Revision 21-1; Effective April 26, 2021

To investigate abuse, neglect, and exploitation of individuals receiving services from certain providers. PI operates under the authority of the:

• Texas Human Resources Code, Chapter 48
• Texas Family Code, Chapter 261
• Texas Administrative Code, Title 26, Chapter 711

The rules or laws cited in this handbook are provided for reference purposes only and are not intended to be a duplication of the rules cited, and are not intended to be relied upon in place of the cited rules. Please refer to the actual rules cited by going to the Texas Administrative Code or the referenced law.

Revision 21-1; Effective April 26, 2021

The following words and terms, when used in this handbook, have the following meanings unless the context clearly indicates otherwise.

A

Administrator: The person in charge of a provider or that person's designee. The term does not apply to the assistant commissioner of state supported living centers or the assistant commissioner for mental health substance abuse services.

Adult: A person 18 years of age or older, or a person under 18 years of age who is or has been married or who has had the disabilities of minority removed for general purposes.

Agency: State agencies including the Texas Department of Family and Protective Services, the Texas Department of State Health Services, and the Texas Health and Human Services Commission.

Agent: A person not employed by but working under the auspices of a service provider or contractor. For example, a student or volunteer.

Allegation: A report by someone that an individual receiving services has been or is being abused, neglected, or exploited.

Allegation type: The type of allegation investigated under 26 TAC Chapter 711. The Provider Investigation program investigates the following allegation types:

• exploitation;
• neglect;
• physical abuse;
• sexual abuse; and
• verbal or emotional abuse.

Alleged Perpetrator: A person alleged to have abused, neglected, or exploited an individual receiving services.

Alleged Victim: An individual receiving services who is alleged to have been abused, neglected, or exploited.

B

Behavioral health services:

• services related to research, prevention, and detection of mental disorders and disabilities;
• services necessary to treat, care for, control, supervise, and rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities result from a substance abuse disorder, alcoholism, or drug addiction; and
• interventions to treat:
  • abuse of alcohol or a controlled substance;
  • psychological or physical dependence on alcohol or a controlled substance; or
  • addiction to alcohol or a controlled substance.

C

Child: A person under 18 years of age who has not been married and has not had the disabilities of minority removed for general purposes.

Child Care Licensing: A division of HHSC that licenses and regulates 24-hour child care programs, including residential treatment centers and emergency shelters.

Children's Advocacy Centers: Centers located throughout Texas designated to provide specialized forensic interviews conducted by trained, neutral professionals using research and practice-informed techniques as part of a larger investigative process. The services of the CACs are intended to minimize the need for multiple interviews by community agencies involved in serving victims of abuse.

Clinical practice: A licensed professional's demonstration of professional competence, as described by the licensing professional board.

Collateral witness: Any person who can provide either direct or circumstantial information about the alleged incident who is not either the alleged victim or alleged perpetrator.

Community center: Serves people with mental health or intellectual disabilities and is established under the Texas Health and Safety Code Chapter 534, Subchapter A. Texas community centers are units of local government, sponsored by counties, cities, hospital districts and school districts. A publicly appointed board of trustees governs each center comprised of local leaders that represent the diversity and best interests of communities, families, and persons receiving services.

Community provider: Excluding HCS and TxHmL waiver program providers, a community provider includes the following:

• a person who contracts with a health and human services agency or managed care organization to provide home and community-based services;
• a person who contracts with a Medicaid managed care organization to provide behavioral health services;
• a managed care organization;
• an officer, employee, agent, contractor, or subcontractor of a person or entity listed in the bullets above; and
• an employee, fiscal agent, case manager, or service coordinator of an individual employer participating in the consumer directed service option, as defined by Texas Government Code §531.051(a)(3).

Confirmed: Term used to describe an allegation in which a preponderance of credible evidence exists to support that abuse, neglect, or exploitation occurred.

Consumer Directed Services: A service delivery option in which a person receiving services or legally authorized representative employs and retains service providers and directs the delivery of program services.

Contractor: Any organization, entity, or person who contracts with a provider to provide services directly to a person with physical, mental or intellectual disabilities. The term includes:

• a day habilitation provider;
• a foster care provider; and
• a local independent school district with which a facility, local authority, or community center has a memorandum of understanding for educational services.

Contractor CEO: The person in charge of a contractor that has one or more employees, excluding the CEO. The term includes the CEO of a day habilitation.

D

Designated Perpetrator: A direct provider determined by PI in a confirmed finding to have abused, neglected, or exploited a person receiving services.

DFPS: Texas Department of Family and Protective Services.

Direct provider: The person, employee, agent, contractor, or subcontractor responsible for providing services to the individual receiving services.

DSHS: Texas Department of State Health Services.

DSHS Consumer Services and Rights Protections: The unit at DSHS central office that protects the rights of people receiving services.

E

Exploitation: When the alleged perpetrator is a direct provider to a person receiving services, exploitation is defined as the illegal or improper act or process of using a person receiving services or the resources of a person receiving services for monetary or personal benefit, profit or gain, and excludes:

• theft as defined in the Texas Penal Code Chapter 31;
• allegations less than $25; and
• a loan, which includes money or property given to someone to use for a period of time with an understanding that it will be paid back or returned, made by a person receiving services to a direct provider of a community provider.

See examples of exploitation allegations in Section 2150.

See related 26 TAC §711.21.

F

Facility: This term refers to any of the following:

• HHSC central offices, state supported living centers, state hospitals, the Rio Grande State Center, the Waco Center for Youth and the El Paso Psychiatric Center, including community services operated by Health and Specialty Care System.
• A person contracting with a health and human services agency to provide inpatient mental health services.
• Intermediate care facilities for people with an intellectual disability or related conditions licensed under the Texas Health and Safety Code Chapter 252.

Financial Management Services Agency: An agency contracting with HHSC or an MCO that provides financial management services for an employer who participates in the CDS option.

See related 40 TAC §49.102.

Forensic Assessment Center Network: A coordinated group of geriatricians, pediatricians, and other medical professionals in Texas who are experts in identifying abuse and neglect. The FACN is a joint project between DFPS and the University of Texas Health Science Center–Houston that provides medical expertise for PI investigators.

H

HHSC: Texas Health and Human Services Commission.

HHSC Office of Complaints and Incident Intake: A program within the HHSC Regulatory Services Division that protects the rights of people receiving services.

HHSC Provider Investigator: An employee of the Texas Health and Human Services Commission who:

• investigates allegations of abuse, neglect, and exploitation according to HRC Chapter 48, Subchapter F and Texas Family Code Chapter 261;
• has expertise and demonstrated competence in conducting investigations; and
• has received training on techniques for communicating effectively with individuals with a disability.

Home and community-based services: 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.

See related HRC §48.251(a)(5).

Home and Community-Based Services – Adult Mental Health Program: A program authorized under §1915(i) of the Social Security Act (42 U.S.C. §1396n) that provides HCBS to Medicaid and non-Medicaid people with serious mental illness who have extended tenure in state mental health facilities.

Home and Community-Based Services Waiver Program: 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 Texas Government Code §534.001(11)(B) and Title 40 TAC, Chapter 9, Subchapter D.

Home and Community Support Services Agency: A person, which includes an individual, corporation, or association, licensed under the Texas Health and Safety Code Chapter 142, to provide home health, hospice, habilitation, or personal assistance services for pay or other consideration in a client's residence, an independent living environment or another appropriate location.

I

ICF/IID: A licensed intermediate care facility for people with an intellectual disability or related conditions, as described in Texas Health and Safety Code, Chapter 252.

Incitement: To spur to action or instigate into activity. This term implies responsibility for initiating another person's actions.

Inconclusive: Term used to describe that there is not a preponderance of credible evidence to indicate that abuse, neglect, or exploitation did or did not occur due to lack of witnesses or other available evidence.

Individual or person receiving services: This term refers to:

• an adult or child who receives services from a provider, as that term is defined below;
• 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
• a child receiving services from an HCSSA, as that term is defined above.

L

Limited service provider: The company or person that provides only certain services meaning a specialty provider. An MCO, HCSSA, HCS, or TxHmL provider may contract with an LSP to provide certain services to a person receiving services.

Local Authority: This term refers to either a local mental health authority, local behavioral authority, or a local intellectual and developmental disability authority.

Local Behavioral Health Authority: Local behavioral health authorities provide services to a specific geographic area of the state, called the local service area. HHSC requires each authority to plan, develop policy, coordinate, and allocate and develop resources for mental health and chemical dependency services in the local service area. A LBHA may be designated by DSHS, in accordance with Texas Health and Safety Code §533.0356, and has all the responsibilities and duties of a local mental health authority, as provided by Texas Health and Safety Code §533.035. A LMHA may apply for designation as a LBHA, in accordance with Texas Health and Safety Code §533.0356(d).

Local Intellectual and Developmental Disability Authority: Designated by the HHSC executive commissioner in accordance with Texas Health and Safety Code §533A.035 and as defined by Texas Health and Safety Code §531.002(12). Local intellectual and developmental disability authorities serve as the point of entry for publicly funded intellectual and developmental disability programs, whether the program is provided by a public or private entity. They:

• provide or contract to provide an array of services and supports for persons with intellectual and developmental disabilities;
• are responsible for enrolling eligible people into the following Medicaid programs:
  • ICF/IID, which includes state supported living centers;
  • Home and Community-based Services (HCS);
  • Texas Home Living (TxHmL); and
• are responsible for Permanency Planning for persons receiving services under 22 years of age who live in an ICF/IID, state supported living center or a residential setting of the HCS Program.

For more information about LIDDAs, please see LIDDA Statutes and Rules.

Local Mental Health Authority: Designated by the HHSC executive commissioner in accordance with §533.035, Texas Health and Safety Code and as defined by §531.002(13), Texas Health and Safety Code. Local mental health authorities provide services to a specific geographic area of the state, called the local service area. HHSC requires each authority to plan, develop policy, coordinate, and allocate and develop resources for mental health services in the local service area.

M

Managed Care Organization: A health care provider or a group or organization of medical service providers who offers managed care health plans. Texas Medicaid uses managed care to provide health care services to most clients.

Medical intervention or treatment: Intervention or treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician's assistant or advanced practice nurse. Medical intervention or treatment does not include first aid, an examination, diagnostics (such as an x-ray or blood test), or the prescribing of oral or topical medication.

Mental health services provider: A person, licensed or unlicensed, who performs or claims to perform mental health services, including a:

• licensed social worker, as defined by Texas Occupations Code §505.002;
• chemical dependency counselor, as defined by Texas Occupations Code §504.001;
• licensed professional counselor, as defined by Texas Occupations Code §503.002;
• licensed marriage and family therapist, as defined by Texas Occupations Code §502.002;
• member of the clergy;
• physician who is practicing medicine, as defined by Texas Occupations Code §151.002;
• psychologist offering psychological services, as defined by Texas Occupations Code §501.003, and
• special officer for mental health assignment certified under Texas Occupations Code §1701.404.

See related Texas Civil Practice and Remedies Code, §81.001.

N

Neglect: When the alleged perpetrator is a direct provider to a person receiving services in or from a facility, local authority, community center, or HCS 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 a person receiving services or which placed a person receiving services at risk of physical or emotional injury or death.

Examples of neglect, if such failure results in physical or emotional injury or death to a person receiving services or which placed a person receiving services at risk of physical or emotional injury or death include, but are not limited to, the failure to:

• establish or carry out an appropriate individual program plan or treatment plan for a specific person receiving services;
• provide adequate nutrition, clothing, or health care to a specific person receiving services in a residential or inpatient program; or
• provide a safe environment for a specific person receiving services, including the failure to maintain adequate numbers of appropriately trained staff.

When the alleged perpetrator is a direct provider to a person receiving services from a community provider, neglect is defined as a negligent act or omission which caused physical or emotional injury or death to a person receiving services.

See examples of neglect allegations in Section 2140.

See related 26 TAC §711.19.

Non-serious physical injury:

• In state supported living centers and state hospitals — Any injury requiring minor first aid and determined not to be serious by a registered nurse, advanced practice nurse, or physician.
• For all other service providers — Any injury determined not to be serious by the appropriate medical personnel. Examples of a non-serious physical injury may include:
  • a superficial laceration;
  • a contusion two and one-half inches in diameter or smaller; or
  • an abrasion.

Non-serious verbal or emotional abuse: Direct provider has used derogatory language that may be demoralizing or humiliating to the alleged victim.

P

Peer or Professional Review: A review of clinical and professional practices by peer professionals.

Physical abuse: When the alleged perpetrator is a direct provider, physical abuse is defined as:

• an act, or failure to act, performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to a person receiving services;
• an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to a person receiving services; or
• the use of chemical or bodily restraints or seclusion on a person receiving services not in compliance with federal and state laws and regulations, including:
• 25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Services)
• 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);
• 40 TAC Chapter 3, Subchapter F (relating to Restraints);
• 26 TAC Chapter 551, Subchapter C (relating to Standards for Licensure);
• 40 TAC Chapter 2, Subchapter G (relating to Role and Responsibilities of a Local Authority);
• 40 TAC Chapter 9, Subchapter D (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC));
• 40 TAC Chapter 9, Subchapter N (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC));
• 26 TAC Chapter 558, Subchapter H (relating to Standards Specific to Agencies Licensed to Provide Hospice Services);
• 40 TAC Chapter 42, Subchapter D (relating to Additional Program Provider Provisions);
• 1 TAC Chapter 353, Subchapter C (Member Bill of Rights and Responsibilities); and
• 40 TAC Chapter 45, Subchapter H (relating to Additional DSA Requirements).

See examples of physical abuse allegations in Section 2110.

See related 26 TAC §711.11.

Physical force: Pressure applied to a person's body.

Preponderance of evidence: The greater weight of evidence, or evidence more credible and convincing to the mind.

Provider: This term includes:

• a facility;
• a community center, local authority;
• a person who contracts with a health and human services agency or managed care organization to provide home and community-based services;
• a person who contracts with a Medicaid managed care organization to provide behavioral health services;
• a managed care organization;
• an officer, employee, agent, contractor, or subcontractor of a person or entity listed above; and
• an employee, fiscal agent, case manager, or service coordinator of a person employer participating in the Consumer Directed Service option, as defined by Texas Government Code §531.051.

See related HRC §48.251(a)(9).

R

Reasonable person: A hypothetical person who exercises average care, skill and judgment.

Reporter: The person who makes an allegation. The reporter may be anonymous.

S

Serious physical injury:

• In state supported living centers and state hospitals — Any injury requiring medical intervention or hospitalization or determined to be serious by a physician or advanced practice nurse. Medical intervention is treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician assistant, or advanced practice nurse. Medical intervention does not include first aid, an examination, diagnostics (such as an x-ray or blood test), or the prescribing of oral or topical medication.
• For all other service providers — Any injury determined to be serious by the appropriate medical personnel who examined the person. Examples of serious physical injuries include:
  • a fracture;
  • a dislocation of any joint;
  • an internal injury;
  • a contusion larger than two and one-half inches in diameter;
  • a concussion;
  • a second or third-degree burn; or
  • any laceration requiring sutures.

Serious verbal or emotional abuse: Serious threats by a direct provider to harm or kill an alleged victim.

Service provider: The provider that employs, contracts with, or supervises the direct provider of services to a person receiving services.

Sexually transmitted infection: Any infection with or without symptoms or clinical manifestations that can be transmitted from one person to another by sexual contact. Also referred to as sexually transmitted disease.

Sexual abuse: When the alleged perpetrator is a direct provider, sexual abuse is defined as:

• any sexual activity, including:
  • kissing a person receiving services with sexual intent;
  • hugging a person receiving services with sexual intent;
  • stroking a person receiving services with sexual intent;
  • fondling a person receiving services with sexual intent;
• engaging in sexual conduct as defined in the Texas Penal Code, §43.01 or any activity that is obscene as defined in the Texas Penal Code, §43.21;
• requesting, soliciting, or compelling a person receiving services to engage in:
  • sexual conduct as defined in the Texas Penal Code, §43.01, or
  • any activity that is obscene as defined in the Texas Penal Code, §43.21;
• while in the presence of a person receiving services:
  • engaging in or displaying any activity that is obscene, as defined in the Texas Penal Code §43.21, or
  • requesting, soliciting, or compelling another person to engage in any activity that is obscene, as defined in the Texas Penal Code §43.21;
• committing sexual exploitation as defined in 26 TAC §711.13, against a person receiving services;
• committing sexual assault as defined in the Texas Penal Code §22.011, against a person receiving services;
• committing aggravated sexual assault as defined in the Texas Penal Code, §22.021, against a person receiving services; and
• causing, permitting, encouraging, engaging in, or allowing the photographing, filming, videotaping, or depicting of a person receiving services if the direct provider knew or should have known that the resulting photograph, film, videotape, or depiction of the person receiving services is obscene as defined in the Texas Penal Code, §43.21, or is pornographic.

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 direct provider.

See examples of sexual abuse allegations in Section 2120.

See related 26 TAC §711.13.

Significant impairment: When a person experiences a negative physical, emotional, or mental effect or decline in their social, occupational, or other areas of daily functioning, such as independence, self-care, or activities of daily living, as determined through observation, diagnosis, evaluation or assessment.

State hospitals: State hospitals provide patient-focused, inpatient psychiatric services for people of all ages. Additional information can be found on the HHS website.

State Supported Living Center: State supported living centers provide campus-based direct services and support to people with intellectual and developmental disabilities. Additional information can be found on the HHS website.

T

Texas Administrative Code: The Texas Administrative Code is a compilation of state agency rules in Texas.

Texas Home Living Waiver Program: Medicaid waiver program authorized for the provision of community-based services and supports to eligible individuals with an intellectual or developmental disability who live in their own homes or the homes of their families. TxHmL is authorized under §1915(c) of the federal Social Security Act (42 U.S.C. §1396n(c)), Texas Government Code §534.001(11)(D), and 40 TAC Chapter 9, Subchapter N.

U

Unconfirmed: Term used to describe an allegation in which a preponderance of evidence exists to prove that it did not occur.

Unfounded: Term used to describe an allegation that is spurious or patently without factual basis.

V

Verbal or emotional abuse: When the alleged perpetrator is a direct provider, verbal or emotional abuse is the willful infliction of an act or repeated acts of verbal or other communication, including gestures, to harass, intimidate, humiliate, or degrade a person receiving services or threaten them with physical or emotional harm. The act or communication must:

• result in an individual receiving services experiencing:
  • significant impairment to their physical, mental or emotional health; or
  • substantial physical or emotional distress as identified by an appropriate medical professional; or
• be of such a serious nature that a reasonable person would consider it causing significant impairment to the physical, mental, or emotional health of the alleged victim.

See examples of verbal or emotional abuse allegations in Section 2130.

See related 26 TAC 711.17.

Y

Youth Empowerment Services Waiver: A waiver authorized under §1915(c) of the Social Security Act, which prevents or reduces institutionalization of children and adolescents with severe emotional disturbance, enables more flexibility in providing intensive community-based services for children and adolescents with SED, and provides support for their families by improving access to services.

See related 26 TAC §711.3.

Revision 19-1; Effective July 1, 2019

1310 Allegations

Revision 19-1; Effective July 1, 2019

When the alleged perpetrator is a direct provider, or is unknown, Provider Investigations investigates the following allegation types:

• exploitation;
• neglect;
• physical abuse;
• sexual abuse; and
• verbal or emotional abuse.

See definitions in 1200.

PI also investigates:

• the pregnancy of a person receiving services from a facility or facility contractor if there is:
  • medical verification that conception could have occurred while the individual receiving services was a resident of the facility or of a facility contractor; and
  • a reasonable expectation that conception occurred while the individual was a resident of the facility or of a facility contractor;
  • the sexually transmitted disease of a person receiving services from a facility or of a facility contractor, if the individual could have acquired the STD while a resident of the facility or of a facility contractor; and
• an injury of unknown origin, if appropriate medical personnel, after examining the individual receiving services, suspect the injury is the result of abuse or neglect.

See related 26 TAC §711.5.

1320 Providers and Entities

Revision 18-1; Effective September 1, 2018

PI investigates allegations of abuse, neglect, and exploitation involving the following providers:

• state operated facilities;
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF-IDDs);
• HHSC-operated community services;
• a person contracting with an HHS agency to provide inpatient mental health services;
• community centers and local authorities;
• a person who contracts with an HHS agency or MCO to provide Home and community-based services (HCBS);
• a person who contracts with a managed care organization (MCO) to provide behavioral health services (BHS);
• a managed care organization (MCO)
• an officer, employee, agent, contractor, subcontractor of the above; and
• an employee, agent, manager, coordinator of an individual participating in the consumer directed services (CDS) option.

PI investigates allegations of abuse, neglect, and exploitation involving:

• individuals residing in a HCS group home regardless of whether the individual is receiving services under the waiver program from the provider, and
• children receiving services from a HCSSA; and
• independent school districts (ISDs) if the school district is a contractor of the provider.

1330 Cooperating with PI Investigations

Revision 21-1; Effective April 26, 2021

State Supported Living Centers and State Hospitals

The administrator of an SSLC or state hospital designates a staff person to serve as a liaison to PI.

HHSC Health and Specialty Care System rules provide direction to SSLCs and state hospital employees regarding cooperation with a PI investigation.

See related 25 TAC §417.508(c), 40 TAC §3.304(d) and 40 TAC §3.302(d)

Local Authorities and Community Centers

The administrator of a local authority and community center designates a staff person to serve as a liaison to PI.

Administrators and contractor CEOs of local authorities and community centers follow directions outlined in 40 TAC §4.554(h) regarding cooperation with a PI Investigation.

See related 40 TAC §9.178(l) and §9.580(g).

1340 Other State Agencies and Investigative Entities

Revision 21-1; Effective April 26, 2021

PI does not investigate allegations of abuse, neglect, and exploitation if another division of HHSC or another state agency is responsible under state law for the investigation. PI refers these allegations to the administrator of the provider where the incident occurred. In certain circumstances, PI forwards the report to other agencies for investigation. Some agencies and entities PI may forward reports to include:

Texas Department of Family and Protective Services

For information on Texas DFPS investigative authority please refer to the Texas DFPS webpage.

Texas Department of State Health Services

For information, on Texas DSHS investigations, please refer to the DSHS Division for Regulatory Services webpage.

The University of Texas

Except when the private psychiatric center contracts directly with HHSC, PI does not have jurisdiction to investigate allegations from a hospital or psychiatric center operated by The University of Texas. PI refers these allegations to the administrator of the facility where the incident occurred.

Attorney General of Texas

The Office of the Attorney General's (OAG) Medicaid Fraud Control Unit (MFCU) has broad authority to investigate abuse, neglect, and exploitation within Medicaid.

Refer to the OAG Criminal Justice Divisions webpage for information.

Office of Inspector General

• U.S. Department of Health and Human Services Office of Inspector General (HHS OIG)

HHS OIG is the largest inspector general's office in the federal government, with approximately 1,600 employees dedicated to combating fraud, waste, and abuse and to improving efficiency in HHS programs. A majority of HHS OIG's resources goes toward the oversight of Medicare and Medicaid.

Refer to the federal HHS OIG's webpage for more information.

• Texas Health and Human Services Commission Office of Inspector General (HHSC OIG)

PI reports suspected fraud or abuse of Medicare, Medicaid or social services program funding or resources to the Texas Health and Human Services Commission, Office of Inspector General (HHSC-OIG).

Refer to the HHSC OIG's Medicaid Fraud Control Units webpage for more information.

Indian Reservations

An Indian reservation is a legal designation for an area of land managed by a Native American tribe under the US Bureau of Indian Affairs. PI has no authority to conduct an investigation on Indian reservations without permission from reservation officials.

Refer to the United States Department of the Interior Indian Affairs webpage for more information.

Out-of-State Allegations

If the report concerns alleged abuse, neglect, or exploitation of an individual receiving services in another state, the investigator takes sufficient information to notify the appropriate out-of-state agency by telephone or fax.

Refer to the National Center on Elder Abuse webpage for information about out-of-state agencies please.

Revision 18-1; Effective September 1, 2018

According to the federal Civil Rights Act:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The protections cited above also apply to persons with limited English proficiency (LEP) or sensory or speaking impairments.

Ensuring that staff and other stakeholders can understand the information our agency provides is important. Whether someone uses assistive technology, speaks another language or uses sign language to communicate, it is our obligation to meet their needs. HHSC provides communication assistance to persons with LEP or impaired sensory or speaking skills at no cost to the person being interviewed. LEP refers to the language a person uses to communicate; sensory impairments can affect how a person communicates.

See related

Title VI of the Civil Rights Act of 1964,
Executive Order 13166, August 11, 2000 and
Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101 et seq.)

Revision 18-1; Effective September 1, 2018

To investigate effectively, the investigator conducts investigations in a culturally competent manner, adapting their investigative approach to accommodate the interviewee's needs within their cultural context.

Revision 19-1; Effective July 1, 2019

The following sections are examples of allegations and do not represent a specific finding.

2110 Physical Abuse Allegations

Revision 19-1; Effective July 1, 2019

• An employee attempted to apprehend a person receiving services during an unauthorized departure attempt and punched the person in the face, resulting in a fractured jaw.
• A person receiving services was treated for third degree burns to the neck after an employee threw hot coffee on him.
• An employee slapped a person receiving services after the person kicked the employee. The person receiving services had no visible injuries.
• An employee taunted a person receiving services and as a result, the person became angry, hit a peer, and turned over a nearby table.

2120 Sexual Abuse Allegations

Revision 19-1; Effective July 1, 2019

• A person receiving services alleged sexual encounters with an employee during off-grounds excursions, describing in accurate detail the employee’s automobile and the location and interior of the employee’s apartment.
• After a year of residency in a facility, a person receiving services was diagnosed as being pregnant by an unknown father.
• An adult receiving services in the community alleged his direct provider imposed non-consensual sexual activity on him.
• The spouse of a HCS foster care provider is alleged to have sexual relations with a person receiving services. The spouse is deemed an agent because of the accepted responsibility (formally or informally) for providing services.

2130 Verbal or Emotional Abuse Allegations

Revision 19-1; Effective July 1, 2019

• A state supported living center employee told a person receiving services, “You better act right or else.”
• An ICF/IID group home staff member told a person receiving services, “I’m going to kill you man!” during a restraint.
• A HCSSA employee told a person receiving services, “If you call and report this, I’m going to finish you!”
• An HCS group home staff member told a person receiving services, “You are a liar, and that’s why your family doesn’t want you around!” As a direct result, the person threatened self-harm.

While verbal or emotional abuse may be more subjective than physical or sexual abuse, it can indicate a pattern of abuse committed by an alleged perpetrator. An allegation of verbal or emotional abuse may be the precursor for additional allegations of other types of abuse.

2140 Neglect Allegations

Revision 19-1; Effective July 1, 2019

• In a state hospital, a person receiving services who is on one-to-one observation for suicide precautions was left unattended for a short period.
• A person receiving services in a SSLC was unattended in a building for several hours because staff did not arrange transportation for them or check the building before securing it for the evening.
• In an ICF/IID home, a person receiving services was left with feces smeared on him for three hours when monitoring checks should have been conducted every hour.
• A person receiving services living in an HCS group home took the medication of another person living in the same home because staff left the medication cabinet unlocked.
• A person receiving services from a HCSSA attendant for repositioning and transfers, fell and hit his head on the wall during a transfer. Because of the fall, he sustained a three-inch laceration on his head.
• A person receiving services from a HCSSA for Personal Assistance Services was badly burned by hot bathwater.

2150 Exploitation Allegations

Revision 19-1; Effective July 1, 2019

• A staff member traded a pack of cigarettes for a $75.00 pair of boots from a person receiving services.
• A person receiving services was coerced to shine a staff member’s boots without compensation.
• A person receiving services handed her debit card to her provider, so the provider could grocery shop for her.  While at the store, the provider used the person’s debit card to purchase items for herself and her children without the person’s knowledge. 
• A provider takes a person receiving services to the bank. While there, the provider has the person write a check, payable to cash from the person’s bank account for $580.00. The provider takes the money and uses the cash to pay the provider’s cell phone bill.

Revision 19-1; Effective July 1, 2019

3110 Intake Meets the Definition of Abuse, Neglect, or Exploitation

Revision 21-1; Effective April 26, 2021

Before investigating an intake, PI reviews the intake and determines whether:

• the information is within PI’s jurisdiction;
• the information meets the definition of an allegation of abuse, neglect, or exploitation; and
• a referral to the provider or another agency or an investigation by PI is appropriate.

Time frames for investigation contacts (3320 Contacts) and completion (3500 Investigation Completion) are based on the location of the incident and the priority of the intake.

3120 Intake Priority

Revision 21-1; Effective April 26, 2021

PI maintains a prioritization system for investigations conducted in all provider settings. The priority of the allegation is assigned by SWI. The investigator verifies the provider type at the time of intake to ensure the correct priority and that the time frame (3500 Investigation) for completing the investigation is accurate. The investigator may change the intake priority based on information gathered by preliminary investigation activities.

Priority I: Initial contact is required within 24 hours of the report.

Priority I reports:

• have a serious risk that a delay in the investigation will impede the collection of evidence; or
• allege that the victim has been subjected to abuse, neglect, or exploitation by an act or omission that caused, or may have caused, serious physical or emotional harm.

Priority I reports include:

• death;
• sexual abuse;
• an injury caused by serious physical abuse;
• serious verbal or emotional abuse; or
• incitement to harm self or others.

Priority II: Initial contact is required within three calendar days of the report.

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 by an 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:

• a non-serious injury caused by physical abuse; or
• non-serious verbal or emotional abuse.

Sexual abuse reports cannot be prioritized as a Priority II.

Priority III: Initial contact is required within seven calendar days of the report.

Priority III reports allege:

• abuse, neglect, or exploitation that would otherwise be classified as Priority I or II, but:
  • the alleged incident occurred more than 30 days before the date of the report; and
  • there is no known or perceived risk; or
• exploitation when it is the only allegation type in the report.

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

The following allegations cannot be classified as a Priority III:

• allegations of abuse, neglect, or exploitation in a state supported living center; or
• allegations involving children in any setting.

Revision 18-1; Effective September 1, 2018

PI must make a notification of an allegation within specific time frames to:

• the administrator or designee of a provider;
• other state agencies; and
• law enforcement in specific situations.

The investigator notifies providers of allegations so that the provider may ensure the health and safety of the individual receiving services and preserve evidence relevant to the allegation.

3210 Notifications to Law Enforcement or the Office of the Inspector General (OIG)

Revision 21-1; Effective April 26, 2021

PI notifies law enforcement and OIG of alleged abuse, neglect, and exploitation in certain circumstances according to the location of the incident and age of the alleged victim.

If the provider is a state supported living center or state hospital, the investigator makes the following notifications:

• Law enforcement, within one hour of any allegation of abuse, neglect, or exploitation involving a child.
• Law enforcement, within one hour of any allegation of abuse, neglect, or exploitation involving an adult believed to constitute a criminal offense under any law.
• OIG, within one hour of any allegation of abuse, neglect, or exploitation involving a person receiving services believed to constitute a criminal offense under any law.

For all other providers, unless law enforcement reported the allegation to the department, the investigator notifies law enforcement within 24 hours of any allegation of abuse, neglect, or exploitation involving:

• a child; or
• an adult believed to constitute a criminal offense under any law;

The investigator notifies law enforcement using a mutually agreed upon method between PI and the law enforcement agency.

The identity of the reporter is revealed to law enforcement and OIG.

The investigator notifies law enforcement and OIG if the person receiving services dies during an investigation and it is suspected that the death is related to abuse or neglect. The investigator cooperates with law enforcement and OIG.

See related 26 TAC 711.401.

3220 Notifications to the Provider and Applicable Regulatory Program

Revision 19-1; Effective July 1, 2019

The investigator makes the appropriate notifications when the alleged perpetrator is an employee of a provider in accordance with 26 TAC §711.402.

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

When the alleged perpetrator is a direct provider of a …	PI notifies	Within…
Facility, community center, local authority, HCS or TxHmL waiver program provider	The facility, community center, local authority, HCS or TxHmL waiver program provider	One hour of receipt of the allegation by DFPS Statewide Intake (SWI)
HCS or TxHmL waiver program provider	HHSC Office of Ombudsman	24 hours of receipt of the allegation by DFPS SWI or the next working day
Community Provider - service provider	Service provider	24 hours of receipt of the allegation by DFPS SWI
Community Provider - limited service provider	Limited service provider & service provider	24 hours of receipt of the allegation by DFPS SWI
Managed care organization	Managed care organization	24 hours of receipt of the allegation by DFPS SWI
Consumer Directed Service (CDS) Option employer	CDS employer, and as appropriate, the MCO service coordinator, PCS case manager, or HHSC Financial Management Services Agency (FMSA)	24 hours of receipt of the allegation by DFPS SWI

SSLC Commencement Requirements

PI complies with the Department of Justice Settlement Agreement. PI communicates with the facility to ensure the facility provides for the safety of the person receiving services and protects relevant evidence. Communication with the facility occurs within one hour of receipt of the intake and then additional information is obtained within 24 hours.

3230 Notifications Involving Other State Agencies or Entities

Revision 18-1; Effective September 1, 2018

Notifying Child Protective Services

If the alleged victim is a child or young adult and is listed in an open DFPS CPS conservatorship case, PI notifies the CPS primary worker.

The program providing the service to the child notifies the parent or conservator.

Notifying HHSC Guardianship

PI notifies the HHSC guardianship caseworker if an HHSC ward is the alleged victim in an abuse, neglect, or exploitation investigation.

Notifying the Court That Has Jurisdiction

PI notifies the applicable probate court when a ward is alleged to be a victim of abuse, neglect, or exploitation and is receiving services from a provider.

For the addresses of probate courts in Texas, see Texas Courts Online.

3240 Notifications Involving Independent School Districts (ISD)

Revision 18-1; Effective September 1, 2018

PI makes notifications as listed in the chart below when allegations involve ISDs:

If:	Then:
The investigator determines that an abuse, neglect, or exploitation allegation involves: an employee of a public primary or secondary school providing educational services at a facility, on campus grounds, under either a contract or memorandum of understanding; and an individual receiving services who is an alleged victim and who is a student at the school.	PI notifies (by phone or in person): the facility within one hour; and the superintendent of the school district within 24 hours of receipt of the report or the next business day.

Investigations of school employees are a special category, and notifications at the close of an investigation are handled differently than other types of investigations.

School employees with a finding of Confirmed are eligible for an administrative review (4210.1 administrative review).

Revision 18-1; Effective September 1, 2018

PI uses preponderance as the standard of evidence for confirming abuse, neglect, and exploitation in an investigation. PI does the following for every allegation, except in certain circumstances where a case is rapidly closed without full investigation:

• makes an initial contact with the alleged victim;
• interviews the reporter, relevant witnesses, and alleged perpetrators;
• obtains and reviews relevant demonstrative evidence such as photographs, diagrams, and video surveillance;
• reviews and obtains copies relevant information from client records;
• gathers and reviews relevant administrative forms (for example, incident reports, client injury reports, timesheets); and
• analyzes all relevant evidence and documents the outcome in the final investigative report.

Physical evidence is any item or substance related to an allegation that can be seen or touched. PI does not collect and store physical evidence, but may document it by taking photographs of it in place and describing it in the case report. Law enforcement or other investigative agencies may collect and store physical evidence.

PI collects relevant evidence from multiple sources in order to determine a finding in the investigation. The finding is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence collected.

3310 Prior Case History

Revision 18-1; Effective September 1, 2018

At the initiation of each investigation, the investigator conducts a search of relevant prior case history of the alleged victim and alleged perpetrator in all provider settings. The results of the prior case history search may be used to inform the current investigation.

3320 Contacts

Revision 21-1; Effective April 26, 2021

Alleged Victim Contact

PI makes contact with the alleged victim as part of its investigation under 26 TAC §711.415.

PI may make a telephone contact with the alleged victim when the intake alleges:

• exploitation, neglect, physical abuse, or verbal or emotional abuse; and
• 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.

PI conducts a face-to-face contact with the alleged victim when:

• the allegation involves an SSLC or state hospital; or
• the intake alleges sexual abuse.

If during the course of an investigation PI determines a face-to-face contact with the alleged victim is necessary, PI conducts such contact within the timeline established by the priority of the case.

See Section 3120 Intake Priority for time frames.

Other Investigation Contacts

PI attempts to contact individuals with direct or circumstantial knowledge of the allegation. The contact may be conducted in person or by telephone with the following:

• the reporter, if known, in all investigations;
• the alleged perpetrator, when appropriate; and
• collateral witnesses.

Revision 18-1; Effective September 1, 2018

PI analyzes the evidence to reach a preponderance and determine the investigation finding.

Revision 19-1; Effective July 1, 2019

Completion time frames differ depending on the specific facility or provider type and intake priority.

Setting:	Intake Priority:	Completion and approval in…
SSLC	I or II	10 calendar days
State Hospital	I or II	14 calendar days
State Hospital	III	21 calendar days
All other provider types	I, II or III	30 calendar days

See related 26 TAC §711.417.

3510 Extensions

Revision 19-1; Effective July 1, 2019

If additional time is required to complete the investigation, the PI program administrator or designee grants an extension for good cause. Good cause is described as a situation beyond the investigator’s control that prevents the case from being completed on time. The investigator notifies the service provider of the extension.

See related 26 TAC §711.419.

3520 Investigation Status Report and Report Provision

Revision 22-1; Effective May 4, 2022

Five-Day Status Report

PI provides a five-day status report to the provider’s administrator for investigations involving SSLCs and other settings that are considered ICF/IIDs. This updates the provider on the progress of the investigation.

Provider Abuse and Neglect Report

PI's final Provider Abuse/Neglect Report includes the following:

• a statement of the allegation or allegations;
• a summary of the investigation;
• an analysis of the evidence;
• a finding that the allegation is confirmed, unconfirmed, inconclusive, or unfounded;
• concerns and recommendations, if any, resulting from the investigation;
• the name of the designated perpetrator or alleged perpetrator;
• photographs relevant to the investigation, including photographs showing the existence or the non-existence of injuries, when appropriate; and
• all witness statements and supporting evidence.

See related 26 TAC §711.603.

Investigation Findings

The investigator makes the appropriate findings supported by the preponderance of the evidence.

confirmed	there is a preponderance of credible evidence to support that abuse, neglect, or exploitation occurred.
unconfirmed	there is a preponderance of credible evidence to support that abuse, neglect, or exploitation did not occur.
inconclusive	there is not a preponderance of credible evidence to indicate that abuse, neglect, or exploitation did or did not occur due to lack of witnesses or other available evidence.
unfounded	evidence gathered indicates that the allegation is spurious or patently without factual basis.

Designating a Systems Issue

When the preponderance of the evidence establishes that abuse, neglect, or exploitation occurred, the investigator designates a Systems Issue as the designated perpetrator in the IMPACT case management system, if:

• the provider’s lack of established policy or procedure contributed to the abuse, neglect, or exploitation; or
• the provider’s established policy is inadequate and fails to ensure the safety of the person receiving services.

See related 26 TAC §711.423.

Notification of the Findings

The investigator communicates the results of the investigation by sending the approved PI Provider Abuse/Neglect Report to the provider and, if applicable, the appropriate HHSC Regulatory Services Division program.

If the investigator notifies law enforcement or OIG at any time during the investigation, PI forwards a copy of the Provider Abuse/Neglect Report to that entity.

See related 26 TAC §711.605.

For all providers, the investigator notifies the reporter within five business days of completing the investigation, stating the outcome of the investigation and providing them with information about the appeal process.

In community provider cases, the victim is notified within one business day of completing the investigation and receives information about the outcome of the investigation and the appeal process. The alleged or designated perpetrator is notified about the outcome of the investigation within one business day of investigation completion.

See related 26 TAC §711.609 and 26 TAC §711.611.

Revision 19-1; Effective July 1, 2019

When all or part of the information reported to PI fails to meet the definition of abuse, neglect, or exploitation, PI forwards the information to the provider, and if applicable, the HHSC Regulatory Services Division program, professional licensing board, or law enforcement.

PI does not investigate:

• if another program or division of HHSC or another state agency is responsible under state law for the investigation;
• general complaints such as:
  • rights violations; or
  • daily administrative operations;
• operational issues related to the business of managed care or consumer directed services;
• if the allegation involves only the clinical practice of a licensed professional;
• theft, as defined in Chapter 31 of the Texas Penal Code;
• allegations of exploitation less than $25.00; or
• loans made by a person receiving services to a direct provider of a community provider.

See related 26 TAC §711.7.

Revision 19-1; Effective July 1, 2019

During an investigation, PI may encounter a situation in which emergency services are needed to immediately protect a person receiving services or other people from serious physical harm or death. In extreme situations, an investigator calls 911 for immediate emergency medical services or law enforcement support. PI coordinates emergency services with DFPS.

DFPS may provide emergency services when the provider and HHSC are unable to respond. Examples of emergency services include:

• an emergency order for protective services;
• shelter;
• medical and psychiatric assessments;
• medical and psychiatric treatment; and
• medication, food, and other supplies.

DFPS maintains emergency services until the provider or HHSC provides the required services.

See related 26 TAC Chapter 711, Subchapter F.

Revision 21-1; Effective April 26, 2021

The files, reports, records, communications, working papers used or developed in the investigation, including the Provider Abuse/Neglect Report, and the identity of the person making the report, are confidential and not subject to disclosure under the Texas Public Information Act. This information may be disclosed only as provided in the Texas Human Resources Code §48.101, the Texas Family Code §261.201; and the TAC 26 §711.605.

Although the information identified above is confidential, to protect vulnerable adults or children from abuse, neglect, or exploitation, PI is authorized by the referenced laws to disclose information to certain organizations and individuals.

Revision 21-1; Effective April 26, 2021

If a designated perpetrator works for another provider, the investigator may release the confirmed findings of the investigation to the other employer or person after completing the due process outlined below. PI does not release findings of Inconclusive, Unconfirmed, or Unfounded to the other employer or person.

If PI releases a confirmed investigation finding to another employer or person, the designated perpetrator must be given prior written notification and an opportunity to request an Administrative Review of Investigative Findings and a hearing before the State

Office of Administrative Hearings (SOAH) as part of due process.

Due Process is only applicable when PI wants to release a finding of Confirmed to the designated perpetrator's other employer or person when the designated perpetrator is not:

• the designated perpetrator in a school investigation, see Human Resources Code §48.102(a); or
• eligible for inclusion in the Employee Misconduct Registry (EMR).

For allegations that rise to the level of reportable conduct, the EMR hearing is the designated perpetrator's due process. See 5000 The Employee Misconduct Registry for information related to the EMR process.

See 4230 Release of Findings for School Employees for allegations involving a school investigation.

4210 Due Process: Non-Emergency Release of Findings

Revision 21-1; Effective April 26, 2021

A non-emergency release of findings is completed when:

• PI confirms an allegation of abuse, neglect, or exploitation against a designated perpetrator;
• PI determines an emergency release of findings is not applicable; and
• another employer or person allows the designated perpetrator to have access to persons who are age 65 or older, adults with disabilities or children.

PI must give written notification to each designated perpetrator if:

• allegations of abuse, neglect, or exploitation are confirmed;
• the findings are to be released outside of PI to an employer or person which allows the designated perpetrator access to persons who are age 65 or older, adults with disabilities, or children; and
• the designated perpetrator, because of the release, may be denied a right or privilege, such as employment.

PI sends the designated perpetrator a Notification of Intent to Release letter and a Request for Administrative Review letter to initiate due process.

The Notification of Intent to Release includes:

• the findings to be released;
• the entity or employer to which the findings will be released;
• the designated perpetrator's right to request a copy of the investigation documentation, from which the reporter's name has been removed;
• a warning that the request for a copy of the investigation documentation may be denied if release of the investigation documentation would jeopardize an ongoing criminal investigation, or if the attorney representing PI in a lawsuit has determined that the information should be withheld;
• PI's decision that an emergency exists and that the findings have already been released, if applicable;
• the designated perpetrator's right to an administrative review and a release hearing to appeal the findings, and a warning that the findings will be released without the designated perpetrator's consent if the designated perpetrator does not request an appeal and the findings have not already been released in an emergency;
• the requirement that the designated perpetrator must request the appeal in writing and that the request must be postmarked within 20 days after PI mails the official notice; and
• a statement that the designated perpetrator is responsible for keeping PI informed of the designated perpetrator's current address and to immediately notify PI of any change of address or contact information throughout the investigation and time during which an appeal is pending.

See related 40 TAC §705.1305(b).

4210.1 Administrative Review

Revision 21-1; Effective April 26, 2021

An administrative review is an informal review conducted by the director of provider investigation or their designee. The administrative review is required before offering a release hearing to the designated perpetrator.

Step 1: Request for Administrative Review

The designated perpetrator requests an administrative review of the investigation findings for any non-EMR investigation by completing and returning the Request for Administrative Review to the director of provider investigations.

The Request for Administrative Review must be postmarked within 20 calendar days after the official notice is mailed by PI or the right to the administrative review is forfeited.

If the request is timely, the reviewer sends the designated perpetrator an Appointment Letter for Administrative Review, providing the date and time for the review.

If the designated perpetrator does not request an administrative review within 20 calendar days after PI mails the official notice, PI may release the information unless it has already been released as an emergency release.

If PI made an emergency release and did not receive a request for an administrative review, the investigator sends the designated perpetrator a notice confirming the emergency release.

See 4220 Due Process: Emergency Release of Findings.

Step 2: Request for Records for an Administrative Review

The designated perpetrator may request a redacted copy of the investigative report using the Request for Administrative Review letter provided by PI.

Step 3: Administrative Review Process

At the administrative review, the designated perpetrator may:

• appear in person and be accompanied by a representative;
• submit written material that is relevant to the case;
• have a certified interpreter provided by DFPS if the designated perpetrator does not speak English or is hearing impaired, or may provide their own interpreter; or
• all the above.

See related 40 TAC §705.1307(a).

The designated perpetrator is responsible for any costs they may incur for the review, except for interpreter services provided by PI.

See related 40 TAC §705.1307(b).

Formal rules of evidence are not applicable to the administrative review. The designated perpetrator may make statements, provide information, or ask questions. The designated perpetrator may bring statements from additional witnesses. No live testimony from witnesses other than from the designated perpetrator is accepted at this informal review. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.

Within 45 days of the administrative review, the reviewer decides to sustain, alter, or reverse the original findings based on the same requirements and criteria that investigators and supervisors use to conduct investigations and reach conclusions.

Step 4: Administrative Review Outcome

The designated perpetrator receives an Administrative Review of the Investigation Findings letter notifying them of the administrative review outcome. The notification includes a Request for Release Hearing letter.

4220 Due Process: Emergency Release of Findings

Revision 21-1; Effective April 26, 2021

If PI determines that a delay in releasing the findings will place people age 65 or older, or adults or children with disabilities in a state of or at risk of serious harm, PI may release the findings before offering due process to the designated perpetrator. This process is an emergency release of findings.

If an emergency release of findings is necessary, PI notifies the employer, or other person allowing the designated perpetrator access to vulnerable adults or children of the findings.

Since the designated perpetrator is entitled to receive written notification and has the right to appeal the findings, PI notifies the designated perpetrator by sending them the Emergency Release Notification and Request for Administrative Review letters. PI does not have to notify the designated perpetrator before releasing the finding to an employer in an emergency.

The Emergency Release Notification to the designated perpetrator outlines:

• PI's decision that an emergency exists and notification that the findings have been released to other employers or entities;
• the designated perpetrator's right to appeal an emergency release; and
• instructions on how to appeal the finding.

Once due process is complete, PI sends the Final Letter of Due Process to the employer or entity, which outlines:

• that due process has been offered or provided; and
• whether the findings have changed.

See related 40 TAC §705.1305.

4230 Due Process: Release of Findings for School Employees

Revision 19-1; Effective July 1, 2019

 

4230.1 Releasing the PI Investigation to School Officials

Revision 21-1; Effective April 26, 2021

• PI sends a copy of the Provider Abuse/Neglect Report and Notice of Conclusion of Investigation (School Employees) to the:
  • provider;
  • Texas State Board of Educator Certification;
  • president of the local school board or the school's governing body; and
  • school principal or director, unless the principal or director is the alleged perpetrator.

The Notice of Conclusion of Investigation (School Employees) includes:

• information about the designated perpetrator's right to an administrative review after release of findings involving confirmed allegations; and
• informs the designated perpetrator of the notification to school officials.

See related Human Resources Code §48.102(a).

4230.2 Notification of Release of Findings for School Employees

Revision 19-1; Effective July 1, 2019

When the investigation ends, and immediately after the release of the report to school officials, PI sends the Notification of Release – School Investigation to the alleged or designated perpetrator, regardless of the findings.

In confirmed cases only, the notification must also include the following:

• a Rights of Designated Perpetrators in Validated Cases (School Employees) letter, which includes:
  • a notice that the perpetrator may request a copy of the report;
  • a warning that the request may be denied if it would jeopardize a criminal investigation; and
  • notice that the designated perpetrator must request an appeal in writing within 30 days;
• a Request for an Administrative Review letter; and
• a Request for DFPS Records form.

4230.3 Criteria for Administrative Review for School Employees

Revision 18-1; Effective September 1, 2018

An administrative review is not offered to the alleged perpetrator before release to school officials. In addition:

• a review is offered only if the disposition of the allegation is Confirmed; and
• no release hearing is offered following a review.

4230.4 Request for an Administrative Review for School Employees

Revision 18-1; Effective September 1, 2018

The request for an administrative review is addressed to the director of provider investigations and must be received within 30 days after the official notice is mailed by PI.

If PI does not receive the request within 30 days after PI mails the official notice, the designated perpetrator has waived their right to an administrative hearing.

School employees are not offered release hearings, regardless of the outcome of the administrative review.

4230.5 Notification of Final Findings for School Employees

Revision 19-1; Effective July 1, 2019

Once an administrative review has been completed, PI sends copies of the Findings of Administrative Review (School Employees) letter to the perpetrator. Copies are also sent to all entities notified of the original findings.

When the designated perpetrator does not request an administrative review, PI sends the Notice of Final Findings of Investigation (School Employees) letter to the perpetrator. Copies are also sent to all entities notified of the original findings.

Revision 19-1; Effective July 1, 2019

An appeal is a challenge of the findings of the investigation by a qualified party. A qualified party includes:

• the service provider's administrator or attorney;
• the CDS employer or the employer's legal representative;
• the reporter;
• the alleged victim, victim, their legal guardian, or their parent (if the alleged victim is a child); or
• Disability Rights Texas, only if Disability Rights Texas represents the alleged victim or victim or is authorized by law to represent the alleged victim.

The following restrictions apply to an appeal of findings:

• 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 into requesting an appeal on their behalf.
• An appeal may not challenge whether a confirmation rises to the level of reportable conduct for purposes of the Employee Misconduct Registry (EMR).
• An administrator or contractor CEO who is the alleged perpetrator is not eligible to request an appeal of the finding. In this case, the administrator's designee can request an appeal of the findings.

See related 26 TAC §711.901 and 26 TAC §711.905

4310 Request an Appeal

Revision 19-1; Effective July 1, 2019

First Level Appeal

A qualified party may request a first level appeal using Form 2324, First Level Appeal of Provider Investigation Finding.

The alleged victim or victim, legal guardian, parent (if the alleged victim or victim is a child), and reporter may request a first level appeal by calling 888-778-4766.

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.

Reporters, alleged victims or victims, 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.

PI may accept a request for appeal after the deadline for good cause as determined by PI.

Second Level Appeal

If a qualified party disagrees with the decision of the first appeal, they may request a second level appeal using Form 2349, Second Level Appeal of Provider Investigation Finding.

The alleged victim or victim, legal guardian, parent (if the alleged victim or victim is a child), and reporter may request a second level appeal by calling 888-778-4766.

Submit requests for second level appeals no later than 30 calendar days following the date the first level appeal decision letter is signed.

PI may accept a request for appeal after the deadline for good cause as determined by PI.

See related 26 TAC §711.907 and 26 TAC §711.909.

4320 Appeal Process

Revision 19-1; Effective July 1, 2019

A first level appeal is conducted by the director of provider investigations or their designee. A second level appeal is conducted by a reviewer designated by the director of provider investigations, who:

• analyzes the investigative report and the methodology used to conduct the investigation;
• decides to sustain, alter, or reverse the original finding or return the case to the district for additional investigation; and
• completes the review within 14 calendar days after receipt of the complete appeal request.

See related 26 TAC §711.911 and 26 TAC §711.915.

4330 Appeal Outcome

Revision 21-1; Effective April 26, 2021

The reviewer notifies the requestor of the appeal outcome. If the finding changed the following people will also be notified, as appropriate:

• the service provider;
• alleged victim or victim; or
• reporter.

The determination resulting from the second appeal is final and cannot be appealed by any qualified party except Disability Rights Texas.

If the administrator of a state operated facility disagrees with the second level appeal decision, the administrator may contest the decision in accordance with 25 TAC §417.510(g)(2) and 40 TAC §3.305(b).

See related 26 TAC §711.911 and 26 TAC §711.913.

Revision 18-1; Effective September 1, 2018

PI and OIG investigate for different purposes under different laws, time frames, and standards of evidence. When both PI and the OIG investigate the same incident, they reach independent findings.

In accordance with the Memorandum of Understanding between HHSC state operated facilities, OIG and PI, an OIG comparison review may be requested by OIG or an SSLC administrator.

Revision 20-1; Effective March 10, 2020

PI complies with all laws and rules about the entitlement, redaction, and release of the confidential case records it maintains. Include the requestor's name, address, case number, or other contact information with HHSC records requests. Also include a clear description of the information being sought. Requestors submit requests by U.S. mail, fax or email to:

HHSC Open Records Coordinator
MC-1070
4900 N. Lamar Blvd. Austin, TX 78751-2316
Fax: 512-424-6586
OpenRecordsRequest@hhsc.state.tx.us

If the person requesting records has questions about any records issues, they can visit the HHSC Open Records Policy and Procedures page.

Records Retention

All provider investigations are retained electronically for 20 years.

Revision 21-1; Effective April 26, 2021

To be eligible for the EMR process, the investigation must show that:

• the employee meets the criteria in 5110 EMR-Eligible Employees;
• an EMR-eligible employee has a confirmed finding of abuse, neglect or exploitation; and
• the confirmed finding of abuse, neglect, or exploitation rises to the level of reportable conduct.

A reportable conduct designation establishes that the criteria for EMR eligibility has been met and does not result in any additional allegation or finding.

See related 26 TAC Chapter 711, Subchapter L.

5110 EMR-Eligible Employees

Revision 20-2; Effective August 1, 2020

To be placed on the EMR, the designated perpetrator must:

• meet the definition of an employee as established in the Texas Resources Code Chapter 48; and
• be an employee, contractor, volunteer or agent of an agency, as defined in 26 TAC §711.1406.

Most licensed professionals are not eligible for EMR, although they may be subject to other registries. A certified nurse aide is not licensed and therefore is EMR-eligible.

See related 26 TAC §711.1402.

5120 Definition of Reportable Conduct

Revision 21-1; Effective April 26, 2021

Reportable conduct is:

• abuse or neglect that causes or may cause death or harm to an individual receiving services;
• sexual abuse of an individual receiving services;
• financial exploitation of an individual receiving services in an amount of $25 or more; or
• emotional, verbal, or psychological abuse that causes harm to an individual receiving services.

See related
Texas Human Resources Code §48.401
26 TAC §711.1408
 

5130 Definition of Harm

Revision 20-2; Effective August 1, 2020

Abuse or Neglect

To determine whether a confirmed finding of abuse or neglect rises to the level of reportable conduct, harm is defined as:

• a significant injury or risk of significant injury, including a fracture, dislocation of any joint, an internal injury, a contusion larger than 2.5 inches, a concussion, a second- or third-degree burn, or any laceration requiring sutures;
• an adverse health effect that results or is at risk of resulting from failure to receive medications in the amounts or at the times prescribed; or
• any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

Emotional, Verbal, or Psychological Abuse

To determine whether a confirmed finding of emotional, verbal, or psychological abuse rises to the level of reportable conduct, harm is defined as substantial harm as evidenced by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

See related 26 TAC §711.1408.

Revision 20-2; Effective August 1, 2020

When investigating an employee whose conduct is reportable to EMR, the EMR coordinator sends the employee a Notice of Finding letter.

For information regarding the contents of the notice, see 26 TAC §711.1413.

An employee of a state operated facility also receives notice that they are entitled to a grievance hearing on disciplinary action based on a finding of reportable conduct. This request is separate and in addition to a request for an EMR hearing. An EMR hearing takes place before the grievance hearing.

See related 26 TAC §711.1434.

5210 Request for an EMR Hearing by the Employee

Revision 20-2; Effective August 1, 2020

To request a hearing, an employee submits a Request for Hearing, as explained in the Notice of Finding letter.

See related 26 TAC §711.1415.

Deadlines for Filing

The employee must file the Request for Hearing no later than 30 calendar days from the date that they receive the Notice of Finding.

See related 26 TAC §711.1417(a).

Notice of Finding to the Employee

PI presumes that the employee received the Notice of Finding on the date of delivery, as indicated on the return receipt for the certified mailing.

If the certified mailing is returned unclaimed but the regular mailing is not returned, the Notice of Finding is presumed received on the third business day following the date that the notice was mailed to the employee's last known address.

See related 26 TAC §711.1417(b).

For instructions on employees filing a Request for Hearing letter by mail, fax or hand delivery, see 26 TAC §711.1417(c).

Late Request for an EMR Hearing

If an employee files a Request for Hearing after the deadline, PI notifies the employee that:
  •  the request was not filed by the deadline;
  •  no hearing will be granted; and
  •  their name will be submitted for inclusion in the EMR.

See related 26 TAC §711.1417(d).

Lateness Disputed

If an employee disputes missing the deadline to request a hearing, they may request a hearing that is limited solely to determining the timeliness of the request.

If, as a result of that hearing, the employee proves that the original Request for Hearing was filed on time, a separate hearing is scheduled as soon as possible to determine whether the employee committed reportable conduct.

See related 26 TAC §711.1417(e).

Revision 20-2; Effective August 1, 2020

Immediately upon receiving a Request for Hearing, PI forwards the request to the docket clerk for administrative hearings who assigns the case to an administrative law judge.

The administrative law judge:

•   schedules a hearing as soon as possible; and
•   sends a Notice of Hearing letter to the employee and to the EMR attorney.

The hearing is usually held in the same PI district where the alleged reportable conduct took place.

See related 26 TAC §711.1421.

5310 Rescheduling an EMR Hearing

Revision 20-2; Effective August 1, 2020

Either the employee or PI may request that the administrative law judge reschedule an EMR hearing for good cause.

Except in cases of emergency, a request to reschedule must be made no later than three business days before the hearing date.

See related 26 TAC §711.1423.

5320 Withdrawing a Request for an EMR Hearing

Revision 20-2; Effective August 1, 2020

Withdrawal by Employee

An employee may withdraw a request for an EMR hearing any time before the hearing is conducted.

An employee who withdraws a request for a hearing is deemed to have accepted the finding of reportable conduct and their name will be submitted to the EMR.

See related 26 TAC §711.1425.

Withdrawal by PI

PI may withdraw from an EMR hearing any time before the hearing is conducted.

If PI withdraws from the hearing, the EMR attorney notifies the PI program administrator and EMR coordinator.

The EMR coordinator sends a Notice of Review of Reportable Conduct Finding to the employee, the administrator, and if appropriate, the contractor's CEO and the HHSC Waiver Survey and Certification office.

5330 Failure to Appear for an EMR Hearing

Revision 20-2; Effective August 1, 2020

If either PI or the employee fails, without good cause, to appear at an EMR hearing, the administrative law judge may issue a default judgment against the party that failed to appear.

See related 26 TAC §711.1426.

5340 The Decision of the Administrative Law Judge

Revision 20-2; Effective August 1, 2020

The administrative law judge prepares a hearing order that is mailed to the employee.

For information regarding the contents of the hearing order, see 26 TAC §711.1429(a).

5350 Request by an Employee for a Judicial Review

Revision 21-1; Effective April 26, 2021

An employee may request judicial review of an administrative law judge's finding of reportable conduct.

An employee must first file a timely motion for rehearing as a prerequisite to judicial review. The party filing the motion for rehearing must do so within 25 days after the administrative law judge signed the hearing order. The motion for rehearing must be served on the administrative law judge and PI attorney of record.

To seek judicial review of a hearing order, the employee files a timely petition for judicial review in a Travis County district court within 30 days after the hearing order is final and appealable, as provided by Texas Government Code, Chapter 2001, Subchapter G.

See related 26 TAC §711.1431.

5360 Providing Notice if a Finding Is Modified or Reversed After Judicial Review

Revision 20-2; Effective August 1, 2020

If a finding of reportable conduct is modified or reversed as a result of a judicial review, the EMR coordinator provides notice of the final outcome to any person or entity that was previously notified of PI's original finding.

See related 26 TAC §711.1432.

Revision 20-2; Effective August 1, 2020

If an employee accepts a finding of reportable conduct, or the finding is sustained following all administrative remedies, the EMR coordinator forwards the information related to the finding to HHSC to be recorded in the EMR database.

See related 26 TAC §711.1432.

Revision 21-1; Effective April 26, 2021

HHSC employees who disagree with employer actions based on PI findings may file a grievance with the employer. Employer action examples include:

• leave without pay;
• letters of reprimand ; or
• termination.

At the grievance hearing, a presiding HHSC Appeals Division administrative law judge may uphold all or part of the investigation findings.

If the employee has been referred to the EMR, the grievance hearing will not take place until the EMR proceedings have been completed.

See 5000, The Employee Misconduct Registry.

HHS Human Resources Policy Manual, Chapter 1

Revision Notice 22-1; Effective May 4, 2022

The following change(s) were made:

Revised	Title	Change
3520	Investigation Status Report and Report Provision	Removes “As a result of the Texas Department of Justice Settlement” from the first sentence.

Revision Notice 21-1; Effective April 26, 2021

The following change(s) were made:

Revised	Title	Change
Handbook	Various Sections	Revises links to both Texas Administrative Codes and Texas statutes throughout handbook.
Handbook	Various Sections	Updates section references in various sections to match handbook formatting.
2000	Reporting Abuse, Neglect and Exploitation	Updates Abuse, Neglect and Exploitation Hotline to current name, Texas Abuse Hotline.
3520	Investigation Status Report and Report Provision	Updates Final Abuse and Neglect Report to current name, Provider Abuse/Neglect Report.
4100	Confidentiality of Investigative Process and Report	Updates Final Abuse and Neglect Report to current name, Provider Abuse/Neglect Report.
4230.1	Releasing the PI Investigation to School Officials	Updates Final Abuse and Neglect Report to current name, Provider Abuse/Neglect Report.

Revision Notice 20-2; Effective August 1, 2020

The following change(s) were made:

Revised	Title	Change
5000	The Employee Misconduct Registry	Updates Texas Administrative Code references and links from 40 TAC to 26 TAC.

Revision Notice 20-1; Effective March 10, 2020

The following change(s) were made:

Revised	Title	Change
4500	Request for Records	Updates HHSC records request process and submission information.