any person: (i) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) the failure to seek, obtain, or follow through with medical care for the child, 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 child; (iii) the failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away. (5) Exploitation means the illegal or improper act or process of using a person served or the resources of a person served for monetary or personal benefit, profit, or gain. (b) For purposes of this subchapter, the terms "abuse" and "neglect" are understood to incorporate "abuse of a child" and "neglect of a child." (c) Abuse, neglect, or exploitation does not include: (1) the proper use of restraints or seclusion, including PMAB, and the approved application of behavior modification techniques as described in Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion-Mental Health Facilities); Chapter 405, Subchapter G of this title (relating to Behavior Therapy Programs (MH)); and Chapter 405, Subchapter H of this title (relating to Behavior Management-Facilities Serving Persons With Mental Retardation); (2) other actions taken in accordance with the rules of the department; (3) such actions as an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, persons served, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. Such actions do not include acts of unnecessary force or the inappropriate use of restraints or seclusion, including PMAB; or (4) complaints related to rights violations, theft of property, or daily administrative operations of a facility. Such complaints shall be referred to the head of the facility for administrative action by the head of the facility, the facility rights protection officer, or other appropriate parties. sec.404.5. Reporting Responsibilities of All TDMHMR Employees: Reports to Texas Department of Protective and Regulatory Services (TDPRS). (a) Each employee who suspects or has knowledge of, or who is involved in an allegation of, abuse, neglect, or exploitation, shall make a verbal report to the TDPRS immediately, if possible, but in no case more than one hour after the incident. (1) Employees who become aware of a situation at any time after the fact shall make a verbal report to the TDPRS immediately, if possible, but in no case more than one hour after learning of the incident. (2) If the person making the allegation is not an employee, e.g., a person receiving services, a guest, etc., staff shall assist the individual in making the report, if necessary. (b) Without regard to the identity of the alleged perpetrator, suspected sexual abuse shall be reported to the TDPRS immediately, if possible, but in no case more than one hour later by the person making the allegation. An allegation that sexual abuse has been committed by a person receiving services shall be reported following the procedures outlined in this subchapter with the understanding that negligence on the part of staff may have made it possible for the assault to have occurred. (c) Any pregnancy of a person served, provided there is medical verification that there is reasonable expectation that conception could have occurred while the person was a resident of the facility or contractor, or any diagnosis of a sexually transmitted disease in a person served which could have occurred while the person was a resident of the facility shall be reported in keeping with the provisions of this subchapter as possible abuse or neglect. Additional reporting requirements for the head of the facility are described in Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). (d) If there is reason to suspect that a person served was abused, neglected, or exploited prior to admission or during an absence from the facility, the employee shall immediately, if possible, but in no case more than one hour later contact the local Adult Protective Services (APS) investigator or the Abuse Hotline of the TDPRS (1-800-252-5400) and the head of the facility. (e) Failure to make such reports within the allotted time period without sufficient justification shall be considered a violation of this subsection and make the employee subject to disciplinary action and possible criminal prosecution. An employee found to have made a false statement of fact during an abuse investigation is also subject to disciplinary action. (f) In addition to reporting to TDPRS, employees shall take appropriate steps to safeguard evidence, if any, consistent with the procedures described in TDPRS' "Procedures and Techniques for Investigation of Abuse and Neglect." sec.404.6. Reporting of Aggressive Action by Persons Served Other Than Sexual Abuse. With the exception of allegations of sexual abuse by a person served (which shall be reported in keeping with provisions outlined in sec.404.5 of this title (relating to Reporting Responsibilities of All TDMHMR Employees: Reports to Texas Department of Protective and Regulatory Services (TDPRS)), aggressive behaviors by persons receiving services shall be reported and investigated according to procedures outlined in Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). sec.404.7. Responsibilities of the Head of the Facility. (a) Upon receiving a report of an allegation of abuse, neglect, or exploitation, the APS investigator will immediately notify the head of the facility of the allegation and whether or not the allegation will be reported to a law enforcement agency. (b) Immediately upon notification of an allegation of abuse, neglect, or exploitation, if possible, but in no case more than one hour later, the head of the facility shall ensure that adequate medical care has been provided to the victim, and shall take measures to ensure the safety of the person served, including the following actions: (1) If the accused is an employee, including a physician, dentist, or nurse whose case has been referred to a peer review committee, the head of the facility will determine whether action should be taken regarding the employee, which may include terminating employment in accordance with procedures outlined in sec.3.112 of the Human Resources Operating Instruction (relating to Separations, Suspensions, and Demotions), reassigning the employee to a non- direct care area, allowing the employee to remain in his or her current position pending investigation, or granting the employee emergency leave. (2) If a person receiving services has been involved in an aggressive action, the head of the facility will take immediate appropriate action to protect the victim, e.g., one-on-one observation of the accused and/or the victim, separation, etc. The head of the facility shall refer the allegation to treatment team or interdisciplinary team of the involved persons no later than the next working day. Additional appropriate actions shall be taken in accordance with procedures outlined in Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities). (3) If the accused is another person who is known but who is neither a staff member nor a person receiving services, e.g., family member, friend, etc., the head of the facility will effect a restriction on that person's access to the victim pending investigation. The restriction should be documented in the record of the person served. (4) Unless specifically prohibited by Chapter 403, Subchapter K of this title (relating to Client-Identifying Information), Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services), or Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services), the head of the facility, with the consent of the alleged victim or his or her guardian, shall immediately, but in no case later than 24 hours after notification of an allegation of abuse, neglect, or exploitation, notify the parents, spouse, or other appropriate relative of the alleged victim. If contact cannot be made by telephone, the head of the facility will provide notification by certified mail, return receipt requested. (5) If the allegation involves verbal abuse, physical abuse, or sexual abuse, the head of the facility will ensure necessary immediate and ongoing medical and/or psychological attention is obtained for the victim, and, as needed, for the alleged perpetrator, if a person receiving services. (A) Such attention may include treatment for injuries, physician's exam, screening and treatment for sexually transmitted diseases, psychological counseling and support, etc., consistent with the procedures described in TDPRS' "Procedures and Techniques for Investigation of Abuse and Neglect." (B) The physician's exam and treatment of abuse-related injuries shall be documented on the Client Injury/Incident Report form, with a copy submitted to the APS investigator. The physician's documentation during or following the examination should address the injury's cause, age, and treatment, to the extent that the information can be determined, as well as the timing of the medical exam with regard to the date the injury was received. All issues relating to clinical practice will be referred to the medical/clinical director or designee for consultation. (c) The head of the facility shall ensure that APS investigators are afforded immediate access to all records and provided keys as are necessary to carry out an investigation. The head of the facility will assist in whatever way possible to make staff who are relevant to the investigation available in an expeditious manner. (d) The head of the facility shall report allegations of sexual exploitation by a mental health services provider not later than the 30th day after the date the person became aware of the conduct or the allegations to the prosecuting attorney in the county in which the alleged sexual exploitation occurred and any state licensing board that has responsibility for the mental health services provider's licensing. The report shall include: (1) the reporter's name; (2) the alleged victim's name, except that prior to reporting the incident the reporter shall determine whether or not the alleged victim wishes to remain anonymous; and (3) the reasons for suspicion that sexual exploitation has occurred. sec.404.8. Peer Review. (a) If the allegation involves the actions of a physician, dentist, registered nurse, or licensed vocational nurse, the head of the facility, in coordination with the APS investigator and the facility medical or nursing director, as appropriate to the discipline involved, will determine whether the allegation involves the clinical practice of a physician, dentist, registered nurse, or licensed vocational nurse. (1) If the allegation does not involve clinical practice the APS investigator will pursue an investigation. (2) If a determination is made that the allegation involves the clinical practice of a physician, dentist, registered nurse, or licensed vocational nurse, the APS investigator shall turn the allegation over to the head of the facility, who shall immediately refer the allegation to the medical director or nursing director, as appropriate to the discipline involved, for review for possible peer review as follows: (A) for allegations involving physicians or dentists, Operating Instruction 408-2, relating to Investigative Medical Peer Review; and (B) for allegations involving registered nurses and licensed vocational nurses, Operating Instruction 408-1, relating to Investigative Nursing Peer Review. (b) If the allegation is against the medical director, dental director, or nursing director of a facility, it shall be referred to the TDMHMR medical director, TDMHMR dental director, or the TDMHMR nursing director, as appropriate to the discipline involved. (c) All allegations against physicians, nurses (RN or LVN), and dentists, regardless of type or clinical/nonclinical handling, will be reported to the TDMHMR Medical, Nursing, or Dental Director, as appropriate to the discipline, within five working days of the allegation. This report may be brief, but will include the date of the alleged behavior, names of the alleged perpetrator, victims, and reporters, if known,; a brief description of the alleged incident; and a brief description of the investigation planned. (d) The TDMHMR medical director, TDMHMR dental director, or the TDMHMR nursing director, as appropriate to the discipline involved shall ensure that reports of allegations of abuse or neglect are made as required by law to the licensing authority for the discipline under review, e.g., to the Board of Medical Examiners for physicians, the Board of Dental Examiners for dentists, the Board of Nurse Examiners for registered nurses, and the Board of Licensed Vocational Nurses for licensed vocational nurses. sec.404.9. Completion of the Investigation. (a) Upon completion of the investigation, the APS investigator shall submit a complete investigative report, including a statement of the allegation(s), a summary of the investigation, an analysis of the evidence, the investigator's determination as to whether or not abuse, neglect, or exploitation occurred, recommendations resulting from the investigation, and an opinion as to how the allegation(s) might be classified in accordance with the classification system outlined in sec.404.10 of this title (relating to Disciplinary Action). If the allegation involves a minor, the APS investigator shall also include a determination as to whether the incident (whether confirmed or not confirmed) would be classified as abuse of a child or neglect of a child, as appropriate, as defined in this subchapter. The APS investigator shall indicate recommended findings on the "Client Abuse/Neglect Report" (AN-1-A), and submit the signed copy as part of the investigative report. (b) Upon receiving the written investigative report from the APS investigator, the head of the facility may submit the report and concerns articulated by the APS investigator to a review authority of one or more persons. (1) The authority may call witnesses in the course of the review. (2) If the authority is reviewing a case determined by the APS investigator to be "unfounded," it shall consult with the APS investigator as appropriate. If the review authority finds that there is good cause to reopen the investigation (e. g., new evidence or information that was not previously available during the investigation), the head of the facility may contact the local APS supervisor to request that the case be re-opened. (c) Upon completion of the investigation of any allegation, the head of the facility shall take the following actions: (1) review the APS investigator's report; (2) review the authority's report, if applicable; and (3) interview witnesses, if necessary. (d) If, after review, the head of the facility disagrees with the recommended finding of the APS investigator, the head of the facility may request a review of the recommended finding in writing by submitting the "Request for Review of Finding" form to the Deputy Director of APS, TDPRS, P.O. Box 149030, E-561, Austin, TX 78714-9030. The request for review must be filed within 14 calendar days after receiving the investigative report. (1) When filing the request for review, the head of the facility shall include a copy of the report of the review authority, if applicable. (2) TDPRS' recommended finding shall be reviewed by the Deputy Director of APS, TDPRS, and a final recommendation made within 14 calendar days of receipt. (e) The head of the facility shall complete the AN-1-A within 30 days of receipt of the investigative report or final decision of a request for review of the recommended finding by TDPRS and shall ensure that: (1) the information is entered into the Client Abuse and Neglect Reporting System (CANRS); and (2) a copy of the completed AN-1-A is forwarded to the APS investigator for data entry. (f) The head of the facility shall establish a mechanism for evaluating any recommendations concerning problematic patterns or trends identified during the investigation by the APS investigator and the review authority, if applicable. (g) The rights of employees summoned to appear before the review authority or the head of the facility are outlined in the memo titled "Procedures in Abuse and Neglect Investigations and Thurston Rebuttal Proceedings." (h) The APS investigator shall ensure that the reporter is promptly notified in writing of TDPRS' recommended finding, the head of the facility's final determination, and the method of appealing either TDPRS' recommendation or the head of the facility's final determination, if different from TDPRS' recommendation. (i) Unless specifically prohibited by Chapter 403, Subchapter K of this title (relating to Client-Identifying Information), Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services), or Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services), the head of the facility shall ensure that the alleged victim and his or her guardian and, with the consent of the person served or guardian, the parents or other appropriate relatives who were notified of the allegation are promptly notified of TDPRS' recommended finding, the head of the facility's final determination, and the method of appealing either TDPRS' recommendation or the head of the facility's final determination, if different from TDPRS' recommendation. (j) The reporter, person served, or legal guardian of the person served may request an appeal of the head of the facility's determination, if different from TDPRS' recommendation, by notifying the Office of Consumer Services and Rights Protection, TDMHMR, P.O. Box 12668, Austin, TX 78711-2668. sec.404.10. Disciplinary Action. The head of the facility shall be responsible for taking prompt and proper disciplinary action when a charge of abuse, neglect, or exploitation is confirmed by the head of the facility. (1) Disciplinary action shall be based on criteria including, but not limited to: (A) the seriousness of the abuse and/or neglect; (B) the circumstances surrounding the event; (C) the employee's work record; (D) repeat offenses; and (E) if a repeat violation, the length of time between violations. (2) When the head of the facility determines that abuse, neglect, or exploitation has occurred, the incident shall be classified according to the following system: (A) Class I abuse means: (i) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused serious physical injury to a person served; or (ii) any sexual abuse involving an employee, agent, or contractor and a person served, without regard to injury. (B) Class II abuse means: (i) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused nonserious physical injury to a person served; (ii) any act of force or corporal punishment, including striking or pushing a person served, regardless of whether the act results in nonserious injury to a person served; or (iii) exploitation. (C) Class III abuse means any use of verbal or other communication to curse, vilify, or degrade a person served, or to threaten a person served with physical or emotional harm, or any act which vilifies, degrades, or threatens a person served with physical or emotional harm. (D) Neglect means a negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment which caused or may have caused physical or emotional injury or death to an individual with mental illness or mental retardation or which placed an individual with mental illness or mental retardation at risk of physical or emotional injury or death. (3) When the head of the facility determines that abuse, neglect, or exploitation has occurred, the following disciplinary action shall be taken: (A) Class I abuse. The employee shall be dismissed from employment. (B) Class II abuse. The employee shall be placed on suspension for up to ten days, demoted, or dismissed. If the employee is exempt under the provisions of the Fair Labor Standards Act (FLSA), the suspension shall be in compliance with relevant provisions of the FLSA and current TDMHMR personnel policies. (C) Class III abuse, neglect. The employee may receive a written reprimand which shall become a part of the employee's personnel file, or may be placed on suspension for up to ten days, demoted, or dismissed. If the employee is exempt under the provisions of the FLSA the suspension shall be in compliance with relevant provisions of the FLSA and current TDMHMR personnel policies. (4) When disciplinary action is taken against an employee based on abuse, neglect, or exploitation, the head of a facility shall notify the disciplined employee in writing of the disciplinary action and any right to a grievance hearing the employee may have under the department's internal policies and procedures relating to employee grievances. The head of the facility will also provide the employee with a copy of the investigative report. Additional documentary evidence, if any, may be accessed by the employee in accordance with procedures outlined in sec.3.116 of the Human Resources Operating Instruction (relating to Employee Grievances). (5) Nothing in this subchapter shall preclude the head of the facility from taking immediate disciplinary action, including termination of employment in accordance with procedures outlined in sec.3.112 of the Human Resources Operating Instruction (relating to Separations, Suspensions, and Demotions). In such cases, the head of the facility will notify the APS investigator that disciplinary action has been taken and the investigation should proceed. (6) The head of the facility shall ensure that, if requested, the victim and his or her guardian, and with the consent of the person served or guardian, the parents, spouse, or other appropriate relatives are notified in a timely manner if a grievance is filed by the employee regarding the disciplinary action. (7) If requested by the head of the facility, the APS investigator who conducted the investigation shall attend the grievance hearing. sec.404.11. Abuse, Neglect, and Exploitation Investigative Procedures for Facility Contractors, Agents and Independent School District (ISD) Employees. For purposes of reporting, investigating, and preventing abuse, neglect, and exploitation by contractors of state facilities, the procedures described in this subchapter for employees of facilities shall be followed. Each contractor, agent, or independent school district employee who suspects or has knowledge of, or who is involved in an allegation of, abuse, neglect, or exploitation, shall make a verbal report to the TDPRS immediately, if possible, but in no case more than one hour after the incident. (1) An allegation that an employee of a contractor has committed abuse, neglect, or exploitation shall be reported to the TDPRS immediately, if possible, but in no case more than one hour later. Upon notification of such an allegation of abuse, neglect, or exploitation, the APS investigator will immediately notify the administrator of the contract provider and the head of the facility. (2) The investigation of an allegation that an employee of a contractor has committed abuse, neglect, or exploitation shall be handled in accordance with procedures outlined in Chapter 710, Subchapter A, Title 40 (relating to Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities). Allegations involving the clinical practice of a physician, dentist, registered nurse, or licensed vocational nurse shall be referred to the contract provider's medical, dental, or nursing director, as appropriate to the discipline involved, for review for possible peer review and reporting to disciplinary boards in accordance with procedures outlined in sec.404.8 (relating to Peer Review) of this subchapter. (3) Upon completion of an investigation by the APS investigator, the APS investigator shall submit a written report and supporting documents to the administrator of the contract provider and the head of the facility regarding whether there is cause to believe that abuse, neglect, or exploitation has occurred in the incident investigated. If there is any disagreement over the recommended findings, the administrator of the contract provider within 14 calendar days may request a review of the recommended finding in writing by submitting the "Request for Review of Finding" form to the Deputy Director of APS, TDPRS, P.O. Box 149030, E-561, Austin, Texas 78714-9030. (4) The administrator of the contract facility shall notify the head of the facility of any action taken against the accused contract employee. sec.404.14. Staff Training in Identifying and Reporting Abuse, Neglect, and Exploitation. (a) This subchapter shall be thoroughly and periodically explained to all employees, contractors, and agents of each facility as follows: (1) All new employees, contractors, and agents (including physicians) shall receive instruction on the content of this subchapter during their orientation training and prior to beginning work that involves direct contact with any person served. (2) Instruction shall include a thorough explanation of the acts and signs of possible abuse, neglect, or exploitation, the disciplinary consequences of abuse, neglect, or exploitation, the procedures for reporting incidents of abuse, neglect, or exploitation, and methods of preventing abuse, neglect, or exploitation. (3) Within 90 days after the effective date of this subchapter, the head of the facility shall inform all current employees, contractors, and agents (including physicians) of changes to policies and procedures as a result of this subchapter. (b) Those employees, contractors, and agents in frequent contact with persons served shall receive additional instruction on the prevention and therapeutic management of aggressive, combative behavior or similar volatile situations as a unit of instruction within the employee's six months probationary period of employment. Instruction shall comply with standards promulgated by the department. (c) All supervisory personnel shall have a continuing responsibility to keep employees, contractors, and agents (including physicians) currently informed on rules governing abuse, neglect, and exploitation and shall ensure that each employee receives instruction on identifying and reporting abuse, neglect, and exploitation not less than once each calendar year. (d) Instructional materials, audiovisual, and/or other training aids concerning this subchapter shall be developed by the Human Resource Development office, Central Office, in concurrence with the Office of Legal Services and the Office of Consumer Services and Rights Protection. (e) A record shall be kept by the facility office for staff development on each employee receiving instruction or training in compliance with this section, including the date training was provided, content of the training, and the name of the individual conducting the training. sec.404.15. Confidentiality of Investigative Process and Report. (a) The reports, records, and working papers used by or developed in the investigative process and the resulting final report regarding abuse, neglect, and exploitation are confidential and may be disclosed only as provided under law. Information discussed during deliberations of abuse, neglect, and exploitation investigations may not be discussed outside the purview of those deliberations with the exception of the concerns and recommendations which are to be addressed by the appropriate person(s) or as otherwise allowed in sec.404.09 of this title (relating to Completion of the Investigation). (b) Some information may be released as follows: (1) If the allegation is confirmed, the victim and legal guardian or parent (if the person served is a minor) shall be informed in writing of the disciplinary action, if any, taken against the perpetrator, and of the perpetrator's right to request a grievance hearing to dispute the disciplinary action. The notice shall include an offer to inform the person served, legal guardian, or parent (if the person served is a minor) of the occurrence of a grievance hearing upon request. (2) When an allegation is determined to involve the clinical practice of a physician, registered nurse, vocational nurse, or dentist, the person served, legal guardian, or parent (if the person served is a minor) shall be informed that the allegation has/has not been sent to peer review. If sent to peer review, the person served, legal guardian, or parent shall be informed concerning whether or not a report was sent by the peer review committee to the Board of Medical Examiners, Board of Dental Examiners, Board of Nurse Examiners, or Board of Vocational Nurse Examiners. (3) The alleged perpetrator shall be informed of the outcome of the investigation. If disciplinary action is taken, documentary evidence (including the investigative report) will be provided to the employee as outlined in sec.404.10(4) of this title (relating to Disciplinary Action). sec.404.16. References. Reference is made to the following statutes, rules of the department, and attorney general opinions: (1) Texas Family Code, sec.11.01, sec.34.01 et seq; (2) Title 7, Chapter 532, sec.532.011, Texas Health and Safety Code (formerly Texas Civil Statutes, Article 5547-202, sec.2.12); (3) Title 7, Chapter 576, sec.576.005, Texas Health and Safety Code (formerly Texas Civil Statutes, Article 5547-87); (4) Title 7, Subtitle D, Texas Health and Safety Code; (5) Whistleblower Act, Texas Civil Statutes, Article 6252-16a; (6) Texas Penal Code, Chapters 19 and 21, sec.sec.22.01, 22.02, 22.04, 22.05, 22.07, 22.08, 22.10; (7) Human Resources Code, Chapter 48; (8) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); (9) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (10) Chapter 404, Subchapter G of this title (relating to Unusual Incidents Involving Persons Served by TXMHMR Facilities); (11) Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion-Mental Health); (12) Chapter 405, Subchapter H of this title (relating to Behavior Management- Facilities Serving Persons With Mental Retardation); (13) Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services); (14) Chapter 710, Subchapter A, Title 40 (relating to Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities). (15) TDMHMR Human Resources Operating Instruction (OI 406-3), sections relating to: (A) time and attendance; (B) suspension, demotion, and reduction in salary; and (C) employee grievances; (16) Attorney General Opinions H-237 (1974), H-986 (1977), and H-494 (1975); and (17) Attorney General Open Records Decision OR 90-562. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 17, 1995. TRD-9505975 Ann Utley Chair Texas Department of Mental Health and Mental Retardation Effective date: June 15, 1995 Proposal publication date: February 24, 1995 For further information, please call: (512) 206-4516 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.319 The Comptroller of Public Accounts adopts an amendment to sec.3.319, concerning prior contracts, without changes to the proposed text as published in the February 14, 1995, issue of the Texas Register (20 TexReg 1009). One amendment in subsection (a)(2) deletes the requirement that both parties sign the contract. The second amendment in subsection (b)(1) excludes two-party contracts from the prior contract exemption when the exemption is enacted under enabling legislation that allows the exemption when the items are used for or in the performance of a contract. The comptroller is required to make this change in order to comply with the Texas Supreme Court decision in Calvert v. British- American Oil Producing Company, 397 S.W.2d 839. This position applies retroactively to ensure continuity in the comptroller's application of this decision. The third amendment in subsection (c)(4) allows the prior contract exemption for contracts with "open price terms." A comment was received pointing out that the wording in the preamble to the proposed version, citing a change in subsection (d), was in conflict with subsection (d) in the body of the rule, which did not reflect a change. The language in the body of the rule is correct; notice of prior contract or bids do not need to be submitted to the comptroller. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.151.0101 and sec.151.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 16, 1995. TRD-9505948 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 6, 1995 Proposal publication date: February 14, 1995 For further information, please call: (512) 463-4062 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 1. Organization and Administration Personnel and Employment Policies 37 TAC sec.1.27, sec.1.30 The Texas Department of Public Safety adopts amendments to sec.1.27 and sec.1.30, concerning personnel and employment policies, without changes to the proposed text as published in the March 28, 1995, issue of the Texas Register (20 TexReg 2283). The justification for the amendments will be clarification of existing policy and to alleviate any problems that might be caused due to strict interpretation of this section as it was previously adopted and to ensure the public is aware of the current organizational names of the various bureaus of the department. The department adopts these amendments which add direct appointments to make the sections more clear and to harmonize with the direct appointment provision, which provides that certain positions are not subject to entrance examinations or procedures for selection to serve at Headquarters complex. The amendments also rename the Personnel and Training Bureau to Personnel Bureau in order to be appropriately identified in the department's organization. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 2, 1995. TRD-9505911 James R. Wilson Director Texas Department of Public Safety Effective date: June 6, 1995 Proposal publication date: March 28, 1995 For further information, please call: (512) 465-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Services Chapter 710. Protection of Clients and Staff The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.710.1 and sec.710.2; the repeal of sec.sec.710.3-710.20; and new sec.sec.710.3-710.15, in its Protection of Clients and Staff chapter. New sec. sec.710. 3-710.5, 710.7, and 710.8 are adopted with changes to the proposed text as published in the February 24, 1995, issue of the Texas Register (20 TexReg 1329). The amendments to sec.710.1 and sec.710.2; the repeal of sec.sec.710. 3-710.20, and new sec.sec.710.6 and 710.9-710.15 are adopted without changes to the proposed text and will not be republished. The justification for the amendments, repeals, and new sections is to describe TDPRS's responsibilities in conducting investigations of abuse and neglect in TDMHMR facilities. The adoptions also update the rules to reflect changes in policy since the function was absorbed into Adult Protective Services. These rules are companion rules to TDMHMR rules, which were also subject to public comment. The amendments, repeals, and new sections will function by providing accurate information about the state's procedures conducting investigations of abuse and neglect in TDMHMR facilities. A public hearing to accept oral testimony concerning the proposed subchapter was held on March 7, 1995, in Austin, where testimony was received from five individuals or organizations, including: RAJ Court Monitor, Austin; Advocacy, Inc., Austin; Texas Mental Health Consumers, Austin; and several individuals. In addition, written comments were received during the public comment period from: Advocacy, Inc., Austin; an individual; and various TDMHMR staff. Commenters were not specifically in favor or against adoption of these sections. A summary of the comments and TDPRS's responses follow. Comment: A commenter asked that TDMHMR and TDPRS work together to develop procedures that determine and remedy deficiencies and conflicts that impair objective and true findings in abuse and neglect cases. Response: The department agrees and believes that the process of contemporaneously proposing companion sections for public comment has provided both agencies with significant opportunity to identify and attempt to remedy a variety of issues relating to the abuse and neglect process. It is our belief that the adoption of these subchapters represents a step in the right direction toward improving the abuse and neglect process. The agencies will continue to work together in identifying and remedying issues as they arise. Comment: Commenters noted that investigations should begin as soon as possible after an allegation is reported, before evidence deteriorates, and that investigations should be completed in a timely manner. The commenters further noted that statements should be gathered from all witnesses and that evidence should be gathered in an objective manner. Response: The department agrees that ideally all investigations should begin as soon as possible after an allegation is reported. Due to the increase in the number of allegations being reported and the limited resources of the department, language in sec.710.7(d)(1)(A) requires that an investigation begin within 24 hours of the time it is received, by interviewing either the victim, alleged perpetrator, or any collateral witness. Language in sec.710.8(a) requires an investigation be completed within 14 calendar days after an allegation is received and submitted to the head of the facility. Language in sec.710.8(a)(4) requires that the investigative reports include all witness statements and supporting documents. Comment: A commenter stated that it is important to recognize that investigations in psychiatric hospitals are made more difficult by the conditions of the client population. Individuals with mental illness are vulnerable to being discredited. Response: The department agrees that individuals with mental illness and/or mental retardation are vulnerable to being discredited. Being sensitive to the special needs of these populations when gathering witness statements and giving due consideration to their testimony are issues that will continue to be emphasized in staff training. Comment: A commenter questioned the relevance of attaching parts of the psychiatric case record as an appendix to the abuse/neglect investigation. The commenter further stated that instead of using such case information, the investigator should judge the credibility of all people giving testimony based upon a here-and-now judgment. Response: The department agrees that relying on information from a psychiatric case record could be misleading and affect the credibility of the testimony of a person served. As a result of the comment, language has been added to the procedures and techniques for investigation of abuse and neglect to clarify that the credibility of information provided by a person served should be based upon the individual's ability to provide information at the time of the interview. It is further clarified that relying on information contained in a psychiatric case record is inappropriate and such information should not be included as an attachment to an investigative report. Comment: A commenter expressed concern that the language of the sections does not clarify what is to be done when there is not agreement between adult protective services (APS) and the head of the facility on the outcome of an investigation. The commenter further states that if the head of the facility appeals the outcome of an investigation back to APS, the APS appeal decision should be final. If the head of a facility chooses to take actions that are not supported by the appeal finding, the head of the facility must take that responsibility upon him or herself. Response: The department disagrees and believes that the sections as written clarify that the role of TDPRS is to provide a thorough and timely investigation to the head of a facility. Language in sec.710.8(d) allows the head of the facility to appeal the finding of an investigation to the deputy director of Adult Protective Services. Since TDPRS does not have hiring and firing authority over individuals who work in TDMHMR facilities, TDPRS cannot and should not dictate specific personnel action to the state agency which does. Comment concerning sec.710.4(a)(2): Commenters stated that the definition of "neglect" for adults should be revised to incorporate language included in the Protection and Advocacy for Mentally Ill Individuals Act (42 CFR sec.sec.10801 et seq). Response: The department agrees. As a result of comments, the definition of "neglect" has been revised to reflect the language in the Protection and Advocacy for Mentally Ill Individuals Act. The definition has been extended to apply to persons with mental retardation, as well as persons with mental illness. It is clarified that complaints relating to staffing ratios or treatment plan issues which do not relate to a specific incident of abuse or neglect will be referred to the head of the facility for administrative investigation and action. TDPRS has also revised sec.710.4(b)(4) and sec.710.5(b) (4) to be consistent with this change. Comment concerning sec.710.7(c)(3): One commenter expressed concern about the one-hour limit for notifying law enforcement of allegations of physical assault and sexual assault. The commenter stated that TDMHMR staff should be responsible for reporting such allegations to law enforcement. Response: The department disagrees. The decision to have TDPRS report alleged crimes to law enforcement was determined to be the most appropriate method. APS staff are familiar with the types of allegations that need to be reported to law enforcement. Language in sec.710.7(c)(3) requires that APS staff immediately, if possible, but in no case more than one hour later, report allegations involving physical abuse or sexual assault to the appropriate local or state law enforcement agency. Language in sec.710.7(c)(2) requires that APS staff immediately notify the head of the facility or designee as to whether the allegation will be reported to a law enforcement agency. If the APS investigator indicates that he or she will not be making a report to law enforcement, the head of the facility may always elect to do so if he or she believes it is appropriate. Similarly, staff members are not precluded from contacting law enforcement if they wish to do so. TDPRS is adopting this section without change. Comment: One commenter expressed concern that a TDPRS investigator may not be available at all times to receive allegations and notify law enforcement when appropriate. Response: The department disagrees. Reporting systems are in place across Texas where an investigator or intake worker is available 24 hours a day to receive allegations of abuse, neglect, and exploitation. Eventually, all intakes will be phoned into a centralized statewide intake system. Comment: One commenter stated that it is important that photographs of injuries be taken immediately, and sometimes at a later point in time, because sometimes it takes a while for a bruise to become visible. Response: The department agrees and is adopting this section without change. Language in sec.710.8(a)(3) requires that the APS investigator submit photographs depicting the existence of injuries (taken within 24 hours after receiving the report) or the non-existence of injuries, when appropriate, to the head of the facility as part of the investigative report. Comment: Another commenter observed that the system as created appears to be bifurcated, and does not lend itself to full disclosure of information regarding the process and results of the investigation. The commenter asked several questions relating to how the information relating to the TDPRS finding and the facility's agreement or disagreement with the finding would be communicated to interested parties. Response: The department agrees and as a result of comment, the department has revised sec.710.8(g) to indicate that the investigator will notify the reporter in writing of the outcome of an investigation and whether or not the head of the facility concurs with the finding. Comment: A commenter requested that language be added to clarify that an investigation is initiated by face-to-face contact. Response: The department agrees that a face-to-face contact is preferable when initiating an investigation. However, due to growing caseloads, large geographic areas to cover, and the fact that some allegations are reported long after they occur, language was not added to require a face-to-face contact within 24 hours. As a result of comment, language has been added in sec.710.7(d)(1)(B) which requires a face-to-face contact within 24 hours if the allegations involve sexual abuse or physical injury of a person served. Comment: A commenter noted that dental services have been added under what should be referred to clinical peer review. The commenter further notes that it is conceivable that some allegations against psychologists and social workers might also be appropriate for referral to peer review. Response: The department disagrees. Physicians, nurses, and dentists actively engage in peer review as a part of their profession. Psychologists and social workers do not. As a result, peer review within this subchapter, is only extended to physicians, nurses, and dentists. Comment: Another commenter noted that if the person served or family of the person served disagrees with the TDPRS finding, the appeal goes to TDPRS. The commenter further notes that this may be a conflict of interest in that the same agency who conducted the investigation is reviewing its own decisions. Response: The department disagrees. TDPRS is the state agency which is mandated by statute to investigate allegations of abuse, neglect, and exploitation in TDMHMR facilities. The goal of TDPRS is to conduct a thorough and timely investigation as a means of protecting the individuals served in TDMHMR facilities. No other state agency is vested with the responsibility to review appealed cases. Comment: Commenters expressed concern about the inclusion of the definitions for "abuse of a child" and "neglect of a child," noting that certain aspects of these definitions did not seem appropriate for facilities. Other commenters noted that the definitions rested on observable and material impairment in the child's growth, development, or psychological functioning as opposed to the mere act of abuse. Response: The department disagrees. The adoption of these definitions has been mandated by the Health and Human Services Commission. The definitions are taken directly from Chapter 34 of the Texas Family Code and cannot be revised except statutorily. Comment: One commenter noted that it is somewhat difficult to follow the abuse and neglect process since it is spread over two sections. Response: The department disagrees and believes the sections set forth the process by which investigations will be conducted. However, a flow chart has been developed which summarizes the process and will be available upon request. Comment: A commenter addressed the need for training for investigators so they are aware of the potential impact of their words. The commenter noted that it's important for workers to hear from people in the area of the state they work in and take in the ethnic and cultural issues. Response: The department agrees and will review its training curricula to determine if these issues are adequately addressed. Comment: A commenter expressed concern about investigative reports being completed in a timely manner and the process of awarding extensions when they cannot be completed within the specified timeframe. Response: The department disagrees. Language in sec.710.8(a) specifies that an investigation is to be completed within 14 calendar days after receipt of the allegation and submitted to the head of the facility. Language in sec.710. 8(c) authorizes the investigator to request an extension if additional time is required to complete an investigation, clarifies that extensions must be approved by the local supervisor, and states that the head of the facility is to be notified of extensions as they are granted. Comment: A commenter notes that sec.710.8 sets forth what should be included in an investigative report, but does not specify what is to be included in an analysis of the evidence. Response: The department agrees and as a result of comment, language has been added to sec.710.8(a)(1)(C) to clarify what information is to be included in an analysis of the evidence. Comment: A commenter notes that in sec.710.8(f) it is not clear what agency the Office of Facility Investigations is affiliated with. Response: The department disagrees and is adopting the subsection without change. Language in sec.710.3, Definitions, specifies that the Office of Facility Investigations is an office within the Texas Department of Protective and Regulatory Services. Comment: A commenter notes that sec.710.8(g) requires the investigator to notify the reporter in writing of the outcome of an investigation. This was formerly the responsibility of the facility. Response: The department agrees. Since the department will no longer identify the reporter of an allegation except in certain situations, it will be necessary for the investigator to notify the reporter of the outcome of an investigation. Comment: A commenter notes that in sec.710.12(d), the meaning of "de- identified" is unclear. Response: The department agrees. As a result of comment, TDPRS has changed the term "de-identified" to "concealed" in subsections (b)-(e). In addition to changes resulting from public comments, TDPRS is adopting sec.710.3 with changes to several definitions. The name "clinical issues" is changed to "clinical practice" and the definition is clarified. The definition of "peer review" is revised for clarification. The definition of "sexual exploitation" is revised as a result of anticipated changes in state legislation. The definition of "sexually transmitted disease" is revised to agree with TDMHMR rules. In sec.710.7(d)(1)(A), TDPRS is revising the language to be consistent with another section. In sec.710.8(a)(1) and sec.710.8(b), TDPRS is deleting the phrase "blacked-out or de-identified" and inserting the word "concealed." Also, in sec.710.8(a)(1)(F), TDPRS is revising the section number and title to agree with changes TDMHMR is making on their rule adoption. Subchapter A. Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities 40 TAC sec.710.1, sec.710.2 The amendments are adopted under the Human Resources Code, Title 2, Chapter 48, which provides the department with the right to investigate reports of abuse, exploitation, or neglect of an elderly or disabled person; and under Texas Civil Statutes, Article 4413(503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to investigations of abuse and neglect from TDMHMR to TDPRS. The amendments implement sec.1.06 of Acts 1991, 72nd Legislature, First Called Session, Chapter 15, as amended by Acts 1993, 73rd Legislature, Chapter 747, sec.1. The amendments also implement Texas Civil Statutes, Article 4413(503), sec.12(c). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 16, 1995. TRD-9505921 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: June 15, 1995 Proposal publication date: February 24, 1995 For further information, please call: (512) 450-3765 40 TAC sec.sec.710.3-710.20 The repeals are adopted under the Human Resources Code, Title 2, Chapter 48, which provides the department with the right to investigate reports of abuse, exploitation, or neglect of an elderly or disabled person; and under Texas Civil Statutes, Article 4413(503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to investigations of abuse and neglect from TDMHMR to TDPRS. The repeals implement sec.1.06 of Acts 1991, 72nd Legislature, First Called Session, Chapter 15, as amended by Acts 1993, 73rd Legislature, Chapter 747, sec.1. The repeals also implement Texas Civil Statutes, Article 4413(503), sec.12(c). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 16, 1995. TRD-9505922 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: June 15, 1995 Proposal publication date: February 24, 1995 For further information, please call: (512) 450-3765 40 TAC sec.sec.710.3-710.15 The new sections are adopted under the Human Resources Code, Title 2, Chapter 48, which provides the department with the right to investigate reports of abuse, exploitation, or neglect of an elderly or disabled person; and under Texas Civil Statutes, Article 4413(503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to investigations of abuse and neglect from TDMHMR to TDPRS. The new sections implement sec.1.06 of Acts 1991, 72nd Legislature, First Called Session, Chapter 15, as amended by Acts 1993, 73rd Legislature, Chapter 747, sec.1. The new sections also implement Texas Civil Statutes, Article 4413(503), sec.12(c). sec.710.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Adult-A person 18 years of age or older. Adult Protective Services (APS) investigator-An employee of the Texas Department of Protective and Regulatory Services with expertise and demonstrated competence in conducting investigations. Agent-Any individual not employed by a Texas Department of Mental Health and Mental Retardation (TDMHMR) facility but working under the auspices of the facility, such as a volunteer, a student, etc. Allegation-A report by a person believing or having knowledge that a person receiving services has been or is in a state of abuse, exploitation, or neglect as defined in this subchapter. Child-A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. Clinical practice -Relates to issues of potentially or allegedly unsafe nursing, dental, or medical practice or violations of the Nursing Practice Act, Licensed Vocational Nurse Title Act, Dental Practice Act, or Medical Practice Act. These include acts of omissions of the physician, dentist, or nurse which result from lack of competence in their profession, impaired status, or failure to provide adequate medical, nursing, or dental care to a person served. Confirmed-A finding that an allegation of abuse or neglect is supported by the preponderance of the evidence. Contractor-Any organization, entity, or individual associated by contract in a working alliance with a facility. Designee-A staff member immediately available who is temporarily or permanently responsibilities of the head of the facility. Facility-Any institution, program, or service operated by the Texas Department of Mental Health and Mental Retardation. Head of the facility-The superintendent or director of a facility. Incitement-To spur to action or instigate into activity; implies responsibility for initiating another's actions. Inconclusive-A finding that an allegation of abuse, neglect, or exploitation leads to no conclusion or definite result due to lack of witnesses or other relevant evidence. Mental health services provider-An individual, licensed or unlicensed, who performs or purports to perform mental health services, including a: (A) licensed social worker as defined by Human Resources Code, sec.50.001; (B) chemical dependency counselor as defined by sec.1, Chapter 635, Acts of the 72nd Legislature, Regular Session, 1991 (Texas Civil Statutes, Article 4512o); (C) licensed professional counselor as defined by sec.2, Licensed Professional Counselor Act (Texas Civil Statutes, Article 4512g); (D) licensed marriage and family therapist as defined by sec.2, Licensed Marriage and Family Therapist Act (Texas Civil Statutes, Article 4512c-1); (E) member of the clergy; (F) physician who is "practicing medicine" as defined by Medical Practice Act, sec.1.03 (Texas Civil Statutes, Article 4495b); (G) psychologist offering "psychological services" as defined by Psychologists' Certification and Licensing Act, sec.2 (Texas Civil Statutes, Article 4512c); or (H) registered nurse or licensed vocational nurse as defined by law. Office of Facility Investigations-The office located at the Texas Department of Protective and Regulatory Services which has administrative and policy development responsibilities for investigations of abuse, neglect, and exploitation conducted in Texas Department of Mental Health and Mental Retardation facilities. Peer review-A review of clinical and/or medical practice(s) by peer physicians and/or dentists, or a review of clinical nursing practices by nurses. Perpetrator-The person who has committed an act of abuse, neglect, or exploitation. Perpetrator unknown -Term used to describe instances in which abuse or neglect is confirmed but positive identification of the responsible person(s) cannot be made, and in which self-injury has been eliminated as the cause. Person served-Any person receiving services from the Texas Department of Mental Health and Mental Retardation, including those persons who are absent who are still carried on the rolls of the facility. Preponderance of evidence-The greater weight of evidence, or evidence which is more credible and convincing to the mind. Prevention and Management of Aggressive Behavior (PMAB) -The Texas Department of Mental Health and Mental Retardation's proprietary risk management program, which uses the least intrusive, most effective options to reduce the risk of injury for persons receiving services and for staff from acts or potential acts of aggression. Reporter-The person filing a report of abuse, neglect, or exploitation, whether the victim of alleged abuse, neglect, or exploitation, or a third party filing a report on behalf of the alleged victim, or both. Sexual abuse-Any sexual activity, including sexual exploitation as defined in the Texas Health and Safety Code, sec.161.131 and sexual assault as defined in the Texas Penal Code, sec.22.011, involving an employee, agent, or contractor and a person served. Sexual activity includes, but is not limited to, kissing, hugging, stroking, or fondling with sexual intent; oral sex or sexual intercourse; request or suggestion or encouragement by staff for performance of sex with the employee or with another person served. Sexual exploitation -A coercive, manipulative, or otherwise exploitative pattern, practice, or scheme of conduct, which may include sexual contact, that can be reasonably construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted practice. Sexually transmitted disease-Any infection of a person served, with or without symptoms or clinical manifestations, that is or may be transmitted from one person to another as a result of sexual contact between persons. Unconfirmed-A finding that an allegation of abuse, neglect, or exploitation is not supported by the preponderance of the evidence. Unfounded-A finding that an allegation of abuse of neglect is spurious or patently without factual basis. sec.710.5. Abuse, Neglect, and Exploitation of a Child Defined. (a) When the perpetrator is an employee, contractor, or agent of the Texas Department of Mental Health and Mental Retardation (TDMHMR), or the perpetrator is unknown, abuse, neglect, or exploitation of a child shall be defined as follows. (1) Abuse of a child includes the following acts or omissions by any person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child; (E) sexual contact, sexual intercourse, or sexual conduct, as those terms are defined by the Texas Penal Code, sec.43.01; sexual penetration with a foreign object; incest; sexual assault; or sodomy inflicted on, shown to, or intentionally practiced in the presence of a child by another person if the child is present only to arouse or gratify the sexual desires of any person; (F) failure to make a reasonable effort to prevent sexual contact, sexual intercourse, or sexual conduct, as those terms are defined by the Texas Penal Code, sec.43.01; sexual penetration with a foreign object; incest; sexual assault; or sodomy being inflicted on or shown to a child by another person, or intentionally practiced in the presence of a child by another person if the child is present only to arouse or gratify the sexual desires of any person; (G) compelling or encouraging the child to engage in sexual conduct as defined by the Texas Penal Code, sec.43.01; or (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Texas Penal Code) or pornographic. (2) Neglect of a child includes: (A) leaving a child in a situation where the child 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, or managing or possessory conservator of the child; (B) the following acts or omissions by any person: (i) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) the failure to seek, obtain, or follow through with medical care for the child, 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 child; (iii) the failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away. (3) Exploitation means the illegal or improper act or process of using a person or the resources of a person served for monetary or personal benefit, profit, or gain. (b) Abuse does not include: (1) the proper use of restraints or seclusion, including TDMHMR's prevention and management of aggressive behavior (PMAB), and the approved application of behavior modification techniques as described in 25 Texas Administrative Code (TAC), Chapter 405, Subchapter F, concerning Restraint and Seclusion-Mental Health Facilities, 25 TAC Chapter 405, Subchapter G, concerning Behavior Therapy Programs (MH), and 25 TAC Chapter 405, Subchapter H, concerning Behavior Management-Facilities Serving Persons with Mental Retardation; (2) other actions taken in accordance with the rules of TDMHMR; (3) actions an employee reasonably believes to be immediately necessary to avoid imminent harm to self, persons served, or other individuals, if the actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. The actions do not include acts of unnecessary force or the inappropriate use of restraints or seclusion, or PMAB; or (4) complaints related to rights violations, theft of property, or daily administrative operations of a facility. Such complaints will be referred to the head of the facility for administrative action by the head of the facility, the facility rights protection officer, or other appropriate parties. sec.710.7. Adult Protective Services (APS) Investigator. (a) APS investigator. An APS investigator conducts all investigations of abuse, neglect, and exploitation. (b) Training. APS investigators receive appropriate training in issues related to the efficient and effective investigation of allegations of abuse, neglect, and exploitation. Investigators are oriented to issues pertaining to individuals with disabilities, how to communicate effectively with them, and the nature of an inpatient environment. (c) Notifications. Upon receiving a report of an allegation of abuse, neglect, or exploitation, the person receiving the intake or the APS investigator will: (1) immediately notify the head of the facility or designee of the allegation without revealing the identity of the reporter. If the allegation involves sexual exploitation of a person served by a mental health services provider as defined in the Texas Civil Practices and Remedies Code, sec.81, the name of the reporter shall be released to the head of the facility or designee; (2) immediately notify the head of the facility or designee as to whether the allegation will be reported to a law enforcement agency; and (3) immediately, if possible, but in no case more than one hour later, report allegations involving physical abuse or sexual assault to the appropriate local or state law enforcement agency. (d) Responsibilities. (1) The APS investigator must fully investigate alleged incidents of abuse, neglect, or exploitation. (A) The APS investigator must begin an investigation within 24 hours of receiving an allegation. An investigation begins when the investigator interviews either the person served, alleged perpetrator, or any collateral witness. (B) When an allegation involves sexual abuse or serious physical injury of a person served, the investigator must make a face-to-face contact with either the person served, alleged perpetrator, or a collateral witness within 24 hours. (C) Anonymous allegations must be received and investigated following the same procedures that are used when the reporter is known. (D) An allegation that sexual abuse has been committed by a person receiving services must be reported and investigated following the procedures outlined in this subchapter to determine whether negligence on the part of staff may have made it possible for the sexual abuse to have occurred. (E) Injuries of unknown origin must be investigated if the attending physician, after examining the person served, suspects that the injury is the result of abuse or neglect. (F) Any pregnancy of a person served, provided there is medical verification that the conception could have occurred while the person was a resident of the facility, or any diagnosis of a sexually transmitted disease in a person served which could have occurred while the person was a resident of the facility, must be reported as possible abuse or neglect in keeping with the provisions of this subchapter. (G) If the allegation involves the actions of a physician, dentist, registered nurse, or licensed vocational nurse, the head of the facility or designee, in coordination with the APS investigator and the facility medical or nursing director, as appropriate to the discipline involved, will determine whether the allegation involves the clinical practice of the physician, dentist, registered nurse, or licensed vocational nurse. If the abuse or neglect allegation does not involve clinical practice, the APS investigator pursues an investigation. If a determination is made that the allegation involves the clinical practice of a physician, dentist, registered nurse, or licensed vocational nurse, the APS investigator refers the allegation in writing to the head of the facility or designee for peer review. (H) Allegations determined by the APS investigator to involve rights issues must be reported in writing, using the Adult Protective Services Referral form, to the facility rights officer within 24 hours of the time the investigator becomes aware of the rights violations or the next working day. (I) Allegations determined by the APS investigator to involve the daily administrative operations of a facility and which have not resulted in a specific case of neglect or exploitation, such as the failure to maintain an adequate number of staff on a unit or dorm, will be referred to the head of the facility for administrative review and action using the Adult Protective Services Referral Form. (2) Investigative procedures outlined in the Texas Department of Protective and Regulatory Services' "Procedures and Techniques for Investigation of Abuse and Neglect," must be followed in all investigations. (3) If at any point during the course of the investigation it becomes apparent (via written witness statements and other evidence gathered) that the allegation is spurious or patently without factual basis, the investigation may be closed as unfounded, with supervisory approval. The reason for this determination, based on specific evidence, will be included in the report. A copy of all such investigations must be sent to the head of the facility. If there is disagreement with the determination of unfounded, the head of the facility may contact the local APS supervisor to request that the case be re-opened. (4) If there is not a preponderance of evidence to indicate that an allegation should or should not be confirmed due to lack of witnesses or other available evidence, a finding of inconclusive may be used with supervisory approval. (5) The APS investigator must indicate "perpetrator unknown" in those instances in which the preponderance of evidence exists to confirm abuse or neglect, but positive identification of the person(s) responsible cannot be determined and self-injury has been eliminated as the cause. Evidence must exist that abuse or neglect has been committed for the term "perpetrator unknown" to be used. sec.710.8. Responsibilities of the Adult Protective Services (APS) Investigator; Completion of Investigation. (a) The APS investigator shall complete the investigation within 14 calendar days after receiving an allegation and submit a copy of the items listed in paragraphs (1)-(5) of this subsection to the head of the facility: (1) the investigative report, with any information that would reveal the identity of the reporter concealed including: (A) a statement of the allegation(s); (B) a summary of the investigation; (C) an analysis of the evidence, including factual information related to what occurred, how the evidence was weighed, and what testimony was considered credible; (D) the investigator's determination as to whether or not abuse, neglect, or exploitation occurred; (E) recommendations resulting from the investigation; (F) an opinion as to how the allegation(s) might be classified in accordance with 25 Texas Administrative Code Chapter 404, Subchapter A, sec.404.10 (relating to Disciplinary Action); and (G) a determination as to how the incident should be classified in accordance with the Texas Family Code, sec.34.012, if the incident involves a minor; (2) the physician's examination and treatment of abuse-related injuries (Texas Department of Mental Health and Mental Retardation (TDMHMR) Client Injury/Incident Report); (3) photographs relevant to the investigation, including photographs depicting the existence of injuries (taken within 24 hours after the report of the allegation) or the non-existence of injuries, when appropriate; (4) all witness statements and supporting documents; and (5) a "Client Abuse/Neglect Report" (AN-1-A) reflecting the finding of the investigation, classification of the incident, and the alleged source of the abuse, neglect, or exploitation. (b) If the incident involved sexual exploitation of a person served by a mental health services provider as defined in the Texas Civil Practices and Remedies Code, Chapter 81, the name of the reporter shall not be concealed in the report provided to the head of the facility. (c) If additional time is required to complete the investigation, the APS investigator may request an extension by submitting an Extension Request form to the local supervisor. Extensions in increments of 14 calendar days may be authorized by the local supervisor. The head of the facility will be notified of extensions as they are granted. (d) If the head of the facility or designee disagrees with the finding of the investigation, the head of the facility may, within 14 calendar days after receiving the investigative report, request in writing a review of the finding by filing the Request for Review of Finding form with the Deputy Director of Adult Protective Services, Texas Department of Protective and Regulatory Services, P.O. Box 149030, E-561, Austin, Texas 78714-9030. The review will be completed by Adult Protective Services within 14 calendar days. (e) In cases of abuse, neglect, or exploitation previously reported to a law enforcement agency, the APS investigator will submit a copy of the investigative report to the appropriate law enforcement agency. (f) In cases of abuse, neglect, or exploitation involving a physician, dentist, registered nurse, or licensed vocational nurse, the APS investigator will forward a copy of the completed investigative report to Texas Department of Protective and Regulatory Services' Office of Facility Investigations in state office. The reports will then be forwarded to the licensing authority for the discipline under review, as required by law. (g) The investigator will notify the reporter in writing of the outcome of the investigation, whether the head of the facility concurs with the finding, and the method or appealing either the outcome of the Texas Department of Protective and Regulatory Services' (TDPRS's) investigation or the determination of the head of the facility, if different from the TDPRS outcome. (h) Upon request, APS investigators will attend TDMHMR grievance hearings and provide consultation to review authorities related to investigations they have conducted. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 16, 1995. TRD-9505923 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: June 15, 1995 Proposal publication date: February 24, 1995 For further information, please call: (512) 450-3765