Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 404.
PROTECTION OF CLIENTS AND STAFF
Subchapter B. ABUSE, NEGLECT, AND EXPLOITATION OF PEOPLE SERVED BY PROVIDERS OF LOCAL AUTHORITIES
25 TAC §§404.41 - 404.55
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Mental Health and Mental Retardation or in the
Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The Texas Department of Mental Health and Mental
Retardation (TDMHMR) proposes the repeals of §§404.41 - 404.55 of
Chapter 404, Subchapter B, concerning abuse, neglect, and exploitation of
people served by providers of local authorities. New §§414.551 -
414.564 of new Chapter 414, Subchapter L, concerning abuse, neglect, and exploitation
in local authorities and community centers, which would replace the repealed
sections, are contemporaneously proposed in this issue of the
Texas Register
.
The repeals would allow for the adoption of new sections governing the
same matters.
The subchapter is proposed for repeal as part of the reorganization of
the TDMHMR rule base to reflect current operational and organizational relationships.
The contemporaneous repeal and adoption of these subchapters would fulfill
the requirements of the Texas Government Code, §2001.039, concerning
the periodic review of agency rules.
Cindy Brown, chief financial officer, has determined that for each year
of the first five years the proposed repeals are in effect, the proposed repeals
do not have foreseeable significant implications relating to cost or revenue
of the state or local governments.
Pam Carley, director, Consumer Services and Rights Protection - Ombudsman,
has determined that, for each year of the first five years the proposed repeals
are in effect, the public benefit expected as a result of the adoption of
the new rules is the promulgation of rules that clearly delineate the requirements
for reporting allegations of abuse, neglect, and exploitation of persons served
in community centers, local authorities, and their contractors; ensuring the
safety and protections of persons served involved in allegations; facilitating
investigations; and ensuring proper disciplinary or other action is taken
when abuse, neglect, or exploitation is confirmed. It is anticipated that
there would be no economic cost to persons required to comply with the new
rules.
It is anticipated that the proposed repeals will not affect a local economy.
It is anticipated that the proposed repeals will not have an adverse economic
effect on small businesses or micro businesses because new rules, which would
not significantly alter requirements for small business or micro businesses
(i.e., contractors of community centers and local authorities), are proposed
to replace the repealed rules.
Written comments on the proposal may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed for repeal under the Texas Health
and Safety Code, §532.015, which provides the Texas Mental Health and
Mental Retardation Board with broad rulemaking authority; the Texas Human
Resources Code, Chapter 48, which requires the reporting and investigations
of abuse, neglect, and exploitation of elderly and disabled persons; §48.255(c),
which requires TDMHMR and TDPRS to develop joint rules to facilitate the investigations
in community centers and local authorities; the Texas Family Code, Chapter
261, which requires the reporting and investigations of abuse and neglect
of a child; and the Texas Civil Practice and Remedies Code, §81.006,
which requires the reporting of alleged sexual exploitation by a mental health
services provider to the county prosecuting attorney.
These proposed sections would affect the Texas Health and Safety Code, §532.015,
the Texas Human Resources Code, Chapter 48, the Texas Family Code, Chapter
261, and the Texas Civil Practice and Remedies Code, §81.006.
§404.41.Purpose.
§404.42.Application.
§404.43.Definitions.
§404.44.Responsibilities of Local Authority.
§404.45.Reporting Abuse and Safeguarding Persons and Evidence.
§404.46.Facilitating the Investigation and Resolution of Related Issues.
§404.47.Information To Be Provided to Alleged Victim and Others.
§404.48.Peer Review.
§404.49.Disciplinary and Other Action.
§404.50.Reporting Responsibilities.
§404.51.Staff Training.
§404.52.Departmental Oversight Responsibilities.
§404.53.Exhibits.
§404.54.References.
§404.55.Distribution.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on January 26, 2001.
TRD-200100465
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 206-5216
Subchapter L. MENTAL RETARDATION LOCAL AUTHORITY (MRLA) PILOT PROGRAM
25 TAC §409.531, §409.541
The Texas Department of Mental Health and Mental Retardation
(department) proposes amendments to §§409.531 and 409.541 of Chapter
409, Subchapter L, concerning mental retardation local authority (MRLA) program.
The proposed amendments correspond to new rules being proposed by the Texas
Department of Protective and Regulatory Services (TDPRS), which is the investigative
authority for allegations of abuse, neglect, and exploitation of individuals
receiving services through the Mental Retardation Local Authority (MRLA) Program.
The proposed amendments to §409.531 revise the Program Principles
for Program Providers. New P6.1 requires the program provider to implement
and maintain a plan for initial and periodic training of personnel. Revisions
to P29 require that the initial and periodic training must assure program
personnel are knowledgeable of how to identify, report, and prevent acts of
abuse, neglect, or exploitation. Principle 32.2, which requires the program
provider to ensure that program personnel are instructed to report immediately
all incidents of abuse, neglect, or exploitation to TDPRS, is amended to specify
that the report must be made immediately but no later than one hour after
personnel have knowledge or suspicion of such an incident. P32.3 is reworded
for clarity. Revisions to P32.4 require the program provider to provide TDPRS
with access to all records pertinent to an investigation of alleged abuse,
neglect, or exploitation, and to preserve and protect all evidence related
to the allegation as directed by TDPRS. P32.6 is revised to extend from 10
to 14 calendar days the timeframe during which the program provider must report
to the department its response to the findings of a TDPRS investigation. Other
revisions to P32.6 require the program provider to notify the alleged victim
or the LAR of the investigative finding, the corrective action taken by the
program provider, the process to appeal the investigative finding, and the
process for requesting a copy of the investigative report. P 32.6 also requires
the program provider to provide the alleged victim or LAR with a de-identified
copy of TDPRS's investigative report, if the alleged victim or LAR requests
a copy of the report. Revised P41 adds the requirement for the program provider
to search the Employee Misconduct Registry and Nurse Aid Registry maintained
by the Texas Department of Human Services prior to employing or contracting
with direct service personnel and refrain from employing a person designated
on either registry as having abused, neglected or exploited a person receiving
services.
The proposed amendments to §409.541 revise the Program Principles
for Mental Retardation Authorities. New A21.1 requires that the MRA determine
if a program provider implements and maintains a plan for initial and periodic
training of personnel. Revisions to A23 requires that the MRA determine if
a program provider's initial and periodic training assure program personnel
are knowledgeable of how to identify, report, and prevent acts of abuse, neglect,
or exploitation. Revisions to A26 specify that the MRA determine that the
program provider implements procedures that are in compliance with Program
Provider Principle 32.1-32.7 relating to allegations of abuse, neglect, or
exploitation.
Bill Campbell, deputy commissioner, Finance and Administration, has determined
that for each year of the first five years the proposed amendments are in
effect, the enforcement or administering of the amendments does not have foreseeable
implications relating to costs or revenues of state or local government.
Ernest McKenney, director, Medicaid Administration, has determined that
for each year of the first five-year period the amendments are in effect,
the public benefit expected is consistency across department programs in how
alleged victims or their LARs are notified of the results of TDPRS investigations,
and the provision of increased protection of individuals from abuse, neglect,
and exploitation. In addition, requirements related to training of program
personnel are more clearly specified. It is not anticipated that the proposed
amendments will have an adverse economic effect on small businesses or micro-businesses
because these changes do not impose any measurable cost to program providers.
It is not anticipated that there will be an economic cost to persons required
to comply with the amendments. It is not anticipated that the amendments will
affect a local economy.
Comments concerning this proposal must be submitted in writing to Linda
Logan, director, Policy Development, Texas Department of Mental Health and
Mental Retardation, by mail to P.O. Box 12668, Austin, Texas 78711, or by
fax to 512/206-4750, within 30 days of publication of this notice.
The amendments are proposed under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Board of Mental Health and
Mental Retardation with broad rulemaking authority; the Texas Government Code, §531.021(a),
and the Texas Human Resources Code, §32.021(a), which provide the Texas
Health and Human Services Commission (THHSC) with the authority to administer
the federal medical assistance (Medicaid) program in Texas; Acts 1995, 74th
Texas Legislature, Chapter 6, §1, (Senate Bill 509), which clarifies
the authority of THHSC to delegate the operation of all or part of a Medicaid
program to a health and human services agency; and the Human Resources Code, §32.021(c),
which provides an agency operating part of the Medicaid program with the authority
to adopt necessary rules for the proper and efficient operation of the program.
THHSC has delegated to the department the authority to operate the MRLA Program.
The proposed amendments affect Texas Government Code, §531.021(a),
and the Texas Human Resources Code, §32.021(a) and (c).
§409.531.Certification Status.
(a)
MRLA program providers contracting with TDMHMR for participation
in the MRLA Program must be in continuous compliance with the MRLA Program
Principles for Program Providers as described in Mental Retardation Local
Authority Program Principles for Program Providers. Each MRLA program provider
participating in the MRLA Program will receive a certification review conducted
by TDMHMR or its designee at least annually in order to maintain certification
status.
Figure: 25 TAC §409.531(a)
(1)
TDMHMR personnel will conduct all certification reviews
of MRLA program providers operated by the local MRA.
(2)
TDMHMR or its designee will conduct all certification reviews
of non-MRA operated program providers.
(b)
Certification review corrective actions required from the
program provider as determined by prior reviews under the HCS or MRLA Consumer
Principles for Certification and related timelines remain in effect until
the first certification review as an MRLA program provider.
§409.541.Compliance with MRLA Program Principles for Mental Retardation Authorities (MRAs).
(a)
MRAs participating in the MRLA Program must be in continuous
compliance with the MRLA Program Principles for Authorities as described in
Mental Retardation Local Authority Program Principles for Mental Retardation
Authority.
Figure: 25 TAC §409.541(a)
(b)
Each MRA participating in the MRLA Program will receive
a compliance review conducted by TDMHMR at least annually.
(c)
If any item of non compliance remains uncorrected by the
MRA at the time of the review exit conference, the MRA will develop a plan
of correction, with timelines, to be implemented after approval by TDMHMR.
TDMHMR may take action as specified in the performance contract between the
local MRA and TDMHMR if the MRA fails to develop or implement an approved
plan of correction.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 29, 2001.
TRD-200100525
Andrew Hardin
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 206-5232
Subchapter L. ABUSE, NEGLECT, AND EXPLOITATION IN LOCAL AUTHORITIES AND COMMUNITY CENTERS
25 TAC §§414.551 - 414.564
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes new §§414.551 - 414.564 of new Chapter 414, Subchapter
L, concerning abuse, neglect, and exploitation in local authorities and community
centers. The repeals of §§404.41 - 404.55 of Chapter 404, Subchapter
B, concerning abuse, neglect, and exploitation of people served by providers
of local authorities, which the new sections would replace, are contemporaneously
proposed in this issue of the
Texas Register
.
The subchapter would describe the requirements for reporting allegations
of abuse, neglect, and exploitation of persons served in community centers,
local authorities, and their contractors; ensuring the safety and protections
of persons served involved in allegations; facilitating investigations; and
ensuring proper disciplinary or other action is taken when abuse, neglect,
or exploitation is confirmed. Portions of the subchapter would be reorganized
for clarity. The provisions relating to allegations involving the clinical
practice of a physician or nurse and the provisions relating to peer review
would be modified for consistency with companion rules of the Texas Department
of Protective and Regulatory Services (TDPRS), which are contemporaneously
proposed. A section relating to confidentiality of the investigative process
and reports would be added for consistency with TDPRS's proposed companion
rules. The section relating to staff competency and training would be modified
for consistency with other TDMHMR's rules.
The new subchapter is proposed as part of the reorganization of the TDMHMR
rule base to reflect current operational and organizational relationships.
The contemporaneous repeal and adoption of these subchapters would fulfill
the requirements of the Texas Government Code, §2001.039, concerning
the periodic review of agency rules.
Cindy Brown, chief financial officer, has determined that for each year
of the first five years the proposed new rules are in effect, enforcing or
administering the rules does not have foreseeable significant implications
relating to cost or revenue of the state or local governments because the
proposed new rules are not substantially different from the rules proposed
for repeal.
Pam Carley, director, Consumer Services and Rights Protection - Ombudsman,
has determined that, for each year of the first five years the proposed new
rules are in effect, the public benefit expected is the promulgation of rules
that clearly delineate the requirements for reporting allegations of abuse,
neglect, and exploitation of persons served in community centers, local authorities,
and their contractors; ensuring the safety and protections of persons served
involved in allegations; facilitating investigations; and ensuring proper
disciplinary or other action is taken when abuse, neglect, or exploitation
is confirmed. It is anticipated that there would be no additional economic
cost to persons required to comply with the proposed rules because they do
not impose additional requirements on such persons.
It is anticipated that the proposed new rules will not affect a local economy
because the rules do not significantly alter the requirements contained in
the rules proposed for repeal, which did not affect a local economy.
It is anticipated that the proposed new rules will not have an adverse
economic effect on small businesses or micro businesses because the rules
do not significantly alter the requirements that contractors of community
centers and local authorities are already required to comply with under the
rules proposed for repeal.
Written comments on the proposal may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed under the Texas Health and Safety
Code, §532.015, which provides the Texas Mental Health and Mental Retardation
Board with broad rulemaking authority; the Texas Human Resources Code, Chapter
48, which requires the reporting and investigations of abuse, neglect, and
exploitation of elderly and disabled persons; §48.255(c), which requires
TDMHMR and TDPRS to develop joint rules to facilitate the investigations in
community centers and local authorities; the Texas Family Code, Chapter 261,
which requires the reporting and investigations of abuse and neglect of a
child; and the Texas Civil Practice and Remedies Code, §81.006, which
requires the reporting of alleged sexual exploitation by a mental health services
provider to the county prosecuting attorney.
These proposed sections would affect the Texas Health and Safety Code, §532.015,
the Texas Human Resources Code, Chapter 48, the Texas Family Code, Chapter
261, and the Texas Civil Practice and Remedies Code, §81.006.
§414.551.Purpose.
The purpose of this subchapter is to implement §48.255(c) of the
Human Resources Code, which requires TDMHMR to develop joint rules with the
Texas Department of Protective and Regulatory Services (TDPRS) to facilitate
investigations in local authorities and community centers and to describe
the requirements for:
(1)
reporting allegations of abuse, neglect, and exploitation
of persons served;
(2)
ensuring the safety and protections of persons served involved
in allegations;
(3)
facilitating investigations; and
(4)
ensuring proper disciplinary or other action is taken when
abuse, neglect, or exploitation is confirmed.
§414.552.Application.
(a)
This subchapter applies to local authorities and community
centers. However, local authorities and community centers that are Medicaid
providers of a home and community-based services waiver program must comply
with TDMHMR rules governing the home and community-based services waiver program
when addressing abuse, neglect, and exploitation in the home and community-based
services waiver program.
(b)
Local authorities and community centers are responsible
for amending their contracts to ensure contractors' compliance with this subchapter.
§414.553.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Abuse - For purposes of reporting allegations, the term
is defined by the investigatory agency. For purposes of classifying allegations
as part of the TDMHMR Client Abuse and Neglect Reporting System (CANRS), the
term is defined in CANRS Definitions, which is referenced as Exhibit A of §414.562
of this title (relating to Exhibits).
(2)
Administrator - The individual in charge of a local authority
or community center, or designee.
(3)
Agent - Any individual not employed by a local authority,
community center, or contractor, but working under the auspices of the local
authority, community center, or contractor (e.g., student, volunteer).
(4)
Allegation - A report by an individual suspecting or having
knowledge that a person served has been or is in a state of abuse, neglect,
or exploitation as defined by the investigatory agency or in CANRS Definitions,
which is referenced as Exhibit A in §414.562 of this title (relating
to Exhibits).
(5)
Clinical practice - Relates to the demonstration of professional
competence by a licensed professional.
(6)
Community center - A community mental health center, community
mental retardation center, or community mental health and mental retardation
center, established under the Texas Health and Safety Code, Title 7, Chapter
534, Subchapter A.
(7)
Confirmed - The finding of an investigation if there is
a preponderance of credible evidence to support that abuse, neglect, or exploitation
occurred.
(8)
Contractor - Any organization, entity, or individual who
contracts with a local authority or community center to provide mental health
or mental retardation services to a person served. The term includes a local
independent school district with which a local authority or community centers
has a memorandum of understanding (MOU) for educational services.
(9)
Contractor CEO - The individual in charge of a contractor
that has one or more employees excluding the CEO.
(10)
Exploitation - For purposes of reporting allegations,
the term is defined by the investigatory agency. For purposes of classifying
allegations as part of the TDMHMR CANRS, the term is defined in CANRS Definitions,
which is referenced as Exhibit A in §414.562 of this title (relating
to Exhibits.
(11)
Investigatory agency - An agency with statutory authority
to investigate abuse, neglect, and exploitation of a person served by a local
authority, community center, or contractor (e.g., Texas Department of Protective
and Regulatory Services investigates allegations in local authorities, community
centers, and all contractors except psychiatric hospitals; Texas Department
of Health (TDH) investigates allegations in psychiatric hospitals; Texas Department
of Human Services (TDHS) investigates allegations in intermediate care facilities
for the mentally retarded or persons with a related condition (ICF/MR or ICF/MR/RC)).
(12)
Local authority - An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(13)
Neglect - For purposes of reporting allegations, the term
is defined by the investigatory agency. For purposes of classifying allegations
as part of the TDMHMR CANRS, the term is defined in CANRS Definitions, which
is referenced as Exhibit A in §414.562 of this title (relating to Exhibits).
(14)
Perpetrator - An individual who has committed an act of
abuse, neglect, or exploitation.
(15)
Person served - Any person receiving services from a local
authority or community center who is registered or assigned in the Client
Assignment and Registration (CARE) system.
(16)
Professional review - A review of clinical and/or professional
practice(s) by peer professionals.
(17)
Retaliatory action - Any action intended to inflict emotional
or physical harm or inconvenience on an employee, agent, or person served
that is taken because he or she has reported abuse, neglect, or exploitation.
Retaliatory action includes, but is not limited to, harassment, disciplinary
measures, discrimination, reprimand, threat, and criticism.
§414.554.Responsibilities of Local Authorities, Community Centers, and Contractors.
(a)
Promulgate and implement policies and procedures. Each
local authority and community center shall promulgate and implement policies
and procedures that meet the requirements of this section.
(b)
Prohibition of abuse, neglect, and exploitation. Each local
authority, community center, and contractor shall ensure that its employees
and agents are informed of the prohibition of abuse, neglect, and exploitation
of persons served.
(c)
Identifying programs and investigatory agencies.
(1)
Each local authority, community center, and contractor
shall ensure that the name and phone number of the investigatory agency are
clearly identified and displayed for its employees and agents at each of its
program and service delivery sites.
(2)
Each local authority and community center shall provide
to each investigatory agency a list of the names and addresses of its contracted
and non-contracted program and service delivery sites in the investigatory
agency's purview, including the name of the staff who will serve as contact
for investigators, as required in subsection (g)(1) of this section.
(d)
Reporting abuse, neglect, and exploitation and securing
evidence.
(1)
Each local authority, community center, and contractor
shall require its employees and agents who suspect or have knowledge of abuse,
neglect, or exploitation of a person served to:
(A)
make a verbal report to the investigatory agency immediately,
but in no case more than one hour after suspicion or knowledge of the abuse,
neglect, or exploitation, in compliance with existing state laws, rules, memorandums
of understanding, and this subchapter;
(B)
as needed, assist any individual in making a report when
the individual alleging abuse, neglect, or exploitation is not an employee
or agent, (e.g., a person served, a guest); and
(C)
secure evidence related to the allegation in accordance
with "Guidelines for Securing Evidence" referenced as Exhibit B in §414.562
of this title (relating to Exhibits).
(2)
Failure to make reports of abuse, neglect, or exploitation
immediately without sufficient justification is considered a violation of
this section and makes the employee or agent subject to disciplinary or other
appropriate action and possible criminal prosecution.
(3)
In addition to the reporting requirement described in paragraph
(1)(A) of this subsection, reports regarding alleged sexual exploitation committed
by a mental health services provider are made 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 in accordance with the Texas Civil Practice and Remedies Code, §81.006.
A copy of the Texas Civil Practice and Remedies Code, §81.006, and §81.001,
which includes the definitions of "sexual exploitation" and "mental health
services provider," is referenced as Exhibit C in §414.562 of this title
(relating to Exhibits).
(e)
Notifying contractor CEO. If the administrator is notified
of an allegation involving a contractor, then the administrator must immediately
notify the contractor CEO of the allegation unless the contractor CEO is the
alleged perpetrator. If the contractor CEO is the alleged perpetrator, then
the administrator shall ensure the activities described in subsections (f),
(h), and (i) are accomplished.
(f)
Safeguarding the alleged victim. Immediately upon notification
of an allegation by the investigatory agency the administrator or contractor
CEO shall ensure necessary measures are taken to secure the safety of the
alleged victim(s) involved in the allegation, including:
(1)
ensuring immediate and on-going medical and psychological
attention is provided to the alleged victim(s), as necessary; and
(2)
separating the alleged victim(s) from the alleged perpetrator(s)
until an investigation has been completed.
(g)
Prohibiting retaliatory action. Any employee or agent,
or any individual affiliated with an employee or agent is prohibited from
engaging in retaliatory action against an employee, agent, or person served
who in good faith reports an allegation. Any employee or agent found to have
engaged in retaliatory action is subject to disciplinary or other appropriate
action.
(1)
Any employee or agent who believes he or she is being subjected
to retaliatory action upon making a report of abuse, neglect, or exploitation,
or who believes an allegation has been ignored without cause, should immediately
contact the administrator or contractor CEO and may also contact the Office
of Consumer Services and Rights Protection - Ombudsman at TDMHMR's Central
Office, at the toll free number 1-800-252-8154.
(2)
Retaliatory action against a person served which might
be considered abuse, neglect, or exploitation must be reported in accordance
with this section.
(h)
Facilitating investigations.
(1)
Administrators and contractor CEOs shall ensure the designation
of a contact staff at each program and service delivery site who will be responsible
for coordinating with the investigator to ensure the availability of and access
to private interview space, private telephones, and employees, agents, and
persons served.
(2)
Administrators and contractor CEOs shall require employees
and agents to cooperate with investigators so that investigators are afforded
immediate access to persons served, employees, agents, records of persons
served, and other documents requested by the investigator.
(3)
Falsification of fact during an investigation is considered
a violation of this section and makes the employee or agent subject to disciplinary
or other appropriate action and possible criminal prosecution.
(i)
Referring allegations involving clinical practice. If the
investigator refers to the administrator or contractor CEO an allegation involving
the clinical practice of a licensed professional, then the administrator or
contractor CEO shall refer the allegation for professional review or, if the
local authority, community center, or contractor does not have a professional
review process, the administrator or contractor CEO shall refer the allegation
to the appropriate licensing authority. The administrator or contractor CEO
shall ensure relevant conclusions of a professional review are submitted to
the appropriate licensing authority.
(j)
Facilitating resolution of other issues.
(1)
Administrators and contractor CEOs shall ensure that general
complaints and administrative issues that are referred to them by an investigator
are reviewed and resolved in a timely manner.
(2)
Local authorities, community centers, and contractors shall
afford TDMHMR immediate access to persons served, employees, agents, records
of persons served, and other documents when TDMHMR responds to a complaint
that the health, welfare, or safety of a person served may be jeopardized.
§414.555.Information To Be Provided to Victim or Alleged Victim and Others.
(a)
Each local authority and community center shall promulgate
and implement policies and procedures that meet the requirements of this section.
(b)
As soon as possible, but no later than 24 hours following
notification of an allegation by the investigatory agency, the administrator
or contractor CEO shall notify the alleged victim (if appropriate) and the
alleged victim's guardian or parent (if the alleged victim is a minor) of
the allegation.
(c)
The administrator or contractor CEO shall ensure that the
victim or alleged victim, guardian, or parent (if the victim or alleged victim
is a minor) is notified of:
(1)
the finding and any decisions made after review and/or
appeal of the finding;
(2)
the method to appeal the finding, if any;
(3)
how to receive a copy of the investigative report; and
(4)
if the allegation is confirmed, the disciplinary or other
action taken against the perpetrator.
§414.556.Investigations Conducted by the Texas Department of Protective and Regulatory Services (TDPRS).
(a)
TDPRS submits a copy of the investigative report to the
administrator or contractor CEO or both in accordance with Chapter 711 of
Title 40 (relating to Investigations in TDMHMR Facilities and Related Programs).
(b)
The administrator or contractor CEO may not change a confirmed
finding made by a TDPRS investigator. The administrator or contractor CEO
may request a review of the finding or the methodology used to conduct the
investigation in accordance with Chapter 711 of Title 40 (relating to Investigations
in TDMHMR Facilities and Related Programs).
§414.557.Disciplinary and Other Action.
(a)
Each local authority and community center shall promulgate
and implement policies and procedures that meet the requirements of this section.
(b)
Administrators and contractor CEOs must take appropriate
disciplinary or other action in confirmed cases of abuse, neglect, and exploitation
involving employees and agents.
(1)
If the investigatory agency has a process by which the
administrator or contractor CEO can request a review of the finding and a
review is requested, then the outcome of the review is final and forms the
basis for disciplinary action.
(2)
If the investigatory agency does not have a process by
which the administrator or contractor CEO can request a review of the finding,
the investigatory agency's finding is final and forms the basis for disciplinary
action.
(c)
Nothing in this subchapter precludes an administrator or
contractor CEO from taking disciplinary or other appropriate action pending
investigation, including termination of employment. If disciplinary or other
action is taken before the investigation is complete, then the executive director
or CEO shall notify the investigator of such action and the investigation
continues.
(d)
Administrators and contractor CEOs shall ensure that disciplinary
or other appropriate action, including seeking criminal prosecution as appropriate,
is taken when an employee or agent fails to make reports immediately without
sufficient justification or an employee or agent is found to have made a false
statement of fact during an investigation.
§414.558.Data Reporting Responsibilities.
If the perpetrator or alleged perpetrator is an employee or agent of
a local authority, community center, or contractor, or the perpetrator is
unknown, then the administrator shall ensure that a Client Abuse and Neglect
Reporting form (AN-1-A) is completed within 14 calendar days of the receipt
of the investigative report or decision made after review or appeal using
the CANRS Definitions and the CANRS Classifications. (The Client Abuse and
Neglect Reporting form (AN-1-A), the CANRS Definitions, and the CANRS Classifications
are referenced as Exhibits E, A, and D, respectively, in §414.562 of
this title (relating to Exhibits).) Within one working day after completion
of the AN-1-A form, the administrator shall ensure that:
(1)
the information contained in the completed AN-1-A is entered
into the Client Abuse and Neglect Reporting System (CANRS); or
(2)
if access to CANRS is unavailable, a copy of the completed
AN-1-A is forwarded for data entry to the Office of Consumer Services and
Rights Protection - Ombudsman, TDMHMR, P.O. Box 12668, Austin, TX 78711-2668.
§414.559.Confidentiality of Investigative Process and Report.
(a)
The reports, records, and working papers used by or developed
in the investigative process by an investigatory agency, and the investigatory
agency's resulting investigative report, are confidential and may be disclosed
only as allowed by law or rule.
(b)
Upon request, the administrator or contractor CEO will
provide a copy of the investigative report to the victim or alleged victim
or guardian with the identities of other persons served and any information
determined confidential by law concealed. The administrator or contractor
CEO may charge a reasonable fee for providing a copy of the investigative
report.
(c)
Advocacy, Inc. is entitled to access the records of persons
served in accordance with 42 USC §10806 or §6042(a)(2)(I) (Protection
and Advocacy of Individuals with Mental Illness and Protection and Advocacy
of Individuals with Developmental Disabilities).
§414.560.Competency of Employees and Agents.
(a)
Each local authority, community center, and contractor
shall ensure that all employees and agents demonstrate a thorough understanding
of the relevant elements of reporting, investigating, and preventing abuse,
neglect, and exploitation, before contact with persons served and annually
thereafter. The relevant elements of reporting, investigating, and preventing
abuse, neglect, and exploitation include:
(1)
the acts and signs of possible abuse, neglect, and exploitation;
(2)
the prohibition of abuse, neglect, and exploitation of
persons served;
(3)
the disciplinary consequences for:
(A)
committing abuse, neglect, and exploitation;
(B)
failing to report abuse, neglect, or exploitation; and
(C)
failing to cooperate with an investigation;
(4)
the procedures for reporting allegations of abuse, neglect,
and exploitation;
(5)
the prohibition of retaliatory action and the consequences
for engaging in retaliatory action;
(6)
the methods for preventing abuse, neglect, and exploitation;
and
(7)
memoranda of understanding and rules of investigatory agencies.
(b)
Each local authority, community center, and contractor
shall ensure that employees and agents who will routinely perform any job
duty in proximity to persons served demonstrate competency in the safe management
of verbally and physically aggressive behavior before contact with persons
served and annually thereafter.
(c)
Each local authority, community center, and contractor
shall ensure that documentation of the competencies of its employees and agents
is maintained.
§414.561.TDMHMR Oversight Responsibilities.
The Office of Consumer Services and Rights Protection - Ombudsman in
TDMHMR's Central Office is responsible for the maintenance of systems that
provide statistical trends in abuse, neglect, and exploitation in local authorities
and community centers.
§414.562.Exhibits.
The following exhibits are referenced in this subchapter:
(1)
Exhibit A - CANRS Definitions;
(2)
Exhibit B - "Guidelines for Securing Evidence";
(3)
Exhibit C - a copy of the Texas Civil Practice and Remedies
Code, §81.001 and §81.006;
(4)
Exhibit D - CANRS Classifications; and
(5)
Exhibit E - Client Abuse and Neglect Report form (AN-1-A).
§414.563.References.
Reference is made to the following statutes:
(1)
Texas Health and Safety Code, Title 7, Chapter 534, Subchapter
A; and
(2)
Texas Civil Practices and Remedies Code, Chapter 81.
§414.564.Distribution.
(a)
This subchapter shall be distributed to:
(1)
members of the Texas MHMR Board;
(2)
investigatory agencies;
(3)
executive, management, and program staff of Central Office;
(4)
administrators of all local authorities and community centers;
and
(5)
advocacy organizations.
(b)
Each administrator is responsible for disseminating copies
of this subchapter to:
(1)
employees and agents;
(2)
contractors; and
(3)
any person served or other individual desiring a copy.
(c)
Each contractor CEO is responsible for disseminating copies
of this subchapter to all employees and agents.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 26, 2001.
TRD-200100464
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 206-5216
Subchapter D. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM
Chapter 409.
MEDICAID PROGRAMS
Chapter 414.
PROTECTION OF CONSUMERS AND CONSUMER RIGHTS
Chapter 419.
MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES