Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 2.
MEDICALLY NEEDY PROGRAM
Subchapter A. PROGRAM REQUIREMENTS
40 TAC §2.1016
The Texas Department of Human Services (DHS) proposes to
amend §2.1016, concerning client reporting requirements, in its Medically
Needy Program chapter. The purpose of the amendment is to establish procedures
to verify automated data matches received from other state and federal agencies
for Medicaid recipients. The proposed rule is required by Texas Government
Code §531.110(e) and reflects agency procedures that have already been
implemented. DHS is simultaneously filing related proposals in this issue
of the
Texas Register
.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be that clients who are not entitled to Medicaid
benefits will not receive them. There will be no effect on small or micro
businesses as a result of enforcing or administering the section, because
the procedures established in the proposed rule have already been implemented.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Questions about the content of this proposal may be directed to Diane Donaldson
at (512) 231-5746 in DHS's Office of Program Integrity section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-56,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs, and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042, and Texas Government Code §531.110(e).
§2.1016.Client Reporting Requirements.
(a)
Clients must report the changes stipulated in the
Temporary Assistance for Needy Families
[
(b)
(No change.)
(c)
Texas Department of Human Services (
DHS
)
processes changes to determine if the client's eligibility for the
Medically Needy program is affected. The Texas Department of Human Services
notifies the client if he is no longer eligible.
(d)
When DHS obtains information
from an automated data match with a state or federal agency indicating that
a Medicaid recipient should not be certified for that program, the following
procedures apply:
(1)
DHS contacts the recipient to resolve the discrepancy
indicated by the match process.
(2)
Upon verifying that the match report includes
information that requires a change in the case, DHS takes action to adjust
or deny that case if appropriate, following required adverse action procedures.
(3)
DHS must document any action taken as a result
of the report.
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-200100520
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 438-3108
Subchapter A. ELIGIBILITY REQUIREMENTS
40 TAC §4.1016
The Texas Department of Human Services (DHS) proposes to
amend §4.1016, concerning client reporting requirements, in its Medicaid
Programs--Children and Pregnant Women chapter. The purpose of the amendment
is to establish procedures to verify automated data matches received from
other state and federal agencies for Medicaid recipients. The proposed rule
is required by Texas Government Code §531.110(e) and reflects agency
procedures that have already been implemented. DHS is simultaneously filing
related proposals in this issue of the
Texas Register
.
Eric M. Bost, Commissioner, has determined that for the first five-year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be that clients who are not entitled to Medicaid
benefits will not receive them. There will be no effect on small or micro
businesses as a result of enforcing or administering the section, because
the procedures established in the proposed rule have already been implemented.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Questions about the content of this proposal may be directed to Diane Donaldson
at (512) 231-5746 in DHS's Office of Program Integrity section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-56,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs, and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042, and Texas Government Code §531.110(e).
§4.1016.Client Reporting Requirements.
(a)
All households must report changes stipulated in the
Temporary Assistance for Needy Families
[
(b)-(c)
(No change.)
(d)
Texas Department of Human Services (
DHS
)
processes changes to determine if the client's eligibility for CPW
is affected. DHS notifies the client if he is no longer eligible.
(e)
When DHS obtains information from an automated
data match with a state or federal agency indicating that a Medicaid recipient
should not be certified for that program, the following procedures apply:
(1)
DHS contacts the recipient to resolve the discrepancy indicated
by the match process.
(2)
Upon verifying that the match report includes information
that requires a change in the case, DHS takes action to adjust or deny that
case if appropriate, following required adverse action procedures.
(3)
DHS must document any action taken as a result of the report.
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-200100521
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 438-3108
The Texas Department of Human Services (DHS) proposes to amend §§15.100,
15.435, and 15.442, concerning burial funds, and bank accounts, in its Medicaid
Eligibility chapter. The rules have been rewritten and expanded for clarity.
The purpose of amendments to §§15.100 and 15.442 is to clarify that,
once a resource is designated as burial funds, the designation remains effective
until eligibility terminates or the fund is tampered with. The rules are also
expanded to include additional situations showing the effective date of designation
by an ineligible spouse or parent who later applies for benefits for himself.
The purpose of the amendment to §15.435 is to delete procedural language
that applies to all resources, not just to bank accounts.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed sections will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of adoption
of the proposed sections will be increased consistency and accuracy of the
application of policy by eligibility staff statewide. There will be no effect
on small or micro businesses as a result of enforcing or administering the
sections, because the sections apply only to the client's financial eligibility
for Medicaid benefits, not to the operation of business. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Judy Coker
at (512) 438-3227 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit- 45, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. GENERAL INFORMATION
40 TAC §15.100
The amendments are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§15.100.Definitions.
The following words and terms, when used in this chapter, have the
following meanings unless the context clearly indicates otherwise:
(1)-(59)
(No change.)
(60)
Insurance - The following terms apply to the definition
of insurance:
(A)-(B)
(No change.)
(C)
The owner is the individual [
(D)-(M)
(No change.)
(61)-(138)
(No change.)
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-200100518
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 438-3108
40 TAC §15.435, §15.442
The amendments are proposed under the Human Resources Code,
Title 2, Chapters 22 and 32, which authorizes the department to administer
public and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§15.435.Liquid Resources.
(a)
(No change.)
(b)
Bank accounts.
(1)
A client's bank balance, as of 12:01 a.m. on the first
day of the month for which eligibility is being tested, is a countable resource.
[
(2)
(No change.)
(c)-(u)
(No change.)
§15.442.Personal Property.
(a)-(d)
(No change.)
(e)
Burial funds.
(1)-(3)
(No change.)
(4)
If an ineligible spouse/parent has designated funds
for burial and then applies for benefits, it is not necessary to redesignate
fund for burial.
[
(5)
(No change.)
(6)
DHS accepts the client's statement about the date he considered
the funds set aside for burial, unless there is evidence of tampering, as
specified in paragraphs (11) and (12) of this subsection. The effective date
of designation can be retroactive to the month of application, or prior months,
if all criteria for designation are met at that time.
Once designated,
the funds remain burial funds until eligibility terminates or until the funds
are tampered with.
(A)
When an ineligible spouse/parent
has designated funds for burial and then applies for benefits, the following
applies:
(i)
If resources have been deemed to the client
from the ineligible spouse/parent, DHS uses the value of the designated burial
funds as of the original designation date.
(ii)
If resources have not been deemed to the client
from the ineligible spouse/parent, DHS uses the value of the designated burial
fund as of the ineligible spouse's/parent's medical effective date (MED).
(B)
In spousal cases:
(i)
If the ineligible spouse applies during the
initial eligibility period, DHS uses the value of the designated burial fund
as of the original designation date.
(ii)
If the ineligible spouse applies after the
initial eligibility period, DHS uses the value of the designated burial fund
as the ineligible spouse's MED.
(7)-(12)
(No change.)
(f)
(No change.)
(g)
Annuities. A client may purchase an annuity to provide
income. An annuity can be revocable or irrevocable.
(1)-(3)
(No change.)
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-200100519
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 438-3108
40 TAC §15.305
The Texas Department of Human Services (DHS) proposes to
amend §15.305, concerning eligibility requirements for the aged, blind,
or disabled, in its Medicaid Eligibility chapter. The purpose of the amendment
is to establish procedures to verify automated data matches received from
other state and federal agencies for Medicaid recipients. The proposed rule
is required by Texas Government Code §531.110(e) and reflects agency
procedures that have already been implemented. DHS is simultaneously filing
related proposals in this issue of the
Texas Register
.
Eric M. Bost, Commissioner, has determined that for the first five-year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be that clients who are not entitled to Medicaid
benefits will not receive them. There will be no effect on small or micro
businesses as a result of enforcing or administering the section, because
the procedures established in the proposed rule have already been implemented.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Questions about the content of this proposal may be directed to Diane Donaldson
at (512) 231-5746 in DHS's Office of Program Integrity section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-56,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs, and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-22.030
and §§32.001-32.042, and Texas Government Code §531.110(e).
§15.305.Eligibility Requirements for the Aged, Blind, or Disabled.
(a)-(k)
(No change.)
(l)
When Texas Department of Human Services
(DHS) obtains information from an automated data match with a state or federal
agency indicating that a Medicaid recipient should not be certified for that
program, the following procedures apply:
(1)
DHS contacts the recipient to resolve the discrepancy indicated
by the match process.
(2)
Upon verifying that the match report includes information
that requires a change in the case, DHS takes action to adjust or deny that
case if appropriate, following required adverse action procedures.
(3)
DHS must document any action taken as a result of the report.
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-200100522
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 11, 2001
For further information, please call: (512) 438-3108
Chapter 700.
CHILD PROTECTIVE SERVICES
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §700.1321 and §700.2501, concerning types
of licensed caregivers, and general requirements for contracting with licensed
residential child-care providers, in its Child Protective Services chapter.
The purpose of the amendments is to allow TDPRS to engage in open enrollment
for residential contracts at Levels-of-Care 4, 5, and 6 with certain for-profit
entities that are licensed by other state agencies.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed sections will be in effect, there
will be no fiscal implications for state or local government as a result of
enforcing or administering the sections.
Ms. Fields also has determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing the sections will be that a greater number of placement resources
will be available to children in the conservatorship of TDPRS. It is anticipated
that these newly available placements will be able to meet the specialized
needs of children with high levels of care. There will be no effect on large,
small, or micro-businesses because the amendments do not impose new requirements
on any business. There is no anticipated economic cost to persons who are
required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Audrey Deckinga
at (512) 438-3238 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-164,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter M. SUBSTITUTE-CARE SERVICES
40 TAC §700.1321
The amendment is proposed under the Human Resources Code (HRC), §40.029,
which provides the Department with the authority to propose and adopt rules
to implement departmental programs.
The amendment implements Title IV-E of the Social Security Act, and 45
Code of Federal Regulations, §1355.20.
§700.1321.Types of Licensed Caregivers.
(a)-(d)
(No change.)
(e)
Facilities under the authority of other state agencies.
(1)
When appropriate,
TDPRS may place
[
(A)-(F)
(No change.)
(G)
the Texas School for the Blind and Visually Impaired; [
(H)
the Texas School for the Deaf
; or
[
(I)
the Texas Department of Human Services.
(2)-(3)
(No change.)
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-200100489
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §700.2501
The amendment is proposed under the Human Resources Code (HRC), §40.029,
which provides the Department with the authority to propose and adopt rules
to implement departmental programs.
The amendment implements Title IV-E of the Social Security Act, and 45
Code of Federal Regulations, §1355.20.
§700.2501.General Requirements for Contracting with Licensed Residential Child-Care Providers.
(a)
(No change.)
(b)
Organizational and licensing requirements. To enter into
a contract with TDPRS to provide substitute care to children in TDPRS's managing
conservatorship, a licensed residential child-care provider must meet the
following organizational and licensing requirements:
(1)
Requirement for nonprofit status. The provider must be
a
governmental or
legally incorporated nonprofit entity unless
the entity is licensed as and contracting for services as a residential treatment
center
or is licensed as described in paragraph (2)(B) of this subsection
, in which case the entity may be a for-profit entity.
(2)-(3)
(No change.)
(4)
For-profit caregivers licensed by other
agencies. A for-profit caregiver licensed by another agency may not be a child-placing
agency, and may receive contracts to serve only children needing Levels-of-Care
4, 5, or 6.
(c)-(d)
(No change.)
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-200100490
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
Subchapter P. PREPARATION FOR ADULT LIVING
40 TAC §§700.1601-700.1604
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes the repeal of §§700.1601-700.1604, and proposes
new §§700.1601-700.1604, concerning the Preparation for Adult Living
(PAL) Program, in its Child Protective Services chapter. The proposal authorizes
the PAL Program to establish in policy the types and amounts of assistance
to be provided and any conditions or criteria that must be met to receive
benefits, and gives program the flexibility to establish and adjust the details
of benefits and services to meet the needs of the youth it is intended to
serve. Provision of services and benefits is subject to available funding.
The proposal requires compliance with the federal Chafee Foster Care Independence
Act, and defines the broader target population required by the federal law.
The proposed rules are written using plain language so they are easier to
understand.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed sections will be in effect, there
will be no fiscal implications for state or local government as a result of
enforcing or administering the sections.
Ms. Fields also has determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing the sections will be that program will have more flexibility to
establish and adjust services and benefits to youth that will best meet the
purpose and objective of the program. The program will be more responsive
to changing needs. The anticipated results will be better outcomes for youth
in adult living. There will be no effect on large, small, or micro-businesses
because the proposed changes do not impose new requirements on any business.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections.
Questions about the content of the proposal may be directed to Janet Luft
at (512) 438-5442 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-163,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
(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 Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under the Human Resources Code, §40.029,
which provides the Department with the authority to propose and adopt rules
in compliance with state law and to implement departmental programs.
The repeals implement changes made to Title IV-E of §477 of the Social
Security Act (42 U.S.C. 677) by the Chafee Foster Care Independence Act.
§700.1601.Required Services.
§700.1602.Transitional Living Allowance.
§700.1603.Household Supplies Stipend.
§700.1604.Optional Services.
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-200100487
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
The new sections are proposed under the
Human Resources Code, §40.029, which provides the Department with the
authority to propose and adopt rules in compliance with state law and to implement
departmental programs.
The new sections implement changes made to Title IV-E of §477 of the
Social Security Act (42 U.S.C. 677) by the Chafee Foster Care Independence
Act.
§700.1601.What is the Preparation for Adult Living (PAL) Program?
The Preparation for Adult Living (PAL) Program provides services and
benefits to help prepare young people to live independently when they leave
foster care. PAL Program funds can be used to provide any of the services
and benefits authorized by the federal Chafee Foster Care Independence Program,
the requirements of which must be met. Funding for the PAL Program is limited
to the state, local, and federal funds allocated to PRS for this program.
§700.1602.Whom is the PAL Program designed to serve?
(a)
The PAL Program is designed to serve the following young
people:
(1)
those who are at least 16 years old and likely to remain
in foster care until at least age 18; and
(2)
those who are younger than 21 years old and who left foster
care when they were at least age 18.
(b)
With funding availability, appropriate services may also
be extended to individuals as young as 14 years old who are likely to remain
in foster care until at least age 18.
§700.1603.What types of services and benefits are available to PAL Program participants?
(a)
The program provides an individual assessment of the participant's
general readiness to live independently as an adult.
(b)
The program provides training to help young people prepare
for independent living once they leave foster care and addresses topics such
as the following:
(1)
personal and interpersonal skills;
(2)
employment and job skills;
(3)
money management;
(4)
housing and transportation;
(5)
personal health; and
(6)
planning for the future.
(c)
The program may provide monetary assistance to eligible
young people for transitional expenses and independent living needs. The types
and amounts of assistance must be established in policy and are subject to
the availability of funds. Monetary assistance may include:
(1)
a transitional living allowance;
(2)
a household supplies stipend; and
(3)
assistance with room and board for young people who have
left foster care because of age.
§700.1604.Are there specific requirements for young people to meet before receiving PAL Program benefits?
(a)
The PAL Program may establish in policy specific conditions
or criteria that young people must meet to receive program benefits, provided
such requirements are designed to help achieve the purposes and objectives
of the program. Specific conditions or criteria may include, but are not limited
to, requirements that the young person:
(1)
attend training (if able);
(2)
be employed or actively seeking employment (if able), or
attending school or vocational or technical training;
(3)
meet need-based criteria for monetary assistance;
(4)
not be living with biological or adoptive parent(s), stepparent(s)
or an alleged perpetrator while receiving financial benefits; and
(5)
not be incarcerated.
(b)
Any young persons whom the PAL Program is designed to serve,
as described in §700.1602 of this title (relating to Whom is the PAL
Program designed to serve?), must be informed of any requirements that they
must meet to receive benefits.
(c)
No benefits are available to any young persons after their
21st birthday.
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-200100488
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes the repeal of Chapter 710, consisting of §§710.1-710.15
and §§710.41-710.55, concerning Protection of Clients and Staff.
As part of the rule review process, TDPRS is repealing Chapter 710, and proposing
new Chapter 711, Investigations in TDMHMR Facilities and Related Programs.
The new chapter adds information about home and community-based services investigations,
and is written using plain language to make it easier to understand. New Chapter
711 is included in this issue of the
Texas Register
.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed repeal will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the repeal.
Ms. Fields also has determined that for each year of the first five years
the repeal is in effect the public benefit anticipated as a result of enforcing
the repeal will be that the rewritten sections will be better organized and
easier to understand. There will be no effect on large, small, or micro-businesses
because the repeal does not impose new requirements on businesses. There is
no anticipated economic cost to persons who are required to comply with the
proposed repeal.
Questions about the content of the proposal may be directed to Marc Mullins
at (512) 438-5505 in TDPRS's Adult Protective Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-162,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. ABUSE, NEGLECT, AND EXPLOITATION OF PERSONS SERVED BY TDMHMR FACILITIES AND STATE-OPERATED COMMUNITY SERVICES
40 TAC §§710.1-710.15
(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 Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under the Human Resources
Code (HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The repeals implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§710.1.Purpose.
§710.2.Application.
§710.3.Definitions.
§710.4.Abuse, Neglect, and Exploitation of an Adult Defined.
§710.5.Abuse, Neglect, and Exploitation of a Child Defined.
§710.6.Reporting Responsibilities of All Texas Department of Mental Health and Mental Retardation (TDMHMR) Employees.
§710.7.Adult Protective Services (APS) Investigator.
§710.8.Responsibilities of the Adult Protective Services (APS) Investigator; Completion of Investigation.
§710.9.Abuse and Neglect Investigative Procedures for Facility Contractors and Independent School District (ISD) Employees.
§710.10.Functions of the Office of Adult Protective Services.
§710.11.Request for Appeal; Filing a Complaint.
§710.12.Confidentiality of Investigative Process and Report.
§710.13.Retention of Investigative Reports.
§710.14.References.
§710.15.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-200100492
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §§710.41-710.55
(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 Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under the Human Resources
Code (HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The repeals implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§710.41.Purpose.
§710.42.Application.
§710.43.Definitions.
§710.44.Abuse, Neglect, and Exploitation of an Adult Defined.
§710.45.Abuse, Neglect, and Exploitation of a Child Defined.
§710.46.Responsibilities of Community Centers.
§710.47.Adult Protective Services (APS) Investigator.
§710.48.Completion of Investigation.
§710.49.Community Center Contractors.
§710.50.Functions of the State Office Division of Adult Protective Services.
§710.51.Request for Review of Finding; Request for Appeal.
§710.52.Confidentiality of Investigative Process and Report.
§710.53.Retention of Investigative Reports.
§710.54.References.
§710.55.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-200100493
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes new Chapter 711, Investigations in TDMHMR Facilities and Related
Programs. The new chapter consists of §§711.1, 711.3, 711.5, 711.7,
711.9, 711.11, 711.13, 711.15, 711.17, 711.19, 711.21, and 711.23, in Subchapter
A, Introduction; §711.201, in Subchapter C, Duty to Report; §§711.401,
711.403, 711.405, 711.407, 711.409, 711.411, 711.413, 711.415, 711.417, 711.419,
711.421, 711.423, and 711.425, in Subchapter E, Conducting the Investigation; §§711.601,
711.603, 711.605, 711.607, 711.609, 711.611, and 711.613, in Subchapter G,
Release of Report and Findings; §711.801 in Subchapter I, Provision of
Services; §§711.1001, 711.1003, 711.1005, 711.1007, 711.1009, 711.1011,
and 711.1013, in Subchapter K, Requesting a Review of Finding if You are the
Administrator or Contractor CEO; and §§711.1201, 711.1203, 711.1205,
711.1207, and 711.1209, in Subchapter M, Requesting an Appeal if You are the
Reporter, Alleged Victim, Legal Guardian, or with Advocacy, Incorporated.
The purpose of the new chapter is to add information about home and community-based
services investigations, and rewrite the sections using plain language so
they are easier to understand.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed sections will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the sections.
Ms. Fields also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that the sections will be better organized and easier
to understand. There will be no effect on large, small, or micro-businesses
because the sections do not impose new requirements on businesses. There is
no anticipated economic cost to persons who are required to comply with the
proposed sections.
Questions about the content of the proposal may be directed to Marc Mullins
at (512) 438-5505 in TDPRS's Adult Protective Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-162,
Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. INTRODUCTION
40 TAC §§711.1, 711.3, 711.5, 711.7, 711.9, 711.11, 711.13, 711.15, 711.17, 711.19, 711.21, 711.23
The new sections are proposed under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.1.What is the purpose of this chapter?
The purpose of this chapter is to:
(1)
implement the Human Resources Code (HRC) §48.255(a)
and (c) and §48.355(c), and Texas Family Code §261.404, which require
the Texas Department of Protective and Regulatory Services (PRS) to develop
joint rules with the Texas Department of Mental Health and Mental Retardation
(TDMHMR) to facilitate investigations in TDMHMR facilities and related programs;
(2)
describe Adult Protective Services investigations of allegations
involving adults and children in the following programs:
(A)
TDMHMR facilities;
(B)
local authorities;
(C)
community centers;
(D)
home and community-based services waiver programs; and
(E)
a contractor or agent of one of the programs listed in
subparagraphs (A)-(D) of this paragraph;
(3)
define abuse, neglect, and exploitation of a person served
by the programs listed in paragraph (2) of this section; and
(4)
describe procedures for reporting and investigating allegations.
§711.3.How are the terms in this chapter defined?
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Administrator--The person in charge of a facility, local
authority, community center, or home and community-based services waiver program,
or designee.
(2)
Adult--An adult is a person:
(A)
18 years of age or older; or
(B)
under 18 years of age who:
(i)
is or has been married; or
(ii)
has had the disabilities of minority removed pursuant
to the Texas Family Code, Chapter 31.
(3)
APS--Adult Protective Services, a division of PRS.
(4)
Agent--An individual (e.g., student, volunteer), not employed
by but working under the auspices of a:
(A)
facility, local authority, community center, or home and
community-based services waiver program; or
(B)
contractor of one of the programs listed in subparagraph
(A) of this paragraph.
(5)
Allegation--A report by an individual that a person served
has been or is in a state of abuse, neglect, or exploitation as defined by
this subchapter.
(6)
Child--A person under 18 years of age who:
(A)
is not and has not been married; or
(B)
has not had the disabilities of minority removed pursuant
to the Texas Family Code, Chapter 31.
(7)
Clinical practice--Relates to the demonstration of professional
competence in nursing, dental, pharmacy, or medical practice as described
in the Nursing Practice Act, Vocational Nurse Act, Dental Practice Act, Pharmacy
Practice Act, or Medical Practice Act.
(8)
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.
(9)
Contractor--Any organization, entity, or individual who
contracts with a facility, local authority, community center, or HCSW to provide
mental health and/or mental retardation services directly to a person served.
The term includes a local independent school district with which a facility,
local authority, or community center has a memorandum of understanding (MOU)
for educational services.
(10)
Contractor CEO--The person in charge of a contractor that
has one or more employees, excluding the CEO.
(11)
CSRP or Consumer Services and Rights Protection--Ombudsman
Office--The office at TDMHMR's Central Office charged with protecting the
rights of persons served.
(12)
Emergency order for protective services--A court order
for protective services obtained under Human Resources Code, §48.208.
(13)
Emergency services--Services necessary to immediately
protect a person served by an HCSW from serious physical harm or death. Examples
include, but are not limited to, arranging for:
(A)
an emergency order for protective services;
(B)
shelter;
(C)
medical and psychiatric assessments and/or treatment; and
(D)
food, medication, or other supplies.
(14)
Facility--A state hospital, state school, or state center
that is operated by TDMHMR.
(15)
Home and community-based services waiver program (HCSW)--Community-based
Medicaid waiver programs authorized under the Social Security Act, §1915(c),
operated by TDMHMR under the authority of the Texas Health and Human Services
Commission, which are the:
(A)
Home and Community-based Services Program (HCS), governed
by 25 TAC Chapter 419, Subchapter D (relating to Home and Community-based
Services (HCS) Program);
(B)
Mental Retardation Local Authority Program (MRLA), governed
by 25 TAC Chapter 409, Subchapter L (relating to Mental Retardation Local
Authority (MRLA) Pilot Program); and
(C)
Home and Community-based Services-OBRA (HCS-O) Program,
governed by 25 TAC Chapter 419, Subchapter P (relating to Home and Community-based
Services-OBRA (HCS-O) Program).
(16)
Incitement--To spur to action or instigate into activity;
implies responsibility for initiating another's actions.
(17)
Individual with a disability receiving services--A disabled
person as defined in the Human Resources Code, Chapter 48, receiving services
from a:
(A)
facility, local authority, community center, HCSW; or
(B)
contractor or agent of one of the programs listed in subparagraph
(A) of this paragraph.
(18)
Investigator--An employee of the division of Adult Protective
Services who has:
(A)
demonstrated competence and expertise in conducting investigations;
and
(B)
received training on techniques for communicating effectively
with individuals with a disability.
(19)
Local authority--An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(20)
Mental health services provider--In accordance with the
Texas Civil Practice and Remedies Code, §81.001, an individual, licensed
or unlicensed, who performs or purports to perform mental health services,
including a:
(A)
licensed social worker as defined by the Human Resources
Code, §50.001;
(B)
chemical dependency counselor as defined by Texas Civil
Statutes, Article 4512o;
(C)
licensed professional counselor as defined in §2 of
the Licensed Professional Counselor Act, (Texas Civil Statutes, Article 4512g);
(D)
licensed marriage and family therapist as defined in §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 in §1.03
of the Medical Practice Act, (Texas Civil Statutes, Article 4495b);
(G)
psychologist offering psychological services as defined
in §2 of the Psychologists' Certification and Licensing Act, (Texas Civil
Statutes, Article 4512c); or
(H)
special officer for mental health assignment certified
under the Government Code, §415.037.
(21)
Non-serious physical injury--Any injury determined not
to be serious by the appropriate medical personnel. Examples of non-serious
physical injury include the following:
(A)
superficial laceration;
(B)
contusion two and one-half inches in diameter or smaller;
or
(C)
abrasion.
(22)
Peer review--A review of clinical and/or:
(A)
medical practice(s) by peer physicians;
(B)
dental practice(s) by peer dentists;
(C)
pharmacy practice(s) by peer pharmacists; or
(D)
nursing practice(s) by peer nurses.
(23)
Perpetrator--A person who has committed an act of abuse,
neglect, or exploitation.
(24)
Person served--An individual with a disability receiving
services who is registered or assigned in the Client Assignment and Registration
(CARE) system.
(25)
Preponderance of evidence--The greater weight of evidence,
or evidence which is more credible and convincing to the mind.
(26)
Prevention and management of aggressive behavior (PMAB)--TDMHMR's
proprietary risk management program that uses the least intrusive, most effective
options to reduce the risk of injury for persons served and staff from acts
or potential acts of aggression.
(27)
Professional review--A review of clinical and/or professional
practice(s) by peer professionals.
(28)
Program--A facility, local authority, community center,
or HCSW.
(29)
PRS--Texas Department of Protective and Regulatory Services.
(30)
Reporter--The person, who may be anonymous, making an
allegation.
(31)
Serious physical injury--Any injury determined to be serious
by the appropriate medical personnel. Examples of serious physical injury
include the following:
(A)
fracture;
(B)
dislocation of any joint;
(C)
internal injury;
(D)
contusion larger than two and one-half inches in diameter;
(E)
concussion;
(F)
second or third degree burn; or
(G)
any laceration requiring sutures.
(32)
Sexually transmitted disease--Any infection with or without
symptoms or clinical manifestations that can be transmitted from one person
to another by sexual contact.
(33)
TDMHMR--Texas Department of Mental Health and Mental Retardation.
(34)
Victim--A person served who is alleged to have been abused,
neglected, or exploited.
§711.5.What does APS investigate under this chapter?
(a)
When the alleged perpetrator is an employee, contractor,
agent, or is unknown, and the alleged victim is a person served, APS investigates
allegations of:
(1)
physical abuse;
(2)
sexual abuse;
(3)
sexual exploitation;
(4)
verbal/emotional abuse;
(5)
neglect; and
(6)
exploitation.
(b)
APS also investigates:
(1)
pregnancy of a person served by a facility or facility
contractor if there is:
(A)
medical verification that conception could have occurred
while the person served was a resident of the facility or facility contractor;
and
(B)
a reasonable expectation that conception occurred while
the person was a resident of the facility or facility contractor;
(2)
sexually transmitted disease (STD) of a person served by
a facility or facility contractor, if the person could have acquired the STD
while a resident of the facility or facility contractor; and
(3)
injury of unknown origin if the appropriate medical personnel,
after examining the person served, suspect the injury is the result of abuse
or neglect.
§711.7.What does APS not investigate under this chapter?
APS does not investigate an allegation if:
(1)
another branch of PRS or another state agency is responsible
under state law for the investigation;
(2)
it relates solely to a general complaint, such as:
(A)
a rights violation;
(B)
theft of property;
(C)
daily administrative operations;
(D)
failure to carry out a person served's program or treatment
plan, that does not relate to a specific incident or allegation involving
a specific person served; or
(E)
failure to maintain adequate numbers of appropriately trained
staff that does not relate to a specific incident or allegation involving
a specific person served; or
(3)
it involves only the clinical practice of a physician,
dentist, registered nurse, licensed vocational nurse, or pharmacist.
§711.9.How does APS determine if it has jurisdiction to investigate in certain situations?
The investigator determines whether or not APS has jurisdiction to
investigate the allegation based on the following:
Figure: 40 TAC §711.9
§711.11.How is physical abuse defined?
In this chapter, when the alleged perpetrator is an employee, agent,
or contractor, physical abuse is defined as:
(1)
an 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;
(2)
an act of inappropriate or excessive force or corporal
punishment, regardless of whether the act results in a physical injury to
a person served; or
(3)
the use of chemical or bodily restraints on a person served
not in compliance with federal and state laws and regulations, including:
(A)
25 TAC Chapter 405, Subchapter F (relating to Voluntary
and Involuntary Behavioral Interventions in Mental Health Programs);
(B)
25 TAC Chapter 405, Subchapter H, (relating to Behavior
Management--Facilities Serving Persons with Mental Retardation);
(C)
25 TAC Chapter 409, Subchapter L (relating to Mental Retardation
Local Authority (MRLA) Pilot Program);
(D)
25 TAC Chapter 419, Subchapter D (relating to Home and
Community-based Services (HCS) Program); and
(E)
25 TAC Chapter 419, Subchapter P (relating to Home and
Community-based Services-OBRA (HCS-O) Program).
§711.13.How is sexual abuse defined?
In this chapter, when the alleged perpetrator is an employee, agent,
or contractor, sexual abuse is defined as any sexual activity, including but
not limited to:
(1)
kissing a person served with sexual intent;
(2)
hugging a person served with sexual intent;
(3)
stroking a person served with sexual intent;
(4)
fondling a person served with sexual intent;
(5)
engaging in with a person served:
(A)
sexual conduct as defined in the Texas Penal Code, §43.01;
or
(B)
any activity that is obscene as defined in the Texas Penal
Code, §43.21;
(6)
requesting, soliciting, or compelling a person served to
engage in:
(A)
sexual conduct as defined in the Texas Penal Code, §43.01;
or
(B)
any activity that is obscene as defined in the Texas Penal
Code, §43.21;
(7)
in the presence of a person served:
(A)
engaging in or displaying any activity that is obscene,
as defined in the Texas Penal Code §43.21; or
(B)
requesting, soliciting, or compelling another person to
engage in any activity that is obscene, as defined in the Texas Penal Code §43.21;
(8)
committing sexual exploitation as defined in §711.15
of this title (relating to How is sexual exploitation defined?) against a
person served;
(9)
committing sexual assault as defined in the Texas Penal
Code §22.011, against a person served;
(10)
committing aggravated sexual assault as defined in the
Texas Penal Code, §22.021, against a person served; and
(11)
causing, permitting, encouraging, engaging in, or allowing
the photographing, filming, videotaping, or depicting of a person served if
the employee, agent, or contractor knew or should have known that the resulting
photograph, film, videotape, or depiction of the person served is obscene
as defined in the Texas Penal Code, §43.21, or is pornographic.
§711.15.How is sexual exploitation defined?
(a)
In this chapter, when the alleged perpetrator is an employee,
agent, or contractor, sexual exploitation is defined as a pattern, practice,
or scheme of conduct against a person served, 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.
(b)
The term does not include obtaining information about a
patient's sexual history within standard accepted clinical practice.
§711.17.How is verbal/emotional abuse defined?
In this chapter, when the alleged perpetrator is an employee, agent,
or contractor, verbal/emotional abuse is defined as any act or use of verbal
or other communication, including gestures, to:
(1)
curse, vilify, or degrade a person served; or
(2)
threaten a person served with physical or emotional harm.
§711.19.How is neglect defined?
In this chapter, when the alleged perpetrator is an employee, agent,
or contractor, neglect is defined as a negligent act or omission by any individual
responsible for providing services to a person served, which caused or may
have caused physical or emotional injury or death to a person served or which
placed a person served at risk of physical or emotional injury or death. Neglect
includes, but is not limited to, the failure to:
(1)
establish or carry out an appropriate individual program
plan or treatment plan for a person served;
(2)
provide adequate nutrition, clothing, or health care to
a specific person served in a residential or inpatient program; or
(3)
provide a safe environment for a specific person served,
including the failure to maintain adequate numbers of appropriately trained
staff.
§711.21.How is exploitation defined?
In this chapter, when the alleged perpetrator is an employee, agent,
or contractor, exploitation is defined as 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.
§711.23.What is not considered abuse, neglect, or exploitation?
Abuse, neglect, and exploitation do not include the following:
(1)
the proper use of restraints and seclusion, including Prevention
and Management of Aggressive Behavior (PMAB), and the approved application
of behavior modification techniques as described in:
(A)
25 TAC Chapter 405, Subchapter F (relating to Voluntary
and Involuntary Behavioral Interventions in Mental Health Programs);
(B)
25 TAC Chapter 404, Subchapter E (relating to Rights of
Persons Receiving Mental Health Services); and
(C)
25 TAC Chapter 405, Subchapter H (relating to Behavior
Management--Facilities Serving Persons With Mental Retardation);
(2)
actions taken in accordance with the rules of the Texas
Department of Mental Health and Mental Retardation; or
(3)
actions that an employee, contractor, or agent may reasonably
believe to be immediately necessary to avoid imminent harm to self, persons
served, or other individuals provided the 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.
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-200100494
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §711.201
The new section is proposed under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new section implements the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.201.What is your duty to report if you are an employee, agent, or contractor of a facility, local authority, community center, or HCSW?
If you know or suspect that a person served is being or has been abused,
neglected, or exploited or if you know or suspect that a person served who
is a resident of a facility or facility contractor meets other criteria specified
in §711.5(b) of this title (relating to What does APS investigate under
this chapter?), you must:
(1)
report such knowledge or suspicion to PRS immediately,
if possible, but in no case more than one hour after knowledge or suspicion
by calling the PRS toll-free number at 1-800-647-7418;
(2)
preserve and protect any evidence related to the allegation
in accordance with instructions from PRS; and
(3)
cooperate with the investigator during the investigation.
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-200100495
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §§711.401, 711.403, 711.405, 711.407, 711.409, 711.411, 711.413, 711.415, 711.417, 711.419, 711.421, 711.423, 711.425
The new sections are proposed under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.401.Who and when does the investigator notify of an allegation and when is the identity of the reporter revealed?
The investigator notifies the following of an allegation:
Figure: 40 TAC §711.401
§711.403.Who and when does the investigator notify upon receiving an allegation that relates to a general complaint?
Within 24 hours or the next working day following receipt of an allegation
that relates to a general complaint, as described in §711.7(2) of this
title (relating to What does APS not investigate under this chapter?), the
investigator notifies the following of the general complaint:
(1)
the administrator; and
(2)
CSRP, if the complaint involves an HCSW.
§711.405.What action does the investigator take if the alleged perpetrator is a physician, dentist, registered nurse, licensed vocational nurse, or pharmacist for a facility?
(a)
The investigator meets with the administrator, and the
facility medical, dental, nursing or pharmacy director, as appropriate, to
determine whether the allegation involves clinical practice, in accordance
with 25 TAC §417.509(a) (relating to Peer Review).
(b)
If it is determined that the allegation involves clinical
practice, then the investigator refers the allegation to the administrator
for peer review in accordance with 25 TAC §417.509(a)(2) (relating to
Peer Review).
(c)
If it is determined that the allegation does not involve
clinical practice, then the investigator conducts an investigation.
(d)
If it is determined that the allegation involves both clinical
practice and non-clinical issues, then the investigator refers the allegation
to the administrator for peer review in accordance with 25 TAC §417.509(a)(3)
(relating to Peer Review) and conducts an investigation.
§711.407.What action does the investigator take if the alleged perpetrator is a licensed professional other than a physician, dentist, registered nurse, licensed vocational nurse, or pharmacist for a facility?
The investigator conducts an investigation.
§711.409.What action does the investigator take if the alleged perpetrator is a physician, dentist, registered nurse, licensed vocational nurse, or pharmacist for a community center, local authority, or HCSW?
The investigator determines whether or not the allegation involves
clinical practice.
(1)
If it is determined that the allegation involves clinical
practice, the investigator refers the allegation to the administrator for
professional review, or to take other appropriate action.
(2)
If it is determined that the allegation does not involve
clinical practice, the investigator conducts an investigation.
§711.411.What action does the investigator take if the alleged perpetrator is a licensed professional other than a physician, dentist, registered nurse, licensed vocational nurse, or pharmacist for a community center, local authority, or HCSW?
The investigator:
(1)
refers the allegation to the administrator for professional
review or to take other appropriate action; and
(2)
conducts an investigation.
§711.413.How are investigations prioritized?
Each investigation is assigned a priority based on the following:
Figure: 40 TAC §711.413
§711.415.What are the requirements for face-to-face contact with the alleged victim?
The investigator must make a face-to-face contact with the alleged
victim within the following time frames:
Figure: 40 TAC §711.415
§711.417.When must the investigator complete the investigation?
(a)
Unless an extension is granted in accordance with §711.419
of this title (relating to What if the investigator cannot complete the investigation
on time?), the investigator must complete the investigation within the following
time frames:
(1)
Investigations in a facility or HCSW.
Figure: 40 TAC §711.417(a)(1)
(2)
Investigations in a community center or local authority.
Figure: 40 TAC §711.417(a)(2)
(b)
If the deadline for completion of the investigation falls
on a weekend or state holiday, then the investigator must complete the investigation
by the end of the next business day.
§711.419.What if the investigator cannot complete the investigation on time?
(a)
If additional time is required to complete the investigation,
the investigator must request an extension by submitting an Extension Request
form to the regional APS program administrator.
(b)
The regional APS program administrator may grant an extension
for good cause for one to 14 calendar days depending on the needs of the investigation.
(c)
The investigator must notify the administrator of all extensions.
§711.421.What are the possible findings of an investigation?
At the conclusion of an investigation, the investigator must make one
of the following findings:
Figure: 40 TAC §711.421
§711.423.Is the investigator required to designate a perpetrator or alleged perpetrator?
(a)
The investigator must designate a perpetrator or alleged
perpetrator if the investigation results in a confirmed finding.
(b)
The investigator indicates "perpetrator unknown" when:
(1)
positive identification of the responsible person(s) cannot
be made; or
(2)
it is determined that the lack of established policy or
procedure contributed to the abuse, neglect, or exploitation and/or failed
to ensure the safety of the victim.
§711.425.How are allegations classified?
The investigator assigns a classification to each allegation investigated
as follows:
Figure: 40 TAC §711.425
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-200100501
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §§711.601, 71.603, 711.605, 711.607, 711.609, 711.611, 711.613
The new sections are proposed under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new sections implement the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.601.Are investigation documents confidential?
Yes. The reports, records, and working papers used by or developed
in the investigative process, and the resulting investigative report, are
confidential and may be disclosed only as allowed by law or this chapter.
§711.603.What is included in the investigative report?
The investigative report includes the following:
(1)
a statement of the allegation(s);
(2)
a summary of the investigation;
(3)
an analysis of the evidence, including:
(A)
factual information related to what occurred;
(B)
how the evidence was weighed; and
(C)
what testimony was considered credible;
(4)
a finding that the allegation is confirmed, unconfirmed,
inconclusive, or unfounded;
(5)
recommendations resulting from the investigation;
(6)
the name of the perpetrator or alleged perpetrator, designated
in accordance with §711.423 of this title (relating to Is the investigator
required to designate a perpetrator or alleged perpetrator?);
(7)
a recommended classification for each allegation assigned
in accordance with §711.425 of this title (relating to How are allegations
classified?);
(8)
the physician's exam and treatment of abuse/neglect-related
injuries documented on the TDMHMR Client Injury/Incident Report (facilities
only);
(9)
photographs relevant to the investigation, including photographs
showing the existence of injuries or the non-existence of injuries, when appropriate;
(10)
all witness statements and supporting documents; and
(11)
a signed and dated Client Abuse and Neglect Report (AN-1-A)
form, reflecting the information contained in paragraphs (4), (6), and (7)
of this section.
§711.605.Who receives the investigative report?
(a)
The investigator sends a copy of the investigative report
to:
(1)
the administrator, and when appropriate, the contractor
CEO.
(A)
If the administrator is the perpetrator or alleged perpetrator,
the investigator only releases the report to CSRP.
(B)
If the contractor CEO is the perpetrator or alleged perpetrator,
the investigator only releases the report to the administrator;
(2)
CSRP, if the investigation involves an HCSW;
(3)
local law enforcement if the investigation confirms that
a person served has been abused, neglected, or exploited in a manner that
constitutes a criminal offense under any law, including the Texas Penal Code, §22.04;
and
(4)
the state office of Adult Protective Services if a confirmed
finding is made against a physician, dentist, pharmacist, registered nurse,
licensed vocational nurse, or other licensed professional. The state office
forwards a copy of the report to the appropriate licensing authority.
(b)
Law enforcement or a prosecutor may request that PRS delay
the release of the investigative report to anyone listed in subsection (a)(1),
(2), or (4) of this section.
§711.607.Does the investigator reveal the identity of the reporter in the investigative report released to the administrator, contractor CEO, or CSRP?
The name of the reporter is released only if the allegation involves
sexual exploitation and the perpetrator or alleged perpetrator is a mental
health service provider, in accordance with the Texas Civil Practice and Remedies
Code, Chapter 81.
§711.609.How and when is the reporter notified of the finding?
Within 30 calendar days of completion of the investigation, the investigator
notifies the reporter in writing of the:
(1)
finding of the investigation; and
(2)
method of appealing the finding.
§711.611.Is the victim or alleged victim, guardian, or parent notified of the finding?
Yes. The victim or alleged victim, guardian, or parent (if the victim
or alleged victim is a child) is notified of the finding of the investigation
and the method to appeal the finding, in accordance with the following rules
of TDMHMR:
(1)
for facilities--25 TAC §417.510 (relating to Completion
of the Investigation);
(2)
for local authorities and community centers--25 TAC §414.555
(relating to Information To Be Provided to Victim or Alleged Victim and Others);
(3)
for HCSWs--
(A)
25 TAC Chapter 419, Subchapter D (relating to Home and
Community-based Services (HCS) Program);
(B)
25 TAC Chapter 409, Subchapter L (relating to Mental Retardation
Local Authority Pilot (MRLA) Program; or
(C)
25 TAC Chapter 419, Subchapter P (relating to Home and
Community-based Services-OBRA (HCS-O) Program).
§711.613.Can the investigative report be released?
Yes, but any information must be concealed that would reveal the identities
of the reporter and any person served who is not the victim or alleged victim.
Upon request, the investigative report may be released to:
(1)
for facilities, the victim or alleged victim, guardian,
or parent (if the victim or alleged victim is a child), in accordance with
25 TAC §417.511(b) (relating to Confidentiality of Investigative Process
and Report), or perpetrator in accordance with 25 TAC §417.512(d) (relating
to Classifications and Disciplinary Actions);
(2)
for local authorities and community centers, the victim
or alleged victim, guardian, or parent (if the victim or alleged victim is
a child), in accordance with 25 TAC §414.559(b) (relating to Confidentiality
of Investigative Process and Report); and
(3)
for HCSWs, the victim or alleged victim, guardian, or parent
(if the victim or alleged victim is a child), in accordance with:
(A)
25 TAC Chapter 419, Subchapter D (relating to Home and
Community-based Services (HCS);
(B)
25 TAC Chapter 409, Subchapter L (relating to Mental Retardation
Local Authority Pilot (MRLA) Program); or
(C)
25 TAC Chapter 419, Subchapter P (relating to Home and
Community-based Services-OBRA (HCS-O) Program.
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-200100502
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
40 TAC §711.801
The new section is proposed under the Human Resources Code
(HRC), Title 2, §48.255 and §48.355, which provides the department
with the right to investigate reports of abuse, exploitation, or neglect of
an elderly or disabled person; and the Texas Family Code, §261.404, which
requires the department to develop joint rules with the Texas Department of
Mental Health and Mental Retardation (TDMHMR) to facilitate investigations
in TDMHMR facilities and related programs.
The new section implements the Human Resources Code, §48.255 and §48.355,
and the Texas Family Code, §261.404.
§711.801.What action does the investigator take if a person served by an HCSW needs emergency services?
(a)
If the investigator determines that a person served by
an HCSW is in immediate threat of serious physical harm or death as a result
of abuse, neglect, or exploitation, then the investigator requests the HCSW,
if appropriate, to take action to remove the threat of physical harm or death.
In deciding whether it is appropriate to request that the HCSW take action,
the investigator considers the following factors at a minimum:
(1)
the ability of the HCSW to take action in a timely manner;
(2)
identity of the alleged perpetrator;
(3)
location of the HCSW site; and
(4)
type of action needed to remove the threat.
(b)
If the investigator determines that it is not appropriate
to request the HCSW to take action or if the HCSW does not respond appropriately
to a request, then the investigator provides emergency services necessary
to prevent serious physical harm or death.
(c)
The investigator informs CSRP of the investigator's determination
that a person served by an HCSW was in immediate threat of serious physical
harm or death as a result of abuse, neglect, or exploitation, within 24 hours
or the next working day of such determination.
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-200100503
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 23, 2001
For further information, please call: (512) 438-3437
aid to families with dependent
children
] rules.
Chapter 4.
MEDICAID PROGRAMS--CHILDREN AND PREGNANT WOMEN
AFDC
] rules.
Chapter 15.
MEDICAID ELIGIBILITY
paying the premiums on
the policy,
] with the right to change
the policy
[
it
] as he may see fit. The owner is the only individual who can receive
the cash surrender amount of the policy.
Subchapter D. RESOURCES
For reviews, the month being tested cannot be more than two months before
the month in which the review is being worked.
]
For life insurance policies, the beneficiary (unless
the beneficiary is a funeral home) must submit a statement that the cash value
of the policy be used for the client's burial expenses.
]
Subchapter C. BASIC PROGRAM REQUIREMENTS
Part 19.
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
the
court may order
] a child in TDPRS's managing conservatorship [
to be placed
] in a foster-care facility operated or regulated by:
or
]
.
]
Subchapter Y. CONTRACTING WITH LICENSED RESIDENTIAL CHILD-CARE PROVIDERS
Chapter 700.
CHILD PROTECTIVE SERVICES
Chapter 710.
PROTECTION OF CLIENTS AND STAFF
Subchapter B. ABUSE, NEGLECT, AND EXPLOITATION OF PERSONS SERVED BY COMMUNITY MENTAL HEALTH AND MENTAL RETARDATION CENTERS
Chapter 711.
INVESTIGATIONS IN TDMHMR FACILITIES AND RELATED PROGRAMS
Subchapter C. DUTY TO REPORT
Subchapter E. CONDUCTING THE INVESTIGATION
Subchapter G. RELEASE OF REPORT AND FINDINGS
Subchapter I. PROVISION OF SERVICES
Subchapter K. REQUESTING A REVIEW OF FINDING IF YOU ARE THE ADMINISTRATOR OR CONTRACTOR CEO