Revision 21-1; Effective April 26, 2021

 

4100 Confidentiality of Investigative Process and Report

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.

 

4200 Release to Other Employers

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 Section 5000 The Employee Misconduct Registry for information related to the EMR process.

See Section 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 Section 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.

 

4300 Appeal of the Investigation 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.

 

4400 Request for an OIG Comparison Review

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.

 

4500 Request for Records

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.