Current through Reg. 50, No. 13; March 28, 2025
(a) If a report required by § 41.701(c)
of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or
Exploitation of an Individual) alleges abuse, neglect, or exploitation of an
individual by a staff person or a controlling person; or if an FMSA is notified
by HHSC of an allegation of abuse, neglect, or exploitation by a staff person
or a controlling person, the FMSA must:
(1)
take actions to secure the safety of the individual, including if necessary,
ensuring that the alleged perpetrator does not have contact with the individual
or any other individual receiving services from the FMSA until HHSC completes
the investigation; and
(2) preserve
and protect evidence related to the allegation.
(b) Within one working day after receiving
the initial intake report from HHSC for an allegation of abuse, neglect, or
exploitation described in subsection (a) of this section, the FMSA must send a
copy of the report by fax or secure email to:
(1) the program director of the entity
employing the individual's case manager for an individual enrolled in the CLASS
Program or the DBMD Program;
(2)
the rights protection officer, as required by § 4.113 of this title
(relating to Rights Protection Officer at a State MR Facility or MRA), of the
LIDDA employing the individual's service coordinator for an individual enrolled
in the HCS Program or the TxHmL Program; or
(3) the individual's HHSC regional office for
an individual enrolled in the PHC Program, the CAS Program, or the FC
Program.
(c) During an
HHSC investigation of an alleged perpetrator who is a staff person or
controlling person:
(1) an FMSA must:
(A) cooperate with the investigation as
requested by HHSC, including providing documentation and participating in an
interview;
(B) provide HHSC access
to:
(i) sites owned, operated, or controlled
by the FMSA;
(ii) staff persons and
controlling persons; and
(iii)
records pertinent to the investigation of the allegation; and
(C) ensure that staff persons and
controlling persons comply with subparagraphs (A) and (B) of this paragraph;
and
(2) the employer or
DR must:
(A) cooperate with the investigation
as requested by HHSC, including providing documentation and participating in an
interview;
(B) provide HHSC access
to:
(i) service providers; and
(ii) records pertinent to the investigation
of the allegation; and
(C) ensure that service providers comply with
subparagraph (A) of this paragraph.
(d) For an individual enrolled in:
(1) the DBMD Program or CLASS Program, a
program director is required to give the initial intake report received from
the individual's FMSA to the individual's case manager as described in §
42.401 of this title (relating to Protection of Individual) or § 45.702 of
this title (relating to Protection of Individual, Initial and Annual
Explanations, and Offering Access to Other Services); or
(2) the HCS Program or TxHmL Program, a
rights protection officer is required to give the initial intake report
received from the individual's FMSA to the individual's service coordinator as
described in § 9.190 of this title (relating to LIDDA Requirements for
Providing Service Coordination in the HCS Program) or § 9.583 of this
title (relating to TxHmL Program Principles for LIDDAs).
(e) A case manager or service coordinator who
receives an initial intake report must:
(1)
within four working days after receiving the report, convene a service planning
team meeting in person or by phone to review the report and discuss the actions
the employer has taken or will take, which may include:
(A) transferring to a different FMSA in
accordance with § 41.403 of this chapter (relating to Transfer Process) to
protect the individual during the HHSC investigation; and
(B) requesting a voluntary suspension of
participation in the CDS option in accordance with § 41.405 of this
chapter (relating to Suspension of Participation in the CDS
Option);
(2) document in
writing any actions that have been or will be taken as a result of the
allegation; and
(3) if appropriate,
recommend termination of the CDS option in accordance with § 41.407 of
this chapter (relating to Termination of Participation in the CDS
Option).
(f) After an
FMSA receives a final investigative report from HHSC for an investigation
described in subsection (c) of this section, the FMSA must:
(1) within one working day after receiving
the report, send a copy of the report by fax or secure email to:
(A) the program director of the entity
employing the individual's case manager for an individual enrolled in the CLASS
Program or the DBMD Program;
(B)
the rights protection officer, as required by § 4.113 of this title, of
the LIDDA employing the individual's service coordinator for an individual
enrolled in the HCS Program or the TxHmL Program; or
(C) the individual's HHSC regional office for
an individual enrolled in the PHC Program, the CAS Program, or the FC Program;
and
(2) within five
working days after receiving the report:
(A)
use the report to complete HHSC Form 1719, Notification of Investigatory
Findings;
(B) send the completed
form to the alleged perpetrator; and
(C) take action within the FMSA's authority
in response to the HHSC investigation, including, disciplinary action against a
staff person confirmed to have committed abuse, neglect, or
exploitation.
(g) For an individual enrolled in:
(1) the DBMD Program or CLASS Program, a
program director is required to give the final investigative report received
from the individual's FMSA to the individual's case manager as described in
§ 42.401 of this title or § 45.702 of this title; or
(2) the HCS Program or TxHmL Program, a
rights protection officer is required to give the final investigative report
received from the individual's FMSA to the individual's service coordinator as
described in § 9.190 of this title or § 9.583 of this
title.
(h) If a final
investigative report confirms the allegation, contains an inconclusive finding,
or includes concerns and recommendations, a case manager or service coordinator
must:
(1) within four working days after
receiving the report, convene a service planning team meeting in person or by
phone to discuss the content of the report, including any concerns and
recommendations by HHSC; and
(2)
document in writing any actions that have been or will be taken by the employer
as a result of the findings in the report or the concerns and recommendations
by HHSC.
(i) An FMSA must
not retaliate against:
(1) a staff person,
individual, or other person who files a complaint, presents a grievance, or
otherwise provides good faith information relating to the possible abuse,
neglect, or exploitation of an individual, including:
(A) the use of seclusion; and
(B) the use of a restraint not in compliance
with federal and state laws, rules, and regulations; and
(2) an individual because a person on behalf
of the individual files a complaint, presents a grievance, or otherwise
provides good faith information relating to the possible abuse, neglect, or
exploitation of an individual, including:
(A)
the use of seclusion; and
(B) the
use of a restraint not in compliance with federal and state laws, rules, and
regulations.
(j) At least annually, an FMSA must review
all final investigative reports from HHSC for investigations described in
subsection (c) of this section and, based on the review, identify program
process improvements that help prevent the occurrence of abuse, neglect, and
exploitation and improve the delivery of FMS.
