TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 362. DEFINITIONS

40 TAC §362.1

The Texas Board of Occupational Therapy Examiners proposes amendments to §362.1, concerning definitions. The amendments are proposed to cleanup and clarify the section and to revise the Board's definition of telehealth.

Cleanups and clarifications pertain to amending a reference to the Occupational Therapy Practice Act under the definition of examination and to adding to the definition of jurisprudence examination that such is an online examination and that the passing score is at least seventy percent.

The definition of telehealth in the proposed amendment has been revised to more closely align it with the current definition of telehealth service in Occupations Code, §111.001, Definitions, as amended by SB 1107 from the 85th Legislative Session (Regular).

Regarding telehealth, a proposed amendment to §372.1, Provision of Services, has also been submitted to the Texas Register for publication. In that proposed amendment, further regulations regarding telehealth, including regarding the use of telecommunications or information technology for the delivery of occupational therapy services via telehealth, are included.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule, and the rule will not impact a local economy.

Mr. Maline has also determined that for each of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the rule will be the expansion of occupational therapy services to consumers and the clarification of occupational therapy regulations and that there is no anticipated economic cost to persons having to comply with the proposed amendment. There will be no costs or adverse economic effects on small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The proposed amendments' impact on government growth during the first five years the rule would be in effect is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy. The rule repeals an existing regulation that requires telehealth services to be conducted using synchronous technology only.

Comments on the proposed amendments may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov no later than 30 days from the date that the proposed amendment is published in the Texas Register.

The amendments are proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§362.1.Definitions.

The following words, terms, and phrases, when used in this part shall have the following meaning, unless the context clearly indicates otherwise.

(1) Accredited Educational Program--An educational institution offering a course of study in occupational therapy that has been accredited or approved by the Accreditation Council for Occupational Therapy Education (ACOTE) of the American Occupational Therapy Association.

(2) Act--The Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454 of the Occupations Code.

(3) AOTA--American Occupational Therapy Association.

(4) Applicant--A person who applies for a license to the Texas Board of Occupational Therapy Examiners.

(5) Board--The Texas Board of Occupational Therapy Examiners (TBOTE).

(6) Certified Occupational Therapy Assistant (COTA®)--An individual who uses this term must hold a valid regular or provisional license to practice or represent self as an occupational therapy assistant in Texas and must practice under the general supervision of an OTR® or OT. An individual who uses this term is responsible for ensuring that he or she is otherwise qualified to use it by maintaining certification with NBCOT.

(7) Class A Misdemeanor--An individual adjudged guilty of a Class A misdemeanor shall be punished by:

(A) A fine not to exceed $4,000;

(B) Confinement in jail for a term not to exceed one year; or

(C) Both such fine and imprisonment (Vernon's Texas Codes Annotated Penal Code §12.21).

(8) Client--The entity that receives occupational therapy; also may be known as patient. Clients may be individuals (including others involved in the individual's life who may also help or be served indirectly such as a caregiver, teacher, parent, employer, spouse), groups, or populations (i.e., organizations, communities).

(9) Complete Application--Application form with photograph, license fee, jurisprudence examination with at least 70% of questions answered correctly, and all other required documents.

(10) Complete Renewal--Contains renewal fee, renewal form with continuing education submission form, home/work address(es) and phone number(s), jurisprudence examination with at least 70% of questions answered correctly, and all other required documents.

(11) Continuing Education Committee--Reviews and makes recommendations to the Board concerning continuing education requirements and special consideration requests.

(12) Coordinator of Occupational Therapy Program--The employee of the Executive Council who carries out the functions of the Texas Board of Occupational Therapy Examiners.

(13) Endorsement--The process by which the Board issues a license to a person currently licensed in another state or territory of the United States that maintains professional standards considered by the Board to be substantially equivalent to those set forth in the Act, and is applying for a Texas license for the first time.

(14) Evaluation--The process of planning, obtaining, documenting and interpreting data necessary for intervention. This process is focused on finding out what the client wants and needs to do and on identifying those factors that act as supports or barriers to performance.

(15) Examination--The Examination as provided for in §454.207 [Section 17] of the Practice Act (relating to License Examination). The current Examination is the initial certification examination given by the National Board for Certification in Occupational Therapy (NBCOT).

(16) Executive Council--The Executive Council of Physical Therapy and Occupational Therapy Examiners.

(17) Executive Director--The employee of the Executive Council who functions as its agent. The Executive Council delegates implementation of certain functions to the Executive Director.

(18) Intervention--The process of planning and implementing specific strategies based on the client's desired outcome, evaluation data and evidence, to effect change in the client's occupational performance leading to engagement in occupation to support participation.

(19) Investigation Committee--Reviews and makes recommendations to the Board concerning complaints and disciplinary actions regarding licensees and facilities.

(20) Investigator--The employee of the Executive Council who conducts all phases of an investigation into a complaint filed against a licensee, an applicant, or an entity regulated by the Board.

(21) Jurisprudence Examination--An examination covering information contained in the Texas Occupational Therapy Practice Act and Texas Board of Occupational Therapy Examiners Rules. This test is an open book, online examination with multiple choice and/or true-false questions. The passing score is at least 70%.

(22) License--Document issued by the Texas Board of Occupational Therapy Examiners which authorizes the practice of occupational therapy in Texas.

(23) Medical Condition--A condition of acute trauma, infection, disease process, psychiatric disorders, addictive disorders, or post surgical status. Synonymous with the term health care condition.

(24) NBCOT--National Board for Certification in Occupational Therapy.

(25) Non-Licensed Personnel--OT Aide or OT Orderly or other person not licensed by this Board who provides support services to occupational therapy practitioners and whose activities require on-the-job training and supervision.

(26) Non-Medical Condition--A condition where the ability to perform occupational roles is impaired by developmental disabilities, learning disabilities, the aging process, sensory impairment, psychosocial dysfunction, or other such conditions which do not require the routine intervention of a physician.

(27) Occupation--Activities of everyday life, named, organized, and given value and meaning by individuals and a culture. Occupation is everything people do to occupy themselves, including looking after themselves, enjoying life and contributing to the social and economic fabric of their communities.

(28) Occupational Therapist (OT)--An individual who holds a valid regular or provisional license to practice or represent self as an Occupational Therapist in Texas. This definition includes an Occupational Therapist or one who is designated as an Occupational Therapist, Registered (OTR®).

(29) Occupational Therapist, Registered (OTR®)--An individual who uses this term must hold a valid regular or provisional license to practice or represent self as an Occupational Therapist in Texas by maintaining registration through NBCOT.

(30) Occupational Therapy Assistant (OTA)--An individual who holds a valid regular or provisional license to practice or represent self as an Occupational Therapy Assistant in Texas, and who is required to be under the continuing supervision of an OT. This definition includes an individual who is designated as a Certified Occupational Therapy Assistant (COTA®) or an Occupational Therapy Assistant (OTA).

(31) Occupational Therapy Plan of Care--A written statement of the planned course of Occupational Therapy intervention for a client. It must include goals, objectives and/or strategies, recommended frequency and duration, and may also include methodologies and/or recommended activities.

(32) Occupational Therapy Practice--Includes:

(A) Methods or strategies selected to direct the process of interventions such as:

(i) Establishment, remediation, or restoration of a skill or ability that has not yet developed or is impaired.

(ii) Compensation, modification, or adaptation of activity or environment to enhance performance.

(iii) Maintenance and enhancement of capabilities without which performance in everyday life activities would decline.

(iv) Health promotion and wellness to enable or enhance performance in everyday life activities.

(v) Prevention of barriers to performance, including disability prevention.

(B) Evaluation of factors affecting activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure, and social participation, including:

(i) Client factors, including body functions (such as neuromuscular, sensory, visual, perceptual, cognitive) and body structures (such as cardiovascular, digestive, integumentary, genitourinary systems).

(ii) Habits, routines, roles and behavior patterns.

(iii) Cultural, physical, environmental, social, and spiritual contexts and activity demands that affect performance.

(iv) Performance skills, including motor, process, and communication/interaction skills.

(C) Interventions and procedures to promote or enhance safety and performance in activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure, and social participation, including:

(i) Therapeutic use of occupations, exercises, and activities.

(ii) Training in self-care, self-management, home management and community/work reintegration.

(iii) Development, remediation, or compensation of physical, cognitive, neuromuscular, sensory functions and behavioral skills.

(iv) Therapeutic use of self, including one's personality, insights, perceptions, and judgments, as part of the therapeutic process.

(v) Education and training of individuals, including family members, caregivers, and others.

(vi) Care coordination, case management and transition services.

(vii) Consultative services to groups, programs, organizations, or communities.

(viii) Modification of environments (home, work, school, or community) and adaptation of processes, including the application of ergonomic principles.

(ix) Assessment, design, fabrication, application, fitting and training in assistive technology, adaptive devices, and orthotic devices, and training in the use of prosthetic devices.

(x) Assessment, recommendation, and training in techniques to enhance functional mobility including wheelchair management.

(xi) Driver rehabilitation and community mobility.

(xii) Management of feeding, eating, and swallowing to enable eating and feeding performance.

(xiii) Application of physical agent modalities, and use of a range of specific therapeutic procedures (such as wound care management; techniques to enhance sensory, perceptual, and cognitive processing; manual therapy techniques) to enhance performance skills.

(33) Occupational Therapy Practitioners--Occupational Therapists and Occupational Therapy Assistants licensed by this Board.

(34) Outcome--The focus and targeted end objective of occupational therapy intervention. The overarching outcome of occupational therapy is engagement in occupation to support participation in context(s).

(35) Place(s) of Business--Any facility in which a licensee practices.

(36) Practice--Providing occupational therapy as a clinician, practitioner, educator, or consultant to clients located in Texas at the time of the provision of occupational therapy services. Only a person holding a license from this Board may practice occupational therapy in Texas, and the site of practice is the location in Texas where the client is located at the time of the provision of services.

(37) Rules--Refers to the TBOTE Rules.

(38) Screening--A process used to determine a potential need for occupational therapy interventions, educational and/or other client needs. Screening information may be compiled using observation, client records, the interview process, self-reporting, and/or other documentation.

(39) Telehealth--A mode of service delivery for the provision of occupational therapy services delivered by an occupational therapy practitioner to a client at a different physical location using telecommunications or information technology [through the use of visual and auditory, synchronous, real time, interactive electronic information/communications technologies. As a mode of service delivery, telehealth is contact with the client and the occupational therapy practitioner(s)]. Telehealth refers only to the practice of occupational therapy by occupational therapy practitioners who are licensed by this Board with clients who are located in Texas at the time of the provision of occupational therapy services. Also may be known as other terms including but not limited to telepractice, telecare, telerehabilitation, and e-health services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704792

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 363. CONSUMER/LICENSEE INFORMATION

40 TAC §363.3, §363.4

The Texas Board of Occupational Therapy Examiners proposes new rules §363.3, concerning negotiated rulemaking, and §363.4, concerning alternative dispute resolution. The new rules are proposed in order to comply with statutory amendments to §454.108 of the Occupational Therapy Practice Act regarding establishing a policy on Negotiated Rulemaking and Alternative Dispute Resolution.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed new rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rules, and the rules will not impact a local economy.

Mr. Maline has also determined that for each of the first five years the proposed new rules are in effect, the public benefit anticipated as a result of enforcing the rules will be the clarification of occupational therapy regulations and that there is no anticipated economic cost to persons having to comply with the rules. There will be no costs or adverse economic effects on small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The proposed new rules' impact on government growth in the first five years the proposed rules will be in effect is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does create a new regulation; does expand the existing powers and duties of the board; does not increase or decrease the number of individuals subject to the rules' applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed new rules may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov no later than 30 days from the date that these proposed new rules are published in the Texas Register.

The new rules are proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§363.3.Negotiated Rulemaking.

It is the policy of the Board to engage in negotiated rulemaking procedures consistent with Texas Government Code, Chapter 2008, when appropriate.

§363.4.Alternative Dispute Resolution.

It is the policy of the Board to use alternative dispute resolution where appropriate consistent with Texas Government Code, Chapter 2009, and any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704789

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 367. CONTINUING EDUCATION

40 TAC §367.2, §367.4

The Texas Board of Occupational Therapy Examiners proposes an amendment to §367.2, concerning categories of education, and proposes a new rule, §367.4, concerning a process for selecting a peer organization to evaluate and approve continuing education courses. The amendment is proposed to clarify, cleanup, and revise the section regarding continuing education requirements. The new rule establishes a process for selecting a peer organization to evaluate and approve continuing education courses as required by recent statutory changes to §454.254(e) of the Occupational Therapy Practice Act.

The proposed amendment to §367.2 includes a cleanup regarding the continuing education documentation for home study courses, educational teleconferences, Internet-based courses, and video instruction to include that such may include a letter of verification. The amendment, furthermore, clarifies the continuing education documentation requirement for presentations by licensees to include that documentation shall include verification of presentation. In the amendment, a reference to documentation for this activity including a brochure or conference guide has been removed. Another revision is to remove the reference to TBOTE, the Texas Board of Occupational Therapy Examiners, from a provision regarding participation in volunteer activities related to occupational therapy for the purpose of tangible outcomes such as official documents, publications, and official reports.

Proposed new rule §367.4 would add to the Board Rules that if the Board chooses to authorize a license holder peer organization in Texas to evaluate and approve continuing education courses, the Board will conduct a request for proposals and bid process to select an organization and will request bids and proposals at least once every four years. New rule §367.4 is proposed pursuant to recent statutory changes to the Occupational Therapy Practice Act §454.254(e) during the 85th Legislative Session (Regular).

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed rule amendment and new rule are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rules, and the rules will not impact a local economy.

Mr. Maline has also determined that for each of the first five years the proposed rule amendment and new rule are in effect, the public benefit anticipated as a result of enforcing the rules will be the clarification of occupational therapy regulations and that there is no anticipated economic cost to persons having to comply with the rules. There will be no costs or adverse economic effects on small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment and new rule.

The proposed rule amendment's and new rule's impact on government growth during the first five years the rules would be in effect is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does create a new regulation; does expand the existing powers and duties of the Board; does not increase or decrease the number of individuals subject to the rules' applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed rule amendment and new rule may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov no later than 30 days from the date that the proposal is published in the Texas Register.

The proposed rule amendment and new rule are proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§367.2.Categories of Education.

Continuing education activities completed by the licensee for license renewal shall be acceptable if falling under one or more of the following categories and meeting further requirements in this chapter.

(1) Formal academic courses from an occupational therapy program.

(A) Completion of course work at or through an accredited college or university shall be counted as follows: three CE hours for each credit hour of a course with a grade of A, B, C, and/or P (Pass). Thus a three-credit course counts for 9 contact hours of continuing education, no maximum. Documentation of this type of CE credit shall include a transcript from the accredited college or university.

(B) Creation of a new course or courses at or through an accredited college or university may be counted for 10 hours maximum. Proof of this type of CE shall be a letter from the Program Director.

(2) In-service educational programs, training programs, institutes, seminars, workshops, facility based courses, and conferences with specified learning objectives. Hour for hour credit on program content only, no maximum. Documentation of this type of CE credit shall include a certificate of completion or letter of verification.

(3) Development of publications, media materials or research/grant activities per two year renewal period: Documentation of this type of CE credit shall include a copy of the actual publication or media material(s), or title page and receipt of grant proposal.

(A) Published scholarly work in a peer-review journal:

(i) Primary or second author, 15 hours maximum.

(ii) Other author, consultant, reviewer, or editor, 5 hours maximum.

(B) Grant or research proposals accepted for consideration:

(i) Principal investigator or co-principal investigator, 10 hours maximum.

(ii) Consultant or reviewer, 4 hours maximum.

(C) Published book:

(i) Primary author or book editor, 15 hours maximum.

(ii) Second or other author, 7 hours maximum.

(iii) Consultant or reviewer, 5 hours maximum.

(D) Published book chapter or monograph:

(i) Primary author, 7 hours maximum.

(ii) Second or other author, consultant, reviewer, or editor, 2 hours maximum.

(E) Author, consultant, reviewer, or editor of other practice related publications such as newsletters, blogs, and trade magazines, 2 hours maximum.

(F) Developer of practice-related or instructional materials using alternative media such as video, audio, or software programs or applications to advance the professional skills of others (not for proprietary use), 15 hours maximum.

(4) Home study courses, educational teleconferences, Internet-based courses, and video instruction, no maximum.

(A) These courses must have:

(i) Specified learning objectives;

(ii) A post-test; and

(iii) A certificate of completion or letter of verification.

(B) Educational teleconferences or Internet courses must reflect a pre-determined number of contact hours.

(5) Presentations by licensee: Documentation of this type of CE credit shall include [a letter of] verification of presentation [and number of hours for the presentation or copy of organization's brochure or conference guide] noting the date, title, and number of contact hours of the presentation, presenter(s), and type of presentation (i.e.,[:] 2 hour poster, 3 hour workshop).

(A) Professional presentation, e.g. in-services, workshops, institutes: Any presentation counted only one time. Hour for hour credit. 10 hours maximum.

(B) Community/Service organization presentation: Any presentation counted once. Hour for hour credit. 10 hours maximum.

(6) Fieldwork Supervision: 10 hours maximum.

(A) A licensee may earn 2 contact hours for each Level 1 student supervised:

(i) 40 hours of Level 1 equals 1 hour of CE; or

(ii) 80 hours of Level 1 equals 2 hours of CE.

(B) A licensee may earn 8 contact hours for each Level 2 student supervised:

(i) 8 weeks equals 6 hours of CE; or

(ii) 12 weeks equals 8 hours of CE.

(C) A licensee may earn a maximum of 10 contact hours for fieldwork supervision per renewal period.

(D) Fieldwork supervision hours may be evenly divided between licensees, not to exceed two fieldwork educators per student.

(E) Fieldwork supervision must be completed before the licensee's renewal date.

(F) Documentation of this type of CE credit shall include verification provided by the school to the fieldwork educator(s) with the name of the student, level of fieldwork, school, and dates or hours of fieldwork or the signature page of the completed evaluation form. Evaluation scores and comments should be deleted or blocked out.

(7) Mentorship:

(A) Participation as a mentor or mentee for the purpose of the development of occupational therapy skills by a mentee under the guidance of a mentor skilled in a particular occupational therapy area. Both the mentor and mentee must hold a regular OT or OTA license in a state or territory of the U.S. Supervision hours as per §373.3 of this title (relating to Supervision of an Occupational Therapy Assistant) are not eligible for continuing education hours.

(B) Documentation shall include a signed mentorship agreement between a mentor and mentee that outlines specific goals and objectives and designates the plan of activities that are to be met by the mentee; the names of both mentor and mentee and their license numbers and issuing states; an activity log that corresponds to the mentorship agreement and lists dates and hours spent on each objective-based activity; a final evaluation of the outcomes of the mentorship agreement completed by the mentor; and a final evaluation of the outcomes of the mentorship agreement completed by the mentee.

(C) Participation as a Mentee: A licensee may earn one hour of CE for each 3 hours spent in activities as a mentee directly related to the achievement of goals and objectives up to a maximum of 15 CE hours.

(D) Participation as Mentor: A licensee may earn one hour of CE for each 5 hours spent in activities as a mentor up to a maximum of 10 CE hours.

(8) Participation in volunteer activities related to occupational therapy including service on a committee, board, or commission of a state occupational therapy association, AOTA, or NBCOT[, or TBOTE] for the purpose of tangible outcomes such as official documents, publications, and official reports. Documentation of this type of CE credit shall include a copy of the actual publication or official document/report which reflects the licensee's name. Maximum of 10 contact hours.

(9) NBCOT Navigator™ Activities: Licensees may earn up to 2 contact hours of CE for the completion of NBCOT Navigator activities. For such activities, 1 NBCOT CAU is the equivalent of .25 CE hours. Documentation of this type of CE is a certificate of completion or letter of verification. Self-reflections and self-assessments, reading list and research portal activities, professional development plans, or similar activities are not eligible for CE credit.

(10) Any deviation from the continuing education categories will be reviewed on a case by case basis by the Coordinator of Occupational Therapy or by the Continuing Education Committee. A request for special consideration must be submitted in writing a minimum of 60 days prior to expiration of the license.

§367.4.Process for Selecting a Peer Organization to Evaluate and Approve Continuing Education Courses.

If the Board chooses to authorize a license holder peer organization in Texas to evaluate and approve continuing education courses:

(1) The Board will conduct a request for proposals and bid process to select an organization, and

(2) The Board will request bids and proposals at least once every four years.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704790

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 372. PROVISION OF SERVICES

40 TAC §372.1

The Texas Board of Occupational Therapy Examiners proposes amendments to §372.1, concerning provision of services. The amendments are proposed to cleanup and clarify the section in general and to revise and clarify the section's regulations regarding occupational therapy services provided via telehealth and modifications to the plan of care.

The amendments to the section would remove the requirement that the initial evaluation for a medical condition must be conducted in person and may not be conducted via telehealth. New language instead would include that the occupational therapist is responsible for determining whether any aspect of the evaluation may be conducted via telehealth or must be conducted in person. The amendments would also remove current language that the occupational therapist must have real time interaction with the client during the evaluation process either in person or via telehealth to instead include that the occupational therapist must have contact with the client during the evaluation via telehealth using synchronous audiovisual technology or in person. The amendments would also add that other telecommunications or information technology may be used to aid in the evaluation but may not be the primary means of contact or communication. The amendments, in addition, would remove that the occupational therapy practitioners must have real time interaction with the client during the intervention process either in person or via telehealth and instead would include that the occupational therapy practitioners must have contact with the client during the intervention session via telehealth using synchronous audiovisual technology or in person. The amendments would add, as well, that other telecommunications or information technology may be used to aid in the intervention session but may not be the primary means of contact or communication. The amendments would, additionally, include that except where otherwise restricted by rule, the occupational therapy practitioner is responsible for determining whether any aspect of the intervention session may be conducted via telehealth or must be conducted in person. Concurrent with these changes, the provision requiring that the occupational therapist is responsible for determining whether any aspect of the provision of services may be conducted via telehealth or must be conducted in person has been removed in the proposal.

Regarding telehealth, a proposed amendment to §362.1, concerning definitions, has also been submitted to the Texas Register for publication. The definition of telehealth in the proposed amendment to §362.1 has been revised to more closely align it with the current definition of telehealth service in Occupations Code, §111.001, Definitions, as amended by SB 1107 from the 85th Legislative Session (Regular).

The amendments to §372.1 would also remove language that the occupational therapist and an occupational therapy assistant may work jointly to revise the short-term goals, but the final determination resides with the occupational therapist and that revisions to the plan of care and goals must be documented by the occupational therapist and/or occupational therapy assistant to reflect revisions at the time of the change. The amendment would add instead that modifications to the plan of care must be documented.

The amendments includes further cleanups and clarifications including adding the phrase "discontinuation of occupational therapy services" under applicable provisions regarding a discharge.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule, and the rule will not impact local economies.

Mr. Maline has also determined that for each of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the rule will be the expansion of occupational therapy services to consumers and the clarification of occupational therapy regulations and that there is no anticipated economic cost to persons having to comply with the proposed amendment. There will be no costs or adverse economic effects on small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The proposed amendments' impact on government growth during the first five years the rule would be in effect is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy. The proposed rule repeals existing regulations that limit the use of telehealth.

Comments on the proposed amendments may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov no later than 30 days from the date that the proposed amendment is published in the Texas Register.

The amendments are proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§372.1.Provision of Services.

[(a) The occupational therapist is responsible for determining whether any aspect of the provision of services may be conducted via telehealth or must be conducted in person.]

(a) [(b)] Medical Conditions.

(1) Occupational therapists may [provide consultation or monitored services, or screen or] evaluate the client to determine the need for occupational therapy services without a referral. However, a referral must be requested at any time during the evaluation process when necessary to ensure the safety and welfare of the client.

[(2) The initial evaluation for a medical condition must be conducted in person and may not be conducted via telehealth.]

(2) [(3)] Intervention for a medical condition by an occupational therapy practitioner requires a referral from a licensed referral source.

(b) Non-Medical Conditions. The evaluation or intervention for a non-medical condition does not require a referral. However, a referral must be requested at any time during the evaluation or intervention process when necessary to ensure the safety and welfare of the client.

[(c) Non-Medical Conditions.]

[(1) Consultation, monitored services, screening, and evaluation for need of services may be provided without a referral.]

[(2) Non-medical conditions do not require a referral. However, a referral must be requested at any time during the evaluation or intervention process when necessary to ensure the safety and welfare of the client.]

(c) [(d)] Methods of Referral. The referral must be from a licensed referral source in accordance with the Practice Act, §454.213 (relating to Accepted Practice; Practitioner's Referral), and may be transmitted in the following ways:

(1) in a written document, including faxed and emailed documents; or

(2) verbally, either in person or by electronic information/communications technologies. If a referral is transmitted verbally, it must be documented by the authorized personnel who receives the referral. In this section, "authorized personnel" means staff members authorized by the employer or occupational therapist to receive referrals transmitted verbally.

(d) [(e)] Screening, Consultation, and Monitored Services. A screening, consultation, or monitored services may be performed by an occupational therapy practitioner without a referral.

(e) [(f)] Evaluation.

(1) Only an occupational therapist may perform an initial evaluation or any re-evaluations.

(2) An occupational therapy plan of care must be based on an occupational therapy evaluation.

(3) The occupational therapist is responsible for determining whether any aspect of the evaluation may be conducted via telehealth or must be conducted in person.

(4) [(3)] The occupational therapist must have contact [real time interaction] with the client during the evaluation [process either in person or] via telehealth using synchronous audiovisual technology or in person. Other telecommunications or information technology may be used to aid in the evaluation but may not be the primary means of contact or communication.

(5) [(4)] The occupational therapist may delegate to an occupational therapy assistant or temporary licensee the collection of data for the evaluation [assessment]. The occupational therapist is responsible for the accuracy of the data collected by the assistant.

(f) [(g)] Plan of Care.

(1) Only an occupational therapist may initiate, develop, modify or complete an occupational therapy plan of care. It is a violation of the OT Practice Act for anyone other than the [evaluating or treating] occupational therapist to dictate, or attempt to dictate, when occupational therapy services should or should not be provided, the nature and frequency of services that are provided, when the client should be discharged, or any other aspect of the provision of occupational therapy as set out in the OT Act and Rules.

(2) Modifications to the plan of care must be documented.

[(2) The occupational therapist and an occupational therapy assistant may work jointly to revise the short-term goals, but the final determination resides with the occupational therapist. Revisions to the plan of care and goals must be documented by the occupational therapist and/or occupational therapy assistant to reflect revisions at the time of the change.]

(3) An occupational therapy plan of care may be integrated into an interdisciplinary plan of care, but the occupational therapy goals or objectives must be easily identifiable in the plan of care.

(4) Only occupational therapy practitioners may implement the written plan of care once it is completed by the occupational therapist.

(5) Only the occupational therapy practitioner may train non-licensed personnel or family members to carry out specific tasks that support the occupational therapy plan of care.

(6) The occupational therapist is responsible for determining whether intervention is needed and if a referral is required for occupational therapy intervention.

(7) Except where otherwise restricted by rule, the occupational therapy practitioner is responsible for determining whether any aspect of the intervention session may be conducted via telehealth or must be conducted in person.

(8) [(7)] The occupational therapy practitioners must have contact [real time interaction] with the client during the intervention session [process either in person or] via telehealth using synchronous audiovisual technology or in person. Other telecommunications or information technology may be used to aid in the intervention session but may not be the primary means of contact or communication.

(9) [(8)] Devices that are in sustained skin contact with the client (including but not limited to wheelchair positioning devices, splints, hot/cold packs, or [and] therapeutic tape) require the on-site and attending presence of the occupational therapy practitioner for any initial applications. The occupational therapy practitioner is responsible for determining the need to be on-site and attending for subsequent applications or modifications.

(10) [(9)] Except where otherwise restricted by rule, the supervising occupational therapist may only delegate to an occupational therapy assistant or temporary licensee tasks that they both agree are within the competency level of that occupational therapy assistant or temporary licensee.

(g) [(h)] Documentation.

(1) The client's records include the medical referral, if required, and the plan of care. The plan of care includes the initial [examination and] evaluation; the goals and any updates or change of the goals; the documentation of each intervention session by the OT or OTA providing the service; progress notes and any re-evaluations, if required; any patient related documents [written communication]; and the discharge or discontinuation of occupational therapy services documentation.

(2) The licensee providing occupational therapy services must document for each intervention session. The documentation must accurately reflect the intervention, decline of intervention, and/or modalities provided.

(3) The occupational therapy assistant must include the name of a supervising OT in each intervention note. This may not necessarily be the occupational therapist who wrote the plan of care, but an occupational therapist who is readily available to answer questions about the client's intervention at the time of the provision of services. If this requirement is not met, the occupational therapy assistant may not provide services.

(h) [(i)] Discharge or Discontinuation of Occupational Therapy Services.

(1) Only an occupational therapist has the authority to discharge clients from occupational therapy services. The discharge or discontinuation of occupational therapy services is based on whether the client has achieved predetermined goals, has achieved maximum benefit from occupational therapy services, or when other circumstances warrant discontinuation of occupational therapy services.

(2) The occupational therapist must review any information from the occupational therapy assistant(s), determine if goals were met or not, complete and sign the discharge or discontinuation of occupational therapy services documentation, and/or make recommendations for any further needs of the client in another continuum of care.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704791

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 711. INVESTIGATIONS OF INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS

The Texas Health and Human Services Commission (HHSC) proposes amendments to the Texas Administrative Code (TAC) Title 40, Part 19, Chapter 711, including amendments to §711.7 concerning What does APS not Investigate Under this Chapter?; §711.17 concerning How is Verbal/Emotional abuse Defined?; §711.19 concerning How is Neglect Defined?; §711.21 concerning How is exploitation defined?; §711.405 concerning What Action does the Investigator Take if the Alleged Perpetrator is a Licensed Professional?; §711.415 concerning What are the Requirements for Face-to-Face Contact with the Alleged Victim?; §711.419 concerning What if the Investigator cannot complete the Investigation on Time?; §711.603 concerning What is Included in the Investigation Report?; and §§711.901, 711.903, 711.905, 711.907, 711.909, 711.911, 711.913, and 711.915 concerning Appealing the Investigation Finding; and the repeal of §711.425 concerning How are Allegations Classified?

BACKGROUND AND PURPOSE

The amendments and repeal are intended to streamline administrative processes and address specific challenges experienced through the expanded scope and jurisdiction of Adult Protective Services (APS), while providing quality investigations to vulnerable individuals receiving services.

Senate Bills (SBs) 760 and 1880, 84(R), 2015, expanded the scope and jurisdiction of the APS Provider Investigations (PI) program to resolve gaps, inconsistencies, and ambiguities in the investigation of abuse, neglect and exploitation of individuals receiving Medicaid home and community-based services. The expansion ensured Texas was in compliance with revised Centers for Medicare and Medicaid Services requirements to ensure the health and welfare of consumers. SBs 760 and 1880 also brought the APS statutory framework up to date regarding the transition to managed care from the 83rd Legislature.

With the expanded scope and jurisdiction, APS PI intakes increased 73% overall from FY 15 to FY 16, but completed investigations increased by only 5%. Intakes increased most notably for neglect and exploitation allegation categories. For allegations of exploitation, intakes increased 374% from FY 15 to FY 16, then another 56% from FY 16 to FY 17.

APS has applied different strategies to manage the workload which includes; procedural efficiencies, working overtime, and temporarily reassigning caseworkers from across the state to crisis areas. Despite these strategies, APS PI has not been able to remain current with the increased case load. HHSC proposes rule changes to increase efficiencies associated with PI workload, while aligning PI responsibilities with the scope and jurisdiction provided in statute.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §711.7 describe the types of situations that are not subject to investigation by APS PI. The changes specify that allegations related to loans made by an individual receiving services, exploitation less than $25.00, theft, and situations involving licensed professionals would not be within the scope for investigation by APS PI.

The proposed amendments to §711.17 modify the definition of verbal/emotional abuse by specifying the type of information that qualifies as an allegation of verbal/emotional abuse. Specifically, the change removes "curse" from the definition and focuses on more serious verbal abuse, such as humiliation and vilification of an individual.

The proposed amendment to §711.19 clarifies the definition of neglect as it applies to allegations within institutional settings and private residential settings.

The proposed amendment to §711.21 clarifies the definition of exploitation to exclude those allegations that would not be within the scope for investigation by APS PI. The changes specify that allegations related to loans made by an individual receiving services, exploitation less than $25.00, and theft are excluded.

The proposed amendments to §711.405 remove any licensed professional as an alleged perpetrator for investigation by APS PI. Licensed professionals are not eligible for the employee misconduct registry and are licensed through a professional state board. The amendments provide for referral of any act by the licensed professional, to the provider and appropriate professional licensing board.

The proposed amendment to §711.415 changes the requirements for a face-to-face contact with the alleged victim. The change creates greater flexibility and allows the investigator to determine when a face-to-face contact is appropriate, specifically expanding the face-to-face exemption to any allegation type when there is no injury or risk of harm to the individual.

The proposed amendment to §711.419 changes the requirements for requesting and processing an extension request. The change removes timeframes and some administrative functions related to investigation extensions, to allow for increased efficiencies in processes and resource allocation.

The repeal of §711.425 would remove the requirement for APS PI to classify allegations, which will align with the current practice of the classification of allegations being performed by Health and Human Service departments based on their program specific rules.

The proposed amendment to §711.603 changes the information required in the APS Final Abuse and Neglect Report by reducing the amount of documentation requirements in the report. The change aligns the report content and format with stakeholder feedback.

The proposed amendments to §§711.901, 711.903, 711.905, 711.907, 711.909, 711.911, 711.913, and 711.915 change the manner in which an appeal of the finding may be requested. The changes provide the correct address to submit appeal requests. The changes align the appeal process with the current organizational structure of APS PI within HHSC and provides accurate contact information to a requestor.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC/APS PI has determined that during the first five years that the section(s) will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of employee positions;

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

(4) the proposed rules will not affect fees paid to the agency;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand, limit, and repeal existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS AND MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse impact on small businesses, micro-businesses, and rural communities required to comply with the rules as proposed.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and does not impose a cost on regulated persons.

PUBLIC BENEFIT

Diana Choban, Director for APS Provider Investigations, has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be an increase in completed investigations, a decrease in the case backlog, and higher quality investigations of abuse, neglect, and exploitation by APS PI.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Diana Choban, APS PI Director, 14000 Summit Dr., Austin, Texas 78728; by fax to (512) 339-5920; or by e-mail to APSPolicy@dfps.state.tx.us within 30 days of publication of this proposal in the Texas Register.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 18R009" in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §§711.7, 711.17, 711.19, 711.21

STATUTORY AUTHORITY

The amendments are authorized by Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies.

The amendments implement HRC §42.042.

§711.7.What does APS not investigate under this chapter?

APS does not investigate:

(1) if another branch of HHSC [DFPS] or another state agency is responsible under state law for the investigation;

(2) general complaints such as:

(A) rights violations;

(B) daily administrative operations;

(3) loans made by an individual receiving services to a provider;

(4) allegations of exploitation less than $25.00;

(5) theft, as defined in Chapter 31 of the Texas Penal Code;

(6) allegations involving licensed professionals serving in the capacity under the licensure; or

(7) [(3)] operational issues related to the business of managed care or consumer directed services.[; or]

[(4) if the allegation involves only the clinical practice of a licensed professional.]

§711.17.How is verbal/emotional abuse defined?

(a) In this chapter, when the alleged perpetrator is a direct provider, verbal/emotional abuse is defined as [any act or use of verbal or other communication, including gestures, to]:

(1) the willful infliction of an act or repeated acts of verbal or other communication, including gestures, to harass, intimidate, humiliate [curse, vilify,] or degrade an individual receiving services; or

(2) threats of physical or emotional harm against [threaten] an individual receiving services [with physical or emotional harm].

(b) In order for the definition of verbal/emotional abuse to be met, the act or communication must result in an individual receiving services experiencing:

(1) significant impairment to his or her physical, mental, or emotional heath [result in observable distress or harm to the individual receiving services]; or

(2) substantial physical, mental, or emotional distress as identified by an appropriate medical professional [be of such a serious nature that a reasonable person would consider it harmful or causing distress].

§711.19.How is neglect defined?

(a) In this chapter, when the alleged perpetrator is a direct provider to an individual receiving services in or from a facility, local authority, community center, or HCS waiver program or TxHmL waiver program provider, neglect is defined as a negligent act or omission which caused or may have caused physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death.

(b) Examples of neglect may include, but are not limited to, the failure to:

(1) establish or carry out an appropriate individual program plan or treatment plan for a specific individual receiving services, if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death;

(2) provide adequate nutrition, clothing, or health care to a specific individual receiving services in a residential or inpatient program if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death; or

(3) provide a safe environment for a specific individual receiving services, including the failure to maintain adequate numbers of appropriately trained staff, if such failure results in physical or emotional injury or death to an individual receiving services or which placed an individual receiving services at risk of physical or emotional injury or death.

(c) In this chapter, when the alleged perpetrator is a direct provider to an individual receiving services from any other services provider, neglect is defined as a negligent act or omission which caused physical or emotional injury or death to an individual receiving services.

§711.21.How is exploitation defined?

[(a)] In this chapter, when the alleged perpetrator is a direct provider to an individual receiving services [in or from a facility, local authority, community center, or HCS waiver program or TxHmL waiver program provider], exploitation [:]

[(1)] is defined as the illegal or improper act or process of using an individual receiving services or the resources of an individual receiving services for monetary or personal benefit, profit, or gain,[;] and excludes:

(1) [(2)] [excludes] theft as defined in Chapter 31 of the Texas Penal Code;[.]

(2) allegations of exploitation less than $25.00; and

(3) a loan made by an individual receiving services as defined by Texas Human Resources Code Chapter 48, Subchapter F.

[(b) In this chapter when the alleged perpetrator is a direct provider to an individual receiving services from any other services provider, exploitation:]

[(1) is defined as the illegal or improper act or process of using or attempting to use an individual receiving services or the resources of an individual receiving services for monetary or personal benefit, profit, or gain, and]

[(2) includes theft as defined in Chapter 31, of the Texas Penal Code.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704761

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 339-5920


SUBCHAPTER E. CONDUCTING THE INVESTIGATION

40 TAC §§711.405, 711.415, 711.419

The amendments are authorized by Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies.

The amendments implement HRC §42.042.

§711.405.What action does the investigator take if the alleged perpetrator is a licensed professional?

(a) If the [The] investigator determines [whether] the allegation involves a licensed professional serving in a capacity under the licensure at the time of the alleged abuse, neglect, or exploitation, [clinical practice by consultation with an appropriate professional, and in state hospitals, in accordance with 25 TAC §417.509 (relating to Peer Review).]

[(b)] [If the allegation is determined to involve clinical practice, the investigator refers the allegation to the service provider for peer or professional review. If the service provider does not have a peer or professional review process,] the investigator refers the allegation back to the service provider and forwards the allegation to [as well as] the appropriate professional licensing board.

(b) If the investigator determines the alleged perpetrator is a licensed professional but was not serving in a capacity under the licensure at the time of the alleged abuse, neglect, or exploitation, the investigator investigates the alleged abuse, neglect, or exploitation.

(c) If there are multiple allegations, the investigator:

(1) refers any allegation involving a licensed professional serving in a capacity under the licensure back to the service provider and forwards the allegations to the appropriate professional licensing board; and

(2) investigates any allegation:

(A) involving a licensed professional not serving in a capacity under the licensure, or

(B) not involving a licensed professional.

[(c) If the allegation is determined to not involve clinical practice, the investigator investigates the allegation.]

[(d) If there are multiple allegations, the investigator refers any allegation involving clinical practice to the service provider for peer/professional review and investigates any allegation not involving clinical practice.]

§711.415.What are the requirements for face-to-face contact with the alleged victim?

(a) The investigator makes a face-to-face contact with the alleged victim except when the intake alleges any allegation type[:]

[(1) Exploitation as the only allegation type and the total alleged exploitation amount is less than $25.00; or]

[(2)] [Neglect] when there is no physical or emotional injury to the alleged victim and no risk of physical or emotional injury or death to the alleged victim.

(b) If during the course of an investigation the investigator determines a face-to-face contact with the alleged victim is necessary, the investigator conducts such contact. [makes a face-to-face contact with the alleged victim within the time frames provided in subsection (c) of this section.]

[(c)] [When required, the investigator makes a face-to-face contact with the alleged victim within the following time frames:]

[Figure: 40 TAC §711.415(c)]

§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 [Extension Request form] to the appropriate [APS] program administrator or designee.

(b) The [APS] program administrator or designee may grant an extension for good cause [for one to 14 calendar days depending on the needs of the investigation].

(c) The investigator notifies [must notify] the service provider of the extension [all extensions].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704763

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 339-5920


40 TAC §711.425

The repeal is authorized by Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies.

The repeal implements HRC §42.042.

§711.425.How are allegations classified?

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704764

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 339-5920


SUBCHAPTER G. RELEASE OF REPORT AND FINDINGS

40 TAC §711.603

The amendments are authorized by Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies.

The amendments implement HRC §42.042.

§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) concerns and recommendations, if any, resulting from the investigation;

(6) the name of the perpetrator or alleged perpetrator[, designated in accordance with §711.423 or 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 or other health care professional's exam and treatment of abuse/neglect related injuries documented on the DADS or DSHS Client Injury/Incident Report for state supported living centers or state hospitals;]

(7) [(9)] photographs relevant to the investigation, including photographs showing the existence of injuries or the non-existence of injuries, when appropriate; and

(8) [(10)] all witness statements and supporting documents.[; and]

[(11) a signed and dated Client Abuse and Neglect Report (AN-1-A) form, as appropriate, reflecting the information contained in paragraphs (4), (6), and (7) of this section.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704765

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 339-5920


SUBCHAPTER J. APPEALING THE INVESTIGATION FINDING

40 TAC §§711.901, 711.903, 711.905, 711.907, 711.909, 711.911, 711.913, 711.915

The amendments are authorized by Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies.

The amendments implement HRC §42.042.

§711.901.What is an appeal of the investigation?

(a) An appeal is a challenge of the findings of the investigation, as described in §711.421 of this chapter (relating to What are the possible findings of an investigation?) by a qualified party, as described by §711.905 of this chapter (relating to Who may request an appeal of the investigation?) that results in a review of the investigation.

(b) An appeal may not challenge the determination of whether a confirmation rises to the level of reportable conduct for purposes of the Employee Misconduct Registry.

(c) There are two levels of appeal:

(1) The first level [of] appeal is conducted by the Director of Provider Investigations or his or her [their] designee, or a reviewer designated by the Director of Provider Investigations [Assistant Commissioner of APS].

(2) If a qualified party disagrees with the decision of the first appeal, the qualified party may further appeal. This second level appeal is conducted by a reviewer designated by the Director of Provider Investigations [Assistant Commissioner of APS].

(d) The determination resulting from the second appeal is final and cannot be appealed by any qualified party except Disability Rights Texas or as described in §711.913 (relating to What if the administrator of a state-operated facility disagrees with the second level appeal decision?).

§711.903.How is an appeal affected by a determination that the perpetrator's confirmed act of abuse, neglect, or exploitation may rise to the level of reportable conduct?

(a) An appeal that is described in this subchapter is not affected by a determination that the confirmed act(s) of abuse, neglect, or exploitation may rise to the level of reportable conduct.

(b) The designated perpetrator will not receive notice about his or her [their] right to request an EMR hearing until:

(1) the timeframe for all appeals described in this subchapter have expired;[,] or

(2) until the second appeal is completed and a confirmed finding that rises to the level of reportable conduct is upheld.

§711.905.Who may request an appeal of the investigation?

(a) In order to be a qualified party to request an appeal, you must be:

(1) the administrator of the service provider or their attorney;

(2) the CDS employer or their legal representative;

(3) the reporter;

(4) the victim or alleged victim, or the legal guardian or parent (if the victim or alleged victim is a child); or

(5) Disability Rights Texas, only if Disability Rights Texas represents the victim or alleged victim or is authorized by law to represent the victim or alleged victim.

(b) An alleged or designated perpetrator may not request an appeal even if they are otherwise a qualified party. An alleged or designated perpetrator may not coerce a provider [CDS employer] into requesting an appeal on the alleged perpetrator's [their] behalf.

§711.907.How does a qualified party request an appeal?

(a) To request an appeal, the qualified party must:

(1) complete the required form; [either the DFPS' "Request for Appeal of an APS Provider Investigation" form or "Appeal Addendum," as appropriate to the level of appeal,] and

(2) send the completed form either via email to the email address or via mail to the mailing address designated on the form. [APS_Provider_Appeals@dfps.state.tx.us or via mail to APS Provider Appeals, Adult Protective Services Division, Department of Family and Protective Services, P.O. Box 149030, E-561, Austin, Texas, 78714-9030.]

(b) The victim, alleged victim, legal guardian, parent (if the victim or alleged victim is a child), and reporter may request an appeal by calling the designated phone number [DFPS toll-free at 1-888-778-4766].

§711.909.What is the timeline for requesting an appeal?

(a) To request a first level appeal:

(1) Service providers may request an appeal no later than the 30th calendar day following the date the investigative report was signed and dated by the investigator; and

(2) Reporters, alleged victims, [and] legal guardians, and Disability Rights Texas may request an appeal no later than the 60th calendar day following the date the investigative report was signed and dated by the investigator.[;]

[(3) Disability Rights Texas may request an appeal no later than the 60th calendar day following the date the investigative report was signed and dated by the investigator; and]

[(4) DFPS may accept a request for appeal after the deadline for good cause as determined by DFPS.]

(b) A [To challenge the decision from the first level appeal, a] qualified party has 30 calendar days following the date the first level appeal decision letter is signed to request a second level appeal.

(c) APS Provider Investigations may accept a request for appeal after the deadline for good cause as determined by APS Provider Investigations.

§711.911.How and when is the appeal conducted?

(a) A first level appeal is conducted by the Director of Provider Investigations or his or her [their] designee, or a reviewer designated by the Director or Provider Investigations [Assistant Commissioner of APS], who:

(1) analyzes the investigative report and the methodology used to conduct the investigation and makes a decision to sustain, alter, or reverse the original finding;

(2) completes the review within 14 calendar days after receipt of the complete appeal request; and

(3) notifies the appeal requestor of the appeal decision; and

(4) as appropriate, notifies the service provider, victim, and/or reporter if the finding changed.

(b) A second level [secondary] appeal is conducted by a reviewer designated by the Director of Provider Investigations [Assistant Commissioner of APS], who:

(1) analyzes the investigative report and makes a decision to sustain, alter, or reverse the original finding;

(2) completes the review within 14 calendar days after receipt of the request; and

(3) notifies the appeal requestor of the appeal decision; and

(4) as appropriate, notifies the service provider, victim, and/or reporter if the finding changed.

§711.913.What if the administrator of a state-operated facility disagrees with the second level [secondary] appeal decision?

If the administrator of a state-operated facility disagrees with the second level [secondary] appeal decision, as referenced in §711.911(b) of this chapter (relating to How and when is the appeal conducted?), then the administrator [they] may contest the decision in accordance with 25 TAC §417.510(g)(2) (relating to Completion of the Investigation) and 40 TAC §3.305(b) (relating to Completion of an Investigation).

§711.915.Is a finding ever changed without an appeal?

Provider Investigations [DFPS], in its sole discretion, may designate a person to conduct a review of the investigation records or reopen an investigation to collect additional evidence. If a review of the records and any additional investigation [investigating] results in a change of the finding, the reviewer or his or her designee [DFPS] will notify the appropriate parties in writing.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704767

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 339-5920