Texas Administrative Code
Title 25 - HEALTH SERVICES
Part 1 - DEPARTMENT OF STATE HEALTH SERVICES
Chapter 417 - AGENCY AND FACILITY RESPONSIBILITIES
Subchapter K - ABUSE, NEGLECT, AND EXPLOITATION IN TDMHMR FACILITIES
Section 417.504 - Prohibition and Definitions of Abuse, Neglect, and Exploitation
Universal Citation: 25 TX Admin Code ยง 417.504
Current through Reg. 49, No. 38; September 20, 2024
(a) Abuse, neglect, and exploitation of any person served is prohibited.
(b) Consistent with Chapter 711 of Title 40 (concerning Investigations in TDMHMR Facilities and Related Programs), the terms "abuse," "neglect," and "exploitation" are defined as follows when the alleged perpetrator is an employee, agent, contractor, or is unknown.
(1) Abuse is:
(A) physical abuse, which is:
(i) 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
served;
(ii) an act of
inappropriate or excessive force or corporal punishment, regardless of whether
the act results in a physical injury to a person served; or
(iii) the use of chemical or bodily
restraints on a person served not in compliance with federal and state laws and
regulations, including:
(I) Chapter 405,
Subchapter F of this title (concerning Voluntary and Involuntary Behavioral
Interventions in Mental Health Programs); and
(II) Chapter 405, Subchapter H of this title
(concerning Behavior Management--Facilities Serving Persons with Mental
Retardation);
(B) sexual abuse, which is any sexual
activity involving an employee, agent, or contractor and a person served,
including but not limited to:
(i) kissing a
person served with sexual intent;
(ii) hugging a person served with sexual
intent;
(iii) stroking a person
served with sexual intent;
(iv)
fondling a person served with sexual intent;
(v) engaging in with a person served:
(I) sexual conduct as defined in the Texas
Penal Code, §
43.01; or
(II) any activity that is obscene as defined
in the Texas Penal Code, §
43.21;
(vi) requesting, soliciting, or
compelling a person served to engage in:
(I)
sexual conduct as defined in the Texas Penal Code, §
43.01; or
(II) any activity that is obscene as defined
in the Texas Penal Code, §
43.21;
(vii) in the presence of a person
served:
(I) engaging in or displaying any
activity that is obscene, as defined in the Texas Penal Code §
43.21; or
(II) requesting, soliciting, or compelling
another person to engage in any activity that is obscene, as defined in the
Texas Penal Code §
43.21;
(viii) committing sexual
exploitation, as defined in the Texas Civil Practice and Remedies Code, §
81.001, against a
person served. A copy of the Texas Civil Practice and Remedies Code, §
81.001, is referenced
as Exhibit A in §
417.516 of
this title (relating to Exhibits);
(ix) committing sexual assault as defined in
the Texas Penal Code §
22.011, against a
person served;
(x) committing
aggravated sexual assault as defined in the Texas Penal Code, §
22.021,
against a person served; and
(xi)
causing, permitting, encouraging, engaging in, or allowing the photographing,
filming, videotaping, or depicting of a person served if the employee, agent,
or contractor knew or should have known that the resulting photograph, film,
videotape, or depiction of the person served is obscene as defined in the Texas
Penal Code, §
43.21, or is
pornographic; and
(C)
verbal/emotional abuse, which is any act or use of verbal or other
communication, including gestures, to curse, vilify, or degrade a person served
or threaten a person served with physical or emotional harm, that results in
observable distress or harm to the person served or be of such a serious nature
that a reasonable person would consider it harmful or causing
distress.
(2) Neglect is
a negligent act or omission by any individual responsible for providing
services to a person served, which caused or may have caused physical or
emotional injury or death to a person served or which placed a person served at
risk of physical or emotional injury or death. Neglect includes, but is not
limited to, the failure to:
(A) establish or
carry out an appropriate individual program plan or treatment plan for a person
served if such failure results in a specific incident or allegation involving a
person served;
(B) provide adequate
nutrition, clothing, or health care to a specific person served; or
(C) provide a safe environment for a specific
person served, including the failure to maintain adequate numbers of
appropriately trained staff if such failure results in a specific incident or
allegation involving a person served.
(3) Exploitation is the illegal or improper
act or process of using a person served or the resources of a person served for
monetary or personal benefit, profit, or gain.
(c) Abuse, neglect, or exploitation does not include:
(1) the proper use of restraints and
seclusion, including PMAB, and the approved application of behavior
modification techniques as described in:
(A)
Chapter 405, Subchapter F of this title, relating to Voluntary and Involuntary
Behavioral Interventions in Mental Health Programs;
(B) Chapter 404, Subchapter E of this title,
relating to Rights of Persons Receiving Mental Health Services; and
(C) Chapter 405, Subchapter H of this title,
relating to Behavior Management--Facilities Serving Persons With Mental
Retardation;
(2) other
actions taken in accordance with TDMHMR rules;
(3) such actions as an employee/agent/
contractor may reasonably believe to be immediately necessary to avoid imminent
harm to self, persons served, or other individuals if such actions are limited
only to those actions reasonably believed to be necessary under the existing
circumstances. Such actions do not include acts of unnecessary force or the
inappropriate use of restraints or seclusion, including PMAB; or
(4) general complaints (e.g., regarding
rights violations; theft of property; the daily administrative operations of a
facility). (Within 24 hours of receipt of such a complaint, the APS
investigator refers the complaint to the head of the facility using the Adult
Protective Services Referral Form, who ensures the complaint is investigated
administratively by the head of the facility, the facility rights officer, or
other appropriate parties.)
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