3000 Scope and Eligibility
APS January 2022
Chapter 48, Title 2, Texas Human Resources Code (HRC) authorizes APS to do the following:
- Investigate the abuse, neglect, or financial exploitation of people age 65 or older and adults with disabilities.
- Provide protective services to those people.
Protective services are any actions taken to explore, develop, purchase, or arrange services for clients to alleviate abuse, neglect, or financial exploitation. The APS investigation is not considered a protective service.
APS clients do not have to meet financial eligibility requirements to receive protective services.
When APS receives an intake, the APS specialist determines whether the client, alleged perpetrator, and allegation meet criteria for an APS investigation.
APS provides referrals to local community resources, if available, but does not investigate if either of the following applies:
- The person is younger than age 65 and is not an adult with a disability that substantially impairs the ability to live independently or provide for his or her own self-care or protection.
- The allegation is not consistent with the APS definition of abuse, neglect, or financial exploitation.
When an intake does not meet APS criteria for an investigation, APS refers the allegation to the appropriate investigative entity.
See:
3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation
8623 Financial Exploitation Allegations
10911 Client’s Budget and Financial Resources
3100 Client Eligibility
APS January 2022
APS investigates allegations of abuse, neglect, and financial exploitation and provides protective services, regardless of race, creed, color, or national origin, to people who meet any of the following criteria:
- Age 65 or older.
- Age 18-64 with a mental, physical, intellectual, or developmental disability that substantially impairs the ability to live independently or provide for their own self-care or protection.
- Emancipated minors with a mental, physical, intellectual, or developmental disability that substantially impairs the ability to live independently or provide for their own self-care or protection.
APS clients do not have to meet financial eligibility requirements.
See 40 Texas Administrative Code §705.101.
Reporters of abuse, neglect, or financial exploitation sometimes do not provide sufficient information for APS to determine an adult’s level of impairment from a disability. APS must assess the adult’s level of impairment to determine whether the person meets APS eligibility criteria.
See 10911 Client’s Budget and Financial Resources.
3110 Automatic Eligibility
APS September 2022
Adults age 65 or older are automatically eligible for APS services based on their age.
A person is automatically considered substantially impaired when one of the following applies:
- He or she is diagnosed with an intellectual disability or has an IQ below 70.
- He or she has a legal guardian of the person or estate. This excludes temporary guardianships as outlined in 3120 Substantial Impairment, Temporary Guardianship and APS Eligibility.
- He or she has been determined to qualify for one or more of the following Medicaid waiver programs:
- State of Texas Access Reform + PLUS Home and Community Based Services (STAR+PLUS HCBS)
- Medically Dependent Children Program (MDCP)
- Deaf Blind with Multiple Disabilities (DBMD)
- Community Living Assistance and Support Services (CLASS)
- Home and Community-based Services (HCS)
- Texas Home Living (TxHmL)
- Youth Empowerment Services (YES)
The threshold to qualify for Medicaid waiver programs is higher than it is for other provider services. A person is not automatically eligible for APS services if he or she qualifies for provider services that are not Medicaid waiver programs, such as:
- Community Attendant Services (CAS)
- Family Care (FC)
- Primary Home Care (PHC)
- Other sources of provider services, such as home health services through a physician’s order.
For more information on Medicaid community services waiver programs, see Texas Medicaid and CHIP Reference Guide.
See 3340 Home and Community-Based Services and Consumer Directed Services.
3120 Substantial Impairment
APS March 2024
If the adult does not meet any of the automatic eligibility criteria (as defined in 3110 Automatic Eligibility), the APS specialist determines whether the adult is substantially impaired by completing the following actions:
- Assessing whether the adult has a physical, mental, intellectual, or developmental disability.
- Assessing whether the adult’s disability causes a long-lasting and considerable inability to live independently or provide self-care or self-protection.
- Asking the adult and collaterals (such as family members, medical professionals, and so on), as appropriate, about whether the adult can consistently perform all of the activities necessary to live independently and provide self-care and self-protection.
Texas Human Resources Code §48.002(a)(8)
Title 40, Texas Administrative Code §705.101
To be considered substantially impaired, an adult age 18 to 64 (or an emancipated minor) must have a mental, physical, intellectual, or developmental disability, as indicated by one of the following:
- A medical condition.
- Professional diagnosis.
- Reported or observed behavior that is consistent with such a condition or diagnosis.
Determining Substantial Impairment
In order for the person to be considered substantially impaired, the disability must cause a long-lasting and considerable inability to live independently, provide self-care, or provide self-protection from harm.
To determine an adult’s ability to live independently, provide self-care, or protect self from harm, the APS specialist considers whether the adult has either of the following characteristics:
- A physical limitation.
- A mental, intellectual, or developmental impairment that prevents or limits the ability to complete daily activities.
The APS specialist considers whether the adult’s ability to complete any of the following physical activities is limited:
- Using a phone.
- Shopping.
- Cooking or preparing food.
- Housekeeping.
- Administering medications.
The APS specialist also considers whether a possible mental, intellectual, or developmental impairment limits the adult’s ability to complete any activities, such as the following:
- Dressing in clothing appropriate for the weather.
- Obtaining needed medical services, support services, or transportation.
- Making sound decisions.
- Preventing harm to self or others, including seeking assistance to resolve situations and issues that threaten his or her well-being.
- Obtaining and maintaining shelter.
- Understanding the consequences of his or her actions.
If an adult age 18 to 64 (or an emancipated minor) is unable or unwilling to perform one or more of these activities, or can only perform them with direction or support from others, then he or she may be unable to live independently or provide self-protection from harm. The APS specialist must assess the adult’s entire situation to determine whether he or she is substantially impaired.
In cases where it is difficult to determine whether the adult is able to live independently or provide self-care, the specialist considers the adult’s degree of vulnerability, such as the ability to protect himself or herself.
The APS specialist does not use purchased client services (PCS) funds to obtain a professional medical or mental health assessment to determine whether someone is substantially impaired. If there is doubt, the APS specialist accepts the person as eligible for APS.
See:
3230 Financial Exploitation (EXPL) Allegations
4230 HHSC Provider Investigations (PI)
Sensory Impairment and APS Eligibility
Sensory impairments can affect communication, social skills, self-protection, and a person’s ability to live independently. However, a sensory impairment does not automatically qualify someone for APS services. The APS specialist assesses whether a person who is age 18-64, and has a sensory impairment, is substantially impaired.
Intellectual or Developmental Disability
To determine whether an adult has an intellectual or developmental disability (IDD), the APS specialist may contact collaterals, such as the following:
- The adult’s physician.
- Family members.
- Staff at the last school district the adult attended.
- Staff at the local intellectual and developmental disabilities authority (LIDDA).
These collaterals may be able to provide records, including the following:
- Determination of Intellectual Disability (DID), formerly known as Determination of Mental Retardation (DMR).
- Results of intellectual quotient (IQ) tests, such as the Wechsler Intelligence Scale for Children (WISC) or Wechsler Adult Intelligence Scale (WAIS).
Temporary Guardianship and APS Eligibility
A person is not automatically eligible for APS services if he or she has a temporary guardian. A temporary guardianship expires after 60 calendar days, unless a court extends the time.
When a temporary guardianship is in place, the APS specialist assesses whether the person who is age 18 to 64 (or an emancipated minor) has a substantial impairment, as outlined above.
Employment and APS Eligibility
Employment does not automatically prevent someone from being eligible for APS services.
If a person is age 18-64 (or an emancipated minor) and is employed or able to work, the APS specialist assesses whether the person is substantially impaired.
Disability Payments and APS Eligibility
Adults who receive Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), or other types of disability payments (such as veterans’ benefits or workers’ compensation) do not automatically meet APS eligibility criteria.
APS assesses adults (and emancipated minors) receiving these disability payments to determine whether they are substantially impaired.
See 3120 Substantial Impairment.
Substance Use Disorder and APS Eligibility
Substance use disorder (such as excessive use of alcohol, prescription medications, or illegal drugs), in and of itself, is not a disability. The APS specialist assesses whether the substance abuse caused the person to be substantially impaired.
APS conducts an investigation involving an adult (or an emancipated minor) with substance use when all of the following apply:
- The substance use has resulted in a mental or physical disability.
- The mental or physical disability has led to a long-lasting and considerable inability to live independently or provide self-care or self-protection.
- There is an allegation of abuse, neglect, or financial exploitation.
If the person is not substantially impaired, the APS specialist does as follows:
- Refers the person to the appropriate community resources.
- Closes the case in the IMPACT system as Does Not Meet Definition of APS.
See:
Examples of What Is and Is Not Considered Substantial Impairment
The following tables explain the types of situations that do or do not meet the APS criteria for substantial impairment.
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
A 35-year-old man broke both legs in a car accident, is using a wheelchair to ambulate (move around), and needs assistance with some activities of daily living, but is expected to make a full recovery. |
No |
|
A 52-year-old man lives with his wife and has a heart condition. He is unable to work and occasionally has difficulty with certain tasks, such as cleaning and doing laundry. He can drive, cook, and bathe and groom himself. |
No |
|
A 56-year-old man is diagnosed with ALS. His condition is rapidly deteriorating. At this time, he can perform only a few simple tasks related to self-care. His prognosis is poor. |
Yes |
|
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
A 45-year-old woman has a diagnosis of bipolar disorder, which is controlled with medication. She lives alone and has no physical limitations. She occasionally fails to take her medication, which concerns her friends but has not resulted in harmful activities. |
No |
|
A 23-year-old man suffered a traumatic brain injury in a car accident. He has regained the ability to walk and talk but is not expected to regain his ability to perform more complex tasks, such as shopping, driving, or managing money. |
Yes |
|
A 32-year-old woman has been diagnosed with bipolar disorder and major depressive disorder. She exhibits delusions and paranoia. Her house is filthy. She doesn’t bathe. Although her family gives her food, she believes it is poisoned. She has lost a lot of weight in just a few months. Although she has a psychiatrist, she does not make or keep appointments. |
Yes |
|
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
An 18-year-old had a tumor removed and has temporary vision loss as a result of the tumor and surgery. She needs assistance with certain tasks, such as administering medications, transportation, and paying bills. She is expected to make a full recovery. |
No |
|
A 57-year-old is completely deaf, is unable to read, and uses hand gestures as an informal kind of sign language for communication. She is socially isolated, is unable to drive, and has difficulty completing tasks with multi-step instructions, such as using the public transportation system. She relies on a caretaker to assist with tasks such as scheduling and attending appointments, arranging for services, grocery shopping, and arranging transportation. |
Yes |
|
A 37-year-old was born deaf, lives alone, and uses American Sign Language (ASL). She uses a smart watch and phone and has a video doorbell. She drives, works full-time, and is able to complete all daily tasks independently. |
No |
|
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
A 24-year-old man has autism spectrum disorder (ASD) and has a history of aggression and seizures. His cousin has medical power of attorney and wants him “detoxed” off all his medications against medical advice. He has lived in seven or eight group homes and been hospitalized several times because of medication issues possibly related to the cousin’s attempts to stop all medications. |
Yes |
|
A 50-year-old woman has Down syndrome. With supports through an HHSC Medicaid waiver program, she lives independently and receives services. Lately, her neighbors have noticed that she is wandering the streets alone but appears to be well-fed and clean in appearance. |
Yes |
|
A 45-year-old man has an IQ of 65. He receives case management through the local mental health authority. He has always lived with his mother, who recently passed away. While he is physically capable of performing basic activities of daily living, such as bathing, dressing, and grooming, he often chooses not to do so. His mother was his representative payee, prepared all the meals, and did all the housework. |
Yes |
|
A 19-year-old woman has autism spectrum disorder (ASD). She has no physical limitations. She lives in her own apartment, attends the local community college, and manages her own money. |
No |
|
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
A 17-year-old emancipated minor is reported to be using illegal drugs on a regular basis and causing minor vandalism in the neighborhood. It is believed he lives with a friend in the neighborhood. |
No |
|
A 64-year-old woman drinks an excessive amount of alcohol and has done so for many years. She was recently diagnosed with liver disease. Her neighbors have noticed a steady deterioration in the condition of her property. She is often seen dirty and disheveled while out walking the streets, talking to herself, and unaware of her surroundings. |
Yes |
|
| Situation |
Substantial Impairment? |
Justification |
|---|---|---|
A 43-year-old woman is unable to work after a car accident, because of multiple injuries. Her family is assisting with activities of daily living, as needed, but she is expected to make a full recovery. |
No |
|
A 34-year-old woman has an IQ of 65, uses a wheelchair, and works as a greeter at a local Walmart for 10 hours a week. She is able to live alone, provide self-care, administer her own medications, and maintain part-time employment. |
Yes |
|
A 53-year-old man depends on supplemental oxygen. When he has oxygen supplies, he works and lives independently. Without the oxygen supplies, he is unable to work or perform his activities of daily living (ADLs). He recently lost his job and can no longer afford the oxygen supplies. |
Yes |
|
3200 Allegations
APS March 2024
An allegation is an assertion that a person (client) is in a state of harm, or at risk of harm, because of abuse, neglect, or financial exploitation.
DFPS Rules, 40 TAC §705.101(2)
If an adult (or an emancipated minor) is eligible for an APS investigation and protective services, the APS specialist assesses whether the allegation is consistent with the definition of abuse, neglect, or financial exploitation. If it is, then the APS specialist investigates the allegation.
APS investigates an allegation only if it meets all of the following criteria:
- Meets the definition of abuse, neglect, or financial exploitation in 40 Texas Administrative Code §705.
- Indicates that the alleged perpetrator is in a position to abuse, neglect, or financially exploit the client, if the allegation is not self-neglect.
- Indicates that the client is being abused, neglected, or financially exploited, or is at risk of being abused, neglected, or financially exploited in the near future (within one month).
See:
3230 Financial Exploitation (EXPL) Allegations
3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation
8620 Determination of the Validity of the Allegation
13110 Rapid Closure Codes and Disposition of Other
Situations That APS Does Not Investigate
Suicide Threat
APS does not investigate threats of suicide. DFPS refers these situations to the appropriate first responders.
Self-Neglect of Mental Health
APS does not investigate self-neglect of mental health. This includes when a person fails to participate in mental health treatment, such as by not taking prescribed medications.
However, when a caretaker prevents a client from participating in mental health treatment, APS investigates neglect by the caretaker.
Also, APS may address mental health when it is a contributing factor to, or a root cause of, abuse, neglect, or financial exploitation.
Substance Use Disorder
APS does not investigate substance use, such as alcoholism or illegal drug use.
However, APS may address substance use when it is a contributing factor to, or a root cause of, abuse, neglect, or financial exploitation.
See Substance Use Disorder and APS Eligibility in 3120 Substantial Impairment.
Assessing Allegations
APS does not have a time limit for investigating or not investigating an allegation of abuse, neglect, or financial exploitation. APS determines on a case-by-case basis whether it is appropriate to close an intake without a full investigation.
The APS specialist does as follows:
- Assesses whether the allegation appears to meet the definition of abuse, neglect, or financial exploitation.
- Assesses the role of the alleged perpetrator, if the allegation is not self-neglect, to determine whether he or she is any of the following:
- Caretaker of the client.
- Family member of the client.
- Person who has an ongoing relationship with the client.
- Determines whether the alleged perpetrator is still in a position to abuse, neglect, or financially exploit the client.
- Determines whether the client is currently being abused, neglected, or financially exploited, or is at risk of abuse, neglect, or financial exploitation in the near future (within one month).
- Completes a thorough investigation to determine whether the alleged maltreatment occurred, or refers the allegation to another investigating authority, as outlined in Investigation by Another Authority, below.
APS Investigation Regardless of Alleged Perpetrator’s Access to Client
APS investigates, regardless of whether the alleged perpetrator is still in a position to abuse, neglect, or financially exploit the client, when possible past financial exploitation currently prevents the client from qualifying for long-term care coverage from Medicaid to pay nursing home costs.
Investigation by Another Authority
The APS specialist refers the situation to the proper investigating authority when either of the following applies:
- The alleged maltreatment does not meet the definition of abuse, neglect, or financial exploitation.
- Both of the following apply:
- The alleged perpetrator is no longer in a position to abuse, neglect, or financially exploit the client.
- The client is not being abused, neglected, or financially exploited and is not at risk of abuse, neglect, or financial exploitation in the near future (within one month).
See:
3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation
8400 Referrals to Law Enforcement
13110 Rapid Closure Codes and Disposition of Other
3210 Neglect Allegations
APS September 2022
Neglect means failing to provide the goods or services, including medical services, that are necessary to avoid physical or emotional harm or pain. This includes the following:
- A person failing to provide the necessary goods or services for himself or herself (known as self-neglect).
- A caretaker failing to provide the necessary goods or services (known as caretaker neglect).
DFPS Rules, 40 TAC §705.101(20)
Types of Neglect
Physical Neglect (PHNG): The failure to adequately provide goods or services to avoid emotional harm or physical injury.
Medical Neglect (MDNG): The failure to adequately provide for or obtain medical treatment necessary to avoid physical or emotional harm, or pain.
Examples of Neglect
- The client is diabetic and has only enough insulin left for the day (medical neglect).
- The client has decubiti (bedsores) that require a change in position every four hours. The caretaker fails to perform this task, but there is no harm or injury (physical neglect).
- The caretaker fails to lock the client’s wheelchair after a bath, but there is no harm or injury (physical neglect).
- The caretaker leaves the client in the car at the grocery store while the caretaker shops. The outdoor temperature is 90 degrees, but the client does not suffer any harm or injury (physical neglect).
- The client has an intellectual disability and schizophrenia and requires medication to prevent hallucinations and aggressive behavior. The caretaker fails to get the client’s medication (medical neglect).
- The client is non-compliant with mental health treatment and exhibits threatening behavior towards the neighbors in the apartment complex. As a result of the client’s behavior, the apartment complex is evicting the client (physical neglect).
- The client has a mental health disorder, severe diabetes, and wounds on her lower extremities that require medical attention. The client is exhibiting paranoia toward her physician and refuses treatment for her diabetes and wounds (medical neglect).
See:
Valid/No Fault under Codes for Allegation Dispositions in 8610 Allegation Disposition (Finding)
3220 Abuse Allegations
APS March 2024
When the alleged perpetrator is a caretaker, family member, or another person who has an ongoing relationship with the client, abuse is defined as either of the following:
- The negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to the client.
- Sexual abuse of the client, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code, Section 21.08 (Indecent Exposure) or Texas Penal Code, Chapter 22 (Assaultive Offenses).
An alleged perpetrator’s actions are not considered to be abuse if they meet the following criteria:
- The alleged perpetrator reasonably believes the actions to be immediately necessary to avoid imminent harm to self or others.
- The actions are limited only to those actions reasonably believed to be necessary under the existing circumstances.
Types of Abuse
Emotional or Verbal Abuse (EMAB): Any act or use of verbal or other communication, including intimidation, that causes physical or emotional harm or pain. This includes any act or communication that would cause a reasonable person in a similar situation physical or emotional harm or pain.
Physical Abuse (PHAB): The negligent or willful infliction of injury, unreasonable confinement, or cruel punishment with resulting physical or emotional harm or pain.
Sexual Abuse (SXAB): Any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code, Section 21.08 (Indecent Exposure) or Texas Penal Code, Chapter 22 (Assaultive Offenses).
There is no consent when any of the following applies:
- The alleged perpetrator knew or should have known that the client is incapable of consenting because of impairment in judgment due to mental or emotional disease or defect.
- Consent was induced by force or threat against any person.
- The client was unconscious or physically unable to resist.
- The alleged perpetrator intentionally impaired the client by administering any substance without the client knowledge.
- Consent was coerced due to fear of retribution or hardship, or by exploiting the emotional dependency of the client on the alleged perpetrator.
Examples of Abuse
- The client has decubiti (bedsores) that require a change in position every four hours. The caretaker fails to perform this task. The decubiti worsen, and the client develops sepsis (an infection and illness—physical abuse).
- The caretaker fails to lock the client’s wheelchair after a bed bath. The client falls and breaks her arm (physical abuse).
- The client’s grandson strikes him on the head with a closed fist. There is no visible injury, but the client is visibly scared of being hit again (physical abuse).
- The caretaker threatens to beat up the client if the client doesn’t clean the house. The client is afraid of being harmed (emotional or verbal abuse).
- The client has an intellectual disability and lacks understanding of appropriate social interactions. The caretaker raises his fist at the client, in a threatening manner, every time the client does something the caretaker does not like. Due to the client’s disability, he does not perceive the motion as threatening; however, a reasonable person would find the caretaker’s action to be intimidating (emotional or verbal abuse).
- The client has an intellectual disability and lacks understanding of appropriate social interactions. The caretaker engages in sexual activity with the client despite knowing the client is incapable of consenting (sexual abuse).
See:
8400 Referrals to Law Enforcement (Children’s Advocacy Centers (CACS))
8610 Allegation Disposition (Finding) (Valid/No Fault under Codes for Allegation Dispositions)
3230 Financial Exploitation (EXPL) Allegations
APS March 2024
Financial exploitation is defined as the illegal or improper act or process of the alleged perpetrator using, or attempting to use, the resources of the client, including the client’s Social Security number or other identifying information, when all the following apply:
- The alleged perpetrator is a caretaker, family member (including a spouse), or another person who has an ongoing relationship with the client.
- The alleged perpetrator used, or attempted to use, the resources for monetary or personal benefit, profit, or gain.
- The alleged perpetrator used, or attempted to use, the resources without the informed consent of the client.
There is no informed consent when the consent is any of the following:
- Not voluntary.
- Induced by deception or coercion, such as situations of undue influence.
- Given by a client who the alleged perpetrator knows or should have known is unable to make informed and rational decisions because of lack of capacity, diminished capacity, or mental disease or defect.
Resources include, but are not limited to, the following:
- Cash.
- Money from checking or savings accounts.
- Certificates of deposit or other interest-earning or investment accounts.
- Credit cards, debit cards, or electronic benefits such as a food stamp card.
- Property may also be considered a resource if it has monetary value from which the alleged perpetrator derives personal benefit, profit, or gain.
Financial exploitation does not include theft as defined in the Texas Penal Code, Chapter 31 (Theft). The APS specialist does not investigate theft but refers the matter to law enforcement.
Examples of Theft and Fraud
The following table provides examples of theft and fraud and identifies when APS investigates the situation as financial exploitation.
| Situation |
Does APS Investigate as Financial Exploitation? |
Justification |
|---|---|---|
A caretaker asks a client for her Social Security number to complete some paperwork for the doctor’s office, and then uses the Social Security number to open credit cards in the client’s name. |
Yes |
The client consented to give the caretaker her Social Security number, and the caretaker used the client’s information to obtain credit. The client did not consent to opening credit accounts. The caretaker was able to gain new credit using the client’s information, but this is not theft under the Penal Code. If the caretaker had seen the client’s information in a file and had taken it without the client’s knowledge, the incident would be identity theft (fraud), not financial exploitation. |
A caretaker takes a client’s Social Security number and driver license number from the client’s wallet while the client is sleeping. The caretaker then uses the information to open credit cards. |
No |
The client’s information was taken without her permission (theft). APS does not investigate theft. The APS specialist refers the allegations by phone to law enforcement and closes the case as Does Not Meet Definition. |
A client leaves her rings on the counter after washing dishes. When she goes to get them later that evening, the rings are gone. The only person who was in the client’s home is the client’s grandson. |
No |
The client’s belongings were taken without her knowledge or permission (theft), most likely by her grandson. APS does not investigate theft. The APS specialist refers the allegations by phone to law enforcement and closes the case as Does Not Meet Definition. |
The client gave his sister his checkbook to pay the client’s bills. The sister then uses the client’s checkbook to make purchases for herself. The client did not consent to his sister using his checks for herself. |
Yes |
The client consented to his sister writing checks from his checkbook to pay his bills. The client did not consent to his sister using his checks for herself. The sister was able to make purchases for herself using the client’s checkbook. This is considered an improper act, but not theft under the Penal Code. If the sister had seen the client’s checkbook and taken it without the client’s knowledge, the incident would be theft, not financial exploitation. |
See:
4211.1 Financial Exploitation of a Resident of a Nursing Home
8623 Financial Exploitation Allegations
12160 Requesting a Transaction Hold from a Financial Institution
Financial Exploitation and Medicaid Eligibility
Financial exploitation may affect whether a client is eligible for Medicaid. The APS specialist needs to be aware of this.
APS investigates allegations of financial exploitation, no matter when the alleged act occurred, if it currently affects a client’s ability to qualify for Medicaid funding to live in a nursing home.
See 8620 Determination of the Validity of the Allegation.
Fiduciary Exploitation
A common form of financial exploitation is misconduct by a fiduciary. A fiduciary is a person who formally agrees to manage another person’s money or property on his or her behalf. Common kinds of fiduciaries include the following:
- Representative payee.
- Power of attorney.
- Trustee.
Usually, a fiduciary who takes funds belonging to a beneficiary or ward for the fiduciary’s personal use is abusing the fiduciary relationship and committing financial exploitation. However, the attorney representing DFPS determines what powers the fiduciary has, according to the legal document creating the fiduciary relationship and the law. Only then is it possible to say whether a specific transfer was exploitation.
Financial Exploitation and Failure to Provide Services
APS investigates financial exploitation when a paid caretaker (not employed through an agency) fails to work his or her assigned hours. APS may also investigate allegations of self-neglect or caretaker neglect that may have resulted from inadequate services.
See:
3300 Perpetrators
3310 Perpetrators of Abuse and Financial Exploitation
APS January 2022
APS investigates abuse and financial exploitation of a person age 65 or older or an adult with a disability when the alleged perpetrator is any of the following:
- Caretaker. (Relatives and household members of the client do not automatically meet the definition of the caretaker role.)
- Family member.
- Person who has an ongoing relationship with the client.
Texas Human Resources Code (HRC) Chapter 48
Texas Administrative Code (TAC) Chapter 705
Ongoing Relationship
An ongoing relationship is a personal relationship that includes all of the following:
- Frequent and regular interaction.
- A reasonable assumption that the interaction will continue.
- An establishment of trust beyond a commercial or contractual agreement.
DFPS Rules, 40 TAC §705.101(36)
See 3320 Perpetrators of Neglect.
Establishing Perpetrators of Abuse and Financial Exploitation
The APS specialist examines the role and perceptions of both the client and alleged perpetrator to determine whether an ongoing relationship exists.
The APS specialist interviews the following people:
- Client
- Alleged perpetrator
- Collaterals (as necessary)
The purpose of the interviews is to establish that the alleged perpetrator is related to the client as any of the following:
- Caretaker.
- Family member.
- Person who has an ongoing relationship with the client.
Examples of an Ongoing Relationship
Examples of a person considered to have an ongoing relationship with the client include the following:
- Personal friend
- Paramour
- Roommate
Examples of an ongoing relationship are as follows:
- Ms. Smith rents a garage apartment from Mr. Adams, who is 82 years old. She visits Mr. Adams frequently and often shops for him. At times, she takes him to medical appointments. Occasionally, she cooks a meal and they dine together.
- Mr. Jones is 75 years old and lives next door to Mr. Garza. Mr. Garza takes Mr. Jones to the store at least once a month and speaks to Mr. Jones several times per week. Mr. Jones tells Mr. Garza when he is going out of town to visit family and asks Mr. Garza to gather his mail while he’s gone.
- Susan and John are both in their 70s and have been dating for six months.
Examples of What Is Not an Ongoing Relationship
APS does not investigate allegations against the following people when there is no ongoing relationship with the client:
- Mail carrier.
- Employer.
- Door-to-door salesperson or telemarketer.
- Landlord.
- Neighbor.
- Online-only relationship.
If there is no ongoing relationship, APS may investigate an allegation of self-neglect. However, if there is an ongoing relationship with the client, APS may investigate an allegation of abuse, neglect, or financial exploitation.
Examples of people who do not have an ongoing relationship are as follows:
- The Taylors are two brothers who live across the street from Mrs. Garcia. She says hello to the Taylors when she sees them in their yard but has no other contact with them. While there is an assumption that their interaction will continue, there is not a personal relationship with frequent and regular contact.
- Ms. Grace and Ms. James both participate in activities at the local senior center each week. While they are familiar with each other, they do not socialize at the center or otherwise. They both attend the same program each week, but they do not have a personal relationship.
- Mr. Foster is a handyman who has done various home repairs for Mr. Jensen. Mr. Foster and Mr. Jensen have no contact outside of their interactions related to the home repairs. There is not frequent and regular contact or an establishment of trust, beyond their contractual agreement.
- Mr. Johnson and Ms. Smith met through an online dating website. Mr. Johnson sends Ms. Smith $200 each week because she tells him she needs it to be able to plan a trip to visit him. Mr. Johnson and Ms. Smith communicate weekly online, but there is not a personal relationship.
In 3320 Perpetrators of Neglect, see Examples of Caretaker Relationships and Examples of What Is Not a Caretaker Relationship.
3320 Perpetrators of Neglect
APS March 2024
APS investigates neglect of a person age 65 or older, or an adult with a disability, when the alleged perpetrator is either of the following:
- The person age 65 or older or the adult with a disability (self-neglect).
- A caretaker. (Relatives and household members of the client do not automatically meet the definition of the caretaker role.)
Texas Human Resources Code (HRC) Chapter 48
Texas Administrative Code (TAC) Chapter 705
Establishing Perpetrators of Neglect
The APS specialist interviews the following people to establish the caretaker role for neglect allegations:
- Client
- Alleged perpetrator
- Collaterals (as necessary)
The APS specialist verifies that the alleged perpetrator meets either of the following criteria:
- Has accepted responsibility for the client’s protection, food, shelter, or care.
- Is privately hired (not employed through an agency) and receiving monetary compensation to provide personal care services to the client.
Examples of Caretaker Relationships
The following examples describe, but are not an exhaustive list of, conduct that establishes that an alleged perpetrator has accepted responsibility for a client’s protection, food, shelter, or care, as a caretaker:
- A 20-year-old man is unable to ambulate or perform his activities of daily living without assistance. He lives with his father. Every day, the father bathes the client, helps him to the bathroom, and cooks for him. The father’s actions establish that he accepts the responsibility of caring for his son.
- An 82-year-old woman has dementia. She is unable to manage her money without assistance. The client’s daughter, who lives out of state, manages the client’s money. The daughter pays her mother’s rent, utilities, and other bills. The daughter’s ongoing actions establish that she accepts responsibility for managing her mother’s money.
- An 86-year-old man uses a wheelchair and needs help with his activities of daily living. He privately pays a caretaker (not employed through an agency) to help him with personal care. The caretaker accepts responsibility for the man’s care by accepting the assignment to assist the man.
Examples of What Is Not a Caretaker Relationship
The following examples describe conduct that establishes that an alleged perpetrator did not accept responsibility for a client’s protection, food, shelter, or care:
- A 92-year-old man with dementia gives his estranged son’s name and phone number to the social worker for Meals on Wheels. The social worker calls the man’s son to come care for his father. The son did not maintain contact with his father. He refuses to go to his father’s home. The son’s actions establish that he did not accept responsibility for his father’s care.
- A 37-year-old woman with impaired mobility lives with a roommate. The roommate pays his half of the bills but never helps the woman with personal care. The woman fires her home health provider. She has no one to help her with her activities of daily living. The roommate never indicated that he accepts that responsibility.
3330 Minors as Perpetrators
APS March 2024
Occasionally, minors are alleged to be perpetrators of abuse, neglect, or financial exploitation against people age 65 or older and against adults with disabilities. APS establishes minors as perpetrators based on age.
APS does not investigate a minor as an alleged perpetrator, regardless of the circumstances, when the minor is either of the following:
- Nine years old or younger.
- 10-17 years old and in DFPS conservatorship.
When a minor is 10-17 years old and not in DFPS conservatorship, the APS specialist establishes the minor’s role as an alleged perpetrator in the same way as he or she would for an adult.
See:
3310 Perpetrators of Abuse and Financial Exploitation
8610 Allegation Disposition (Finding) (Valid/No Fault under Codes for Allegation Dispositions)
8620 Determination of the Validity of the Allegation
3340 Home and Community-Based Services and Consumer Directed Services
APS January 2022
Allegations involving perpetrators who provide Medicaid Home and Community-Based Services (HCBS) or Consumer Directed Services (CDS) are not within APS jurisdiction.
3400 Complaints That Do Not Allege Abuse, Neglect, or Financial Exploitation
APS January 2022
When APS receives information or concerns about situations that do not meet the definition of abuse, neglect, or financial exploitation, APS refers the information to the appropriate investigative entity. See the table below for examples.
| Complaint or Situation |
Investigative Entity |
|---|---|
Investigations conducted by other state agencies. |
The state agency named in the complaint. That agency will review the complaint according to its internal procedures. |
Policies or practices in a licensed facility. |
The licensing agency for the facility (such as HHSC). |
Waste, abuse, or fraud within the Texas Health and Human Services system. |
The Texas Health and Human Services Commission (HHSC). |
Conduct or practices by a licensed professional when there are no allegations of abuse, neglect, or financial exploitation. |
The appropriate licensing board, after consulting with the regional attorney. |
Medicaid Fraud
APS does not investigate Medicaid fraud but must report the information if APS staff witnesses it. For example, if a Medicaid client is working for cash that is not being reported to the Medicaid office, APS must report this information to the appropriate Medicaid office.
See:
14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
Appendix I: Facilities and Jurisdictions
3410 Death Allegations When There Is Not an Open APS Case
APS March 2024
APS does not investigate allegations of abuse or neglect of persons age 65 or older or of adults with disabilities that resulted in the death of that adult at the time the allegation is made, except as outlined in policy 11000 Death of a Client and its subsections, as appropriate.
3420 Consent to Medical Procedures or Treatment
APS January 2022
APS does not have legal authority to consent to any medical procedure or treatment except in limited circumstances.
Do Not Resuscitate (DNR) and Removal of Life Support
DFPS has no legal authority to consent to a DNR or removal of life support.
The APS specialist does not investigate allegations in which the only need is to consent to one (or both) of the following:
- A DNR order.
- Removing life support.
Instead, the APS specialist informs people who report such situations, including hospital personnel, about the provisions in Sections 166.088(f) and 166.039 of the Texas Health and Safety Code that allow two physicians to issue these orders.
Consent to Medical Treatment
Hospitals
APS has the authority to give legal consent to medical treatment only when both of the following apply:
- APS invoked Section 48.208 of the Texas Human Resources Code for an Emergency Order for Protective Services (EOPS) to hospitalize the person.
- The EOPS order is in effect.
The APS specialist consults with the following people before giving consent to medical treatment when APS has invoked an EOPS to hospitalize a client:
- Supervisor.
- District director or designee.
- Regional attorney (as needed).
APS has no legal authority to consent to medical treatment in any other situation.
Residential Care Facilities
APS does not investigate the need for consent to medical treatment of a person who lives in a residential care facility. These facilities include, but are not limited to, the following:
- Nursing homes.
- Assisted living facilities.
- State supported living centers.
- State hospitals.
- Intermediate care facilities for individuals with intellectual disabilities (ICF-IID).
APS refers all other situations that involve a need for consent to medical treatment to the medical facility that would provide the treatment. The medical facility follows applicable laws and internal procedures to manage these situations.
See:
12930 Surrogate Decisions in Hospitals or Nursing Homes