Current through Reg. 49, No. 38; September 20, 2024
(a) The Texas
Department of Health (department) shall investigate allegations received
relating to the abuse or neglect of a child or the abuse, neglect, or
exploitation of an elderly or disabled person in a facility.
(b) The department will only investigate
reports when:
(1) the act is reported to have
occurred in a facility and the victim was a patient or client of the
facility;
(2) the act occurred away
from the facility but the facility was responsible for the supervision of the
patient or client who was the victim at the time the act allegedly
occurred;
(3) the act is reported
to have occurred in a facility and the alleged perpetrator was an owner,
operator, manager, employee, or agent of the facility; or
(4) the act occurred away from the facility
but the facility was responsible for the supervision of the alleged perpetrator
at the time the act occurred.
(c) The department shall review each
allegation and determine that it is appropriate for the department to
investigate the allegation.
(1) If there is
reason to suspect that the patient or client was abused, neglected, or
exploited prior to admission to the facility or during an unsupervised absence
from the facility, the department shall refer the allegation to the Texas
Department of Protective and Regulatory Services.
(2) If the allegation involves the actions of
a licensed health care professional, the department will determine whether the
allegation involves clinical issues.
(A) The
department will pursue an investigation of the portion of an allegation which
does not involve clinical issues.
(B) If the allegation involves clinical
issues, the allegation shall immediately be forwarded to the state agency which
licenses the health care professional involved. The identity of a person
reporting abuse or neglect must be blacked out or deidentified.
(3) The department need not
investigate an allegation that clearly does not involve abuse or neglect of a
child in a facility or abuse, neglect or exploitation of an elderly or disabled
person in a facility. The department may refer the reporter to other agencies
for assistance.
(4) Injuries of
unknown origin shall be investigated if the attending physician, after
examining the patient, suspects that the injury is the result of abuse or
neglect.
(5) If an allegation
involves the daily administrative operations of a facility and has not resulted
in a specific case of abuse, neglect, or exploitation, such as the failure to
maintain an adequate number of staff, the department need not investigate the
matter under this section but may investigate the matter as a complaint
investigation involving regulatory issues.
(d) Allegations which cannot be investigated
by the department pursuant to the Family Code, Chapter 261, or the Human
Resources Code, Chapter 48, shall be referred to the Texas Department of
Protective and Regulatory Services for appropriate investigation or action
consistent with existing law.
(e)
The department shall make a thorough investigation promptly after receiving an
allegation.
(1) The primary purpose shall be
the protection of the child or elderly or disabled person.
(2) If a facility is licensed by the
department and another state agency, the department shall notify the other
agency (if the other agency is unaware of the allegation) before initiating an
investigation and make a reasonable effort to coordinate the investigation and
avoid duplication of effort.
(3) If
a report of serious physical injury or sexual abuse of a child is received by
the department from the Texas Department of Protective and Regulatory Services,
the investigation shall be conducted jointly by the appropriate local law
enforcement agency and the department, if possible. The department shall
document any instance in which a law enforcement agency is unable or unwilling
to conduct a joint investigation.
(f) Anonymous allegations will be received
and investigated following the same procedures that are used when the reporter
is known.
(g) An allegation
relating to a patient or client who is in the facility where the act allegedly
occurred at the time of the department's receipt of the allegation shall be
given priority by the department in the scheduling of investigations. An
allegation relating to a patient or client who is no longer in the facility
shall be given secondary priority.
(h) An investigation of abuse, neglect, or
exploitation may occur in conjunction with other survey activities or complaint
investigations relating to violations of federal or state laws or rules;
however, the determination as to whether abuse, neglect, or exploitation has
occurred or is likely to occur is a separate determination from regulatory
matters and shall be made without regard as to whether law or rule violations
or deficiencies are cited.
(i) An
investigation shall include:
(1) an interview
with the alleged victim, if appropriate. An interview with a child alleged to
be a victim of physical abuse or sexual abuse shall be audiotaped or videotaped
unless the department determines that good cause exists for not audiotaping or
videotaping the interview. Good cause may include, but is not limited to, such
considerations as the age of the child and the nature and seriousness of the
allegations under investigation. Nothing in this paragraph shall be construed
as prohibiting the department from audiotaping or videotaping an interview of a
child on any case for which such audiotaping or videotaping is not required
under this paragraph. The fact that the department failed to audiotape or
videotape an interview is admissible at the trial of the offense that is the
subject of the interview;
(2) an
interview with the alleged perpetrator unless the investigator has already
determined that there was no abuse, neglect, or exploitation or the risk of the
same does not exist; and
(3)
consultation with persons thought to have knowledge of the
circumstances.
(j) An
investigation shall address the issues set forth in the:
(1) Human Resources Code, §48.038(a),
concerning elderly or disabled persons; or
(2) Family Code, §
261.401,
concerning children.
(k)
If during the course of the investigation it becomes apparent that the
allegation is frivolous or patently without factual basis, the investigation
may be closed as unfounded with supervisory approval. The reason for this
determination, based on specific evidence, will be included in the
report.
(l) If there is not a
preponderance of the evidence to indicate that an allegation should or should
not be confirmed, due to lack of witnesses or other available evidence, a
finding of inconclusive may be used with supervisory approval.
(m) If during the course of the investigation
it becomes apparent that abuse, neglect or exploitation has not occurred or is
not likely to occur, the investigation may be closed as unfounded with
supervisory approval.
(n) An
investigative report shall indicate "perpetrator unknown" in those incidences
where the preponderance of evidence exists to confirm abuse, neglect, or
exploitation but positive identification of the person responsible cannot be
determined and self injury has been eliminated as the cause. Evidence must
exist that abuse, neglect, or exploitation has been committed for the term
"perpetrator unknown" to be used.
(o) The department shall make a reasonable
effort to notify each parent and legal guardian, if one has been appointed, of
the nature of the allegation, that the interview or examination was conducted,
and of the disposition of the investigation.
(1) When during an investigation of a report
of suspected child abuse or neglect a representative of the department conducts
an interview with or an examination of a child, the department shall make a
reasonable effort before 24 hours after the time of the interview or
examination to notify each parent of the child and the child's legal guardian
of the nature of the allegation and of the fact that the interview or
examination was conducted.
(2) If a
report of suspected child abuse or neglect is administratively closed by the
department as a result of a preliminary investigation that did not include an
interview or examination of the child, the department shall make a reasonable
effort before the expiration of 24 hours after the time the investigation is
closed to notify each parent and legal guardian of the disposition of the
investigation.
(3) The notice
required by paragraphs (1) and (2) of this subsection is not required if the
department determines that the notice is likely to endanger the safety of the
child who is the subject of the report, the person who made the report, or any
other person who participates in the investigation of the report.
(4) The notice required by paragraphs (1) and
(2) of this subsection may be delayed at the request of a law enforcement
agency if notification during the required time would interfere with an ongoing
criminal investigation.
