TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 711. INVESTIGATIONS OF INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), proposes amendments to §§711.3, 711.5, 711.11, 711.13, 711.23, 711.413, 711.415, 711.417, and 711.419; the repeal of §711.401; and new §711.401 and §711.402 in Chapter 711, concerning Investigations of Individuals Receiving Services From Certain Providers.

BACKGROUND AND PURPOSE

The purpose of the amendments, repeal, and new sections are intended to address specific challenges created by the expanded scope and jurisdiction of Adult Protective Services (APS) while incorporating stakeholder input.

Senate Bills 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 received additional funding for staff to manage the increased intakes. However, the increase in intakes has far exceeded projections. APS PI intakes increased 73% from FY 15 to FY 16, but completed investigations increased by only 5%. Despite the initial additional staff, the number of intakes has exceeded staff capacity; cases have backlogged; and cases have taken longer to complete.

SECTION-BY-SECTION SUMMARY

The proposed amendment of §711.3 adds a definition for allegation type to terms. This definition was added to so the term could be used elsewhere in rule to aid with clear and concise rule drafting.

The proposed amendment of §711.5 amends the language to incorporate the term "allegation type" into this section.

The proposed amendment of §711.11 adds seclusion to the definition of physical abuse and makes an additional TAC reference to 40 TAC 45, Subchapter H (Additional DSA Requirements). At the request of stakeholder input, seclusion and an additional TAC reference was added to the definition of physical abuse.

The proposed amendment of §711.13 removes limiting language from the definition of sexual abuse. As a result of stakeholder input, this amendment removes the word "paid" from direct provider in subchapter (b) of the definition of sexual abuse. This changes the meaning of the definition to include unpaid providers such as volunteers or interns.

The proposed amendment of §711.23 adds a correlating TAC reference to mirror the addition to physical abuse definition in §711.11. The addition of this TAC reference is to ensure the complete definition of physical abuse is reflected in this rule relating to what is not considered abuse, neglect, or exploitation.

The repeal of §711.401 allows for the creation of §711.402 and the division notification requirements between new §711.401 and §711.402.

Proposed new §711.401 describes the requirements for notification to law enforcement and the OIG when the investigator receives an intake and when the identity of the reporter is revealed. The new rule allows for more comprehensive requirements for notification to law enforcement and the OIG. Subsection (a) provides instructions for notification to the OIG that are in compliance with the Memorandum of Understanding between DFPS and the OIG. Subsection (b) and (c) outline new requirements for notification to law enforcement that allow the investigator to submit a more thorough report to law enforcement agencies when a crime is suspected. The rule states that the identity of the reporter is revealed in notifications to both law enforcement and OIG. APS reached out to law enforcement during the rules process. Law enforcement supports the proposed new rule which extends notification timeframes in certain circumstances.

Proposed new §711.402 describes the requirements for notification to provider agencies and Health and Human Services (HHS) agencies when the investigator receives an intake.

The proposed amendment of §711.413 describes how investigations are prioritized when Statewide Intake receives an intake for APS Provider Investigations. The amended language describes when the allegation of exploitation can be classified as a Priority III. New language also describes when a more urgent priority takes precedence.

The proposed amendment of §711.415 describes the requirements for conducting a face-to-face contact with the victim. New language specifies exceptions, requirements and time frames. This amendment was made as a result of increased intakes resulting from APS's expanded scope and jurisdiction.

The proposed amendment of §711.417 describes the time frame requirements for completing an investigation. No changes were made to language related to investigation time frames in a SSLC, the ICF component of the Rio Grande State Center, or state hospitals. However, language was added to increase investigation time frames to 30 days in all other settings. This amendment was made as a result of the workload increase resulting from APS's expanded scope and jurisdiction.

The proposed amendment of §711.419 amends language to allow the program administrator to appoint a designee to approve an extension. This amendment was made as a result of the workload increase resulting from APS's expanded scope and jurisdiction.

FISCAL NOTE

Lisa Subia, Chief Financial Officer of DFPS, has determined that for each year of the first five years that the section(s) will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the section(s) as proposed.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Subia has also determined that there will be no adverse impact on small businesses or micro-businesses required to comply with the section(s) 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 section(s) as proposed. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

Ms. Subia, has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the proposed rules. The anticipated benefit will be better quality reports to law enforcement by APS, increased focus on serious allegation investigations, and a more thorough investigation of abuse, neglect, and exploitation for individuals receiving services from certain providers in certain circumstances.

TAKINGS IMPACT ASSESSMENT

Ms. Subia has determined that the proposed amendments, repeal and new sections do 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, do not constitute a taking under §2007.043, Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Michael Roberts, APS Policy Manager, 701 W 51st St, Austin, TX 78751; by fax to (512) 339-5870, 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 40R028 in the subject line.

SUBCHAPTER A. INTRODUCTION

40 TAC §§711.3, 711.5, 711.11, 711.13, 711.23

STATUTORY AUTHORITY

These amended rules are proposed under 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, including the Department of Family and Protective Services.

The proposed amended rules implement HRC §42.042.

§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) - (4) (No change.)

(5) Allegation type--The type of allegation investigated under this chapter. APS investigates the following allegation types:

(A) physical abuse;

(B) sexual abuse;

(C) verbal/emotional abuse;

(D) neglect; and

(E) exploitation.

(6) [(5)] Alleged perpetrator-- A direct provider alleged to have committed an act of abuse, neglect, or exploitation.

(7) [(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.

(8) [(7)] Clinical practice--Relates to the demonstration of professional competence of a licensed professional as described by the appropriate licensing professional board.

(9) [(8)] Community center--A community mental health center; community center for individuals with intellectual or developmental disabilities; or community mental health center and community center for individuals with intellectual or developmental disabilities, established under the Health and Safety Code, Title 7, Chapter 534, Subchapter A.

(10) [(9)] Consumer Directed Services (CDS) employer--A consumer directed services client or their legally authorized representative.

(11) [(10)] DADS--Department of Aging and Disability Services.

(12) [(11)] DFPS--Department of Family and Protective Services.

(13) [(12)] DSHS--Department of State Health Services.

(14) [(13)] Designated Perpetrator--A direct provider who has committed an act of abuse, neglect, or exploitation.

(15) [(14)] Direct Provider--A person, employee, agent, contractor, or subcontractor of a service provider responsible for providing services to an individual receiving services.

(16) [(15)] Emergency order for protective services--A court order for protective services obtained under Human Resources Code, §48.208.

(17) [(16)] Facility--

(A) DADS and DSHS central offices, state supported living centers, state hospitals, the Rio Grande State Center, the Waco Center for Youth, the El Paso Psychiatric Center, and community services operated by DADS or DSHS;

(B) A person contracting with a health and human services agency to provide inpatient mental health services; and

(C) Intermediate care facilities for individuals with an intellectual disability or related conditions (ICF-IID) licensed under Chapter 252, Health and Safety Code.

(18) [(17)] HHSC--Health and Human Services Commission.

(19) [(18)] Home and community-based services--Have the meaning given to them in Human Resources Code §48.251(a)(5) as services provided in the home or community in accordance with 42 U.S.C. §1315, 42 U.S.C. §1315a, 42 U.S.C. §1396a, or 42 U.S.C. §1396n.

(20) [(19)] Home and community-based services (HCS) waiver program--The Medicaid program authorized under §1915(c) of the federal Social Security Act (42 U.S.C. §1396n(c)) for the provision of services to persons with an intellectual or developmental disability described by §534.001(11)(B), Government Code.

(21) [(20)] Home and community support services agency (HCSSA)--An agency licensed under Chapter 142, Health and Safety Code.

(22) [(21)] ICF-IID--A licensed intermediate care facility for individuals with an intellectual disability or related conditions as described in Chapter 252, Health and Safety Code.

(23) [(22)] Incitement--To spur to action or instigate into activity, the term implies responsibility for initiating another's actions.

(24) [(23)] Individual receiving services--

(A) An adult or child who receives services from a provider as that term is defined in §48.251(a)(9), Human Resources Code.

(B) An adult or child who lives in a residence that is owned, operated, or controlled by an HCS waiver program provider regardless of whether the individual is receiving HCS waiver program services; or

(C) A child receiving services from a HCSSA.

(25) [(24)] Investigator--An employee 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.

(26) [(25)] Limited Service Provider--An entity that contracts with a service provider to provide services.

(27) [(26)] Local authority--Either:

(A) a local mental health authority designated by the HHSC executive commissioner in accordance with §533.035, Health and Safety Code, and as defined by §531.002, Health and Safety Code; or

(B) a local intellectual and developmental disability authority designated by the HHSC executive commissioner in accordance with §533A.035, Health and Safety Code, and as defined by §531.002, Health and Safety Code.

(28) [(27)] Non-serious physical injury--

(A) In state supported living centers and state hospitals only, any injury requiring minor first aid and determined not to be serious by a registered nurse, advanced practice registered nurse (APRN), or physician.

(B) For all other service providers any injury determined not to be serious by the appropriate medical personnel. Examples of non-serious physical injury include:

(i) superficial laceration;

(ii) contusion two and one-half inches in diameter or smaller; or

(iii) abrasion.

(29) [(28)] Perpetrator--A direct provider who has committed or alleged to have committed an act of abuse, neglect, or exploitation.

(30) [(29)] Preponderance of evidence--Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.

(31) [(30)] Prevention and management of aggressive behavior (PMAB)--DADS and DSHS' 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.

(32) [(31)] Provider--A provider is:

(A) a facility;

(B) a community center, local mental health authority, and local intellectual and developmental disability authority;

(C) a person who contracts with a health and human services agency or managed care organization to provide home and community-based services;

(D) a person who contracts with a Medicaid managed care organization to provide behavioral health services;

(E) a managed care organization;

(F) an officer, employee, agent, contractor, or subcontractor of a person or entity listed in subparagraphs (A)-(E) of this paragraph; and

(G) an employee, fiscal agent, case manager, or service coordinator of an individual employer participating in the consumer-directed service option, as defined by §531.051, Government Code.

(33) [(32)] Reporter--The person, who may be anonymous, making an allegation.

(34) [(33)] Serious physical injury--

(A) In state supported living centers and state hospitals only, any injury requiring medical intervention or hospitalization or any injury determined to be serious by a physician or APRN. Medical intervention is treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician assistant, or APRN. For the purposes of this subchapter, medical intervention does not include first aid, an examination, diagnostics (e.g., x-ray, blood test), or the prescribing of oral or topical medication;

(B) For all other service providers, any injury determined to be serious by the appropriate medical personnel. Examples of serious physical injury include:

(i) fracture;

(ii) dislocation of any joint;

(iii) internal injury;

(iv) contusion larger than two and one-half inches in diameter;

(v) concussion;

(vi) second or third degree burn; or

(vii) any laceration requiring sutures or wound closure.

(35) [(34)] Service Provider--A provider, HCSSA, or HCS waiver program provider responsible for employing, contracting with, or supervising the direct provider.

(36) [(35)] Sexually transmitted disease--Any infection with or without symptoms or clinical manifestations that can be transmitted from one person to another by sexual contact.

(37) [(36)] Texas Home Living (TxHmL) waiver program--The Medicaid program authorized under §1915(c) of the federal Social Security Act (42 U.S.C. §1396n(c)) for the provision of services to persons with an intellectual or developmental disability described by §534.001(11)(D), Government Code.

(38) [(37)] Victim--An individual receiving services 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 a direct provider, or is unknown, and the alleged victim is an individual receiving services, APS investigates the following allegation types [allegations of]:

(1) - (5) (No change.)

(b) (No change.)

§711.11.How is physical abuse defined?

In this chapter, when the alleged perpetrator is a direct provider, physical abuse is defined as:

(1) - (2) (No change.)

(3) the use of chemical or bodily restraints or seclusion on an individual receiving services not in compliance with federal and state laws and regulations, including:

(A) - (H) (No change.)

(I) 40 TAC Chapter 42, Subchapter D (relating to Additional Program Provider Provisions); [and]

(J) 1 TAC Chapter 353, Subchapter C (relating to Member Bill of Rights); and[.]

(K) 40 TAC Chapter 45, Subchapter H (relating to Additional DSA Requirements).

§711.13.How is sexual abuse defined?

(a) (No change.)

(b) Notwithstanding any other provision in this section, consensual sexual activity between a direct provider and an adult receiving services is not considered sexual abuse if the consensual sexual relationship began prior to the direct provider becoming a [paid] direct provider.

§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) - (H) (No change.)

(I) 40 TAC Chapter 42, Subchapter D (relating to Additional Program Provider Provisions); [and]

(J) 1 TAC Chapter 353, Subchapter C (Member Bill of Rights); and

(K) 40 TAC Chapter 45, Subchapter H (relating to Additional DSA Requirements).

(2) - (3) (No change.)

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 July 10, 2017.

TRD-201702578

Audrey Carmical

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 339-5870


SUBCHAPTER E. CONDUCTING THE INVESTIGATION

40 TAC §711.401

The repeal is proposed under 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, including the Department of Family and Protective Services.

§711.401.Who and when does the Investigator notify for allegations of abuse, neglect, or exploitation and when is the identity of the reporter revealed?

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 July 10, 2017.

TRD-201702579

Audrey Carmical

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 339-5870


40 TAC §§711.401, 711.402, 711.413, 711.415, 711.417, 711.419

The new sections and amendments are proposed under 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, including the Department of Family and Protective Services.

§711.401.When does the Investigator notify law enforcement and OIG for allegations of abuse, neglect, or exploitation and when is the identity of the reporter revealed?

(a) When the provider is a state supported living center, state hospital, or the ICF-IID component of the Rio Grande State Center, the investigator makes the following notifications:

(1) the investigator notifies law enforcement within one (1) hour of any allegation of abuse, neglect, or exploitation involving a child.

(2) the investigator notifies law enforcement within one (1) hour of any allegation of abuse, neglect, or exploitation involving an adult believed to constitute a criminal offense under any law.

(3) the investigator notifies OIG within one (1) hour of any allegation of abuse, neglect, or exploitation involving an individual receiving services believed to constitute a criminal offense under any law.

(b) For all other providers, the investigator notifies law enforcement within 24 hours of any allegation of abuse, neglect, or exploitation involving:

(1) a child.

(2) an adult believed to constitute a criminal offense under any law.

(c) As provided in subsection (b) of this section, the investigator notifies law enforcement:

(1) unless the law enforcement agency reported the alleged abuse, neglect, or exploitation to the department; and

(2) using a method that is mutually agreed upon between DFPS and the law enforcement agency.

(d) For all notifications described in this section, the identity of the reporter is revealed.

§711.402.What provider and Health and Human Services agency does the Investigator notify for allegations of abuse, neglect, or exploitation and when is the identity of the reporter revealed?

(a) For all allegations of abuse, neglect, or exploitation of an individual receiving services, the investigator makes the following notifications, as appropriate:

Figure: 40 TAC §711.402(a)

(b) For these notifications, described in subsection (a) of this section, the identity of the reporter is revealed only if the alleged perpetrator is a mental health service provider and the allegation is sexual exploitation in accordance with Chapter 81, Texas Civil Practice and Remedies Code.

§711.413.How are investigations prioritized?

Each investigation is assigned a priority in accordance with the following:

(1) Priority I reports have a serious risk that a delay in investigation will impede the collection of evidence, or allege that the victim has been subjected to abuse, neglect, or exploitation [maltreatment] by act or omission that caused or may have caused serious physical or emotional harm. Priority 1 reports include, but are not limited to, the following:

(A) - (E) (No change.)

(2) Priority II reports have some risk that a delay in investigation will impede the collection of evidence, or allege that the victim has been subjected to abuse, neglect, or exploitation [maltreatment] by act or omission that caused or may have caused non-serious physical injury, or emotional harm not included in Priority I. Priority II reports include, but are not limited to, the following:

(A) Non-serious physical injury; or

(B) Verbal/emotional abuse, such as name-calling, cursing, degrading, or vilifying remarks.[; or]

[(C) Exploitation.]

(3) Priority III reports allege:

(A) Abuse, neglect, or exploitation [maltreatment] that would otherwise be classified as Priority I or II but the alleged incident occurred more than 30 days prior to the date of the report; or[. Allegations of maltreatment in state supported living centers (SSLC) cannot be classified as Priority III. Allegations occurring in an SSLC must be Priority I or II.]

(B) Exploitation, when it is the only allegation type in the report.

(4) The following allegations cannot be classified as a Priority III:

(A) Allegations of abuse, neglect, or exploitation in state supported living centers and the ICF-IID component of the Rio Grande State Center; and

(B) Allegations involving children.

(5) If another allegation type occurs in conjunction with exploitation, the report is classified as the more urgent priority.

§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:

(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 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 [The] investigator makes [must make] a face-to-face contact with the alleged victim within the following time frames:

Figure: 40 TAC §711.415(c)

[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) within 10 calendar days of the allegation by DFPS if [If] the investigation is in a state supported living center or the ICF-IID component of the Rio Grande State Center. [and the priority is I or II the investigator must complete the investigation within 10 calendar days of receipt of the allegation by DFPS.]

(2) within 14 calendar days of receipt of the allegation by DFPS if the investigation is in a state hospital and is a Priority I or II.

(3) within 21 calendar days of receipt of the allegation by DFPS if the investigation is in a state hospital and is a Priority III.

(4) within 30 calendar days of receipt of the allegation by DFPS for all other investigations.

[(2) Except for investigations in paragraph (1) of this section, all other investigations under this chapter with a priority of:]

[(A) I or II, the investigator must complete the investigation within 14 calendar days of receipt of the allegation by DFPS.]

[(B) III, the investigator must complete the investigation within 21 calendar days of receipt of the allegation by DFPS.]

(b) [(3)] For investigations conducted under subsection (a)(4) [paragraph (2)] of this section, 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 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) (No change.)

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 July 10, 2017.

TRD-201702580

Audrey Carmical

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 339-5870