14000 Due Process and Release of Information
14100 Desk Review
APS January 2022
When APS validates an allegation of abuse, neglect, or financial exploitation against a designated perpetrator, including a minor, APS notifies the designated perpetrator of the findings and offers a desk review. This does not include self-neglect allegations or findings of Valid-No Fault.
The desk review is an informal review of Valid findings that the program administrator or designee conducts when APS does not intend to release the findings outside DFPS. The designated perpetrator is not present during the desk review.
The outcome of the desk review is final and cannot be appealed. Valid findings sustained through the desk review process may not be released outside DFPS, except as outlined in 14160 Release of Findings Outside DFPS After a Desk Review.
When the designated perpetrator is a DFPS employee, volunteer, or intern, or an SSCC employee, APS gives him or her the option of an expedited desk review as outlined in 14200 Expedited Desk Review for DFPS Employees and its subitems.
See 14400 Employee Misconduct Registry (EMR).
14110 Designated Perpetrators Ineligible for a Desk Review
APS January 2022
Some designated perpetrators are not eligible for a desk review but may be eligible for other types of reviews or hearings. This includes perpetrators who are any of the following:
- Subject to placement on the Employee Misconduct Registry (EMR) (see 14400 Employee Misconduct Registry (EMR)).
- Eligible for due process but not subject to placement on the EMR (see 14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases).
- School employees (see 14500 Cases Involving School Personnel).
A designated perpetrator may also be ineligible for a desk review if any of the following apply:
- The APS specialist was unable to locate the designated perpetrator during the investigation, despite reasonable efforts to do so.
- APS determined during the case that interviewing the designated perpetrator would place the client at risk of harm.
- Notifying the designated perpetrator of the finding would place the client, the reporter, or any other person who participated in the investigation at risk of serious physical or emotional harm.
- Notifying the designated perpetrator would make it impossible to provide services to the client.
Law enforcement or prosecuting attorneys may ask APS to delay the notification because of a pending criminal investigation or court proceeding.
14120 Notifications to the Designated Perpetrator
APS April 2023
Upon reaching a disposition (finding) for each allegation, the APS specialist notifies his or her supervisor by email and includes a draft of Form 2248 Notice of Findings to Designated Perpetrator. The supervisor reviews the investigation to determine whether it was thorough and the findings are correct.
The supervisor documents his or her review as a supervisor consultation, as outlined in 9600 Supervisor Consultation. The consultation includes the following, as applicable:
- Whether the supervisor agrees with the disposition for each allegation against the perpetrator.
- Whether second-level approval is needed before the APS specialist sends the notification to the designated perpetrator. See 11221 Client’s Death May Involve Valid Allegations Against a Perpetrator.
- Whether additional investigation contacts are needed.
- Whether additional evidence is needed.
- Whether the finding is appropriate or should be changed.
If the supervisor does not give approval for the APS specialist to notify the designated perpetrator, the APS specialist completes any additional case actions outlined by the supervisor. The APS specialist emails the supervisor to request that the supervisor do the following:
- Review the case again to make sure all tasks are complete.
- Review the completed notification letter (Form 2248), if applicable.
- Enter a new contact documenting his or her review.
If the supervisor agrees with the disposition for each allegation against a perpetrator and secondary approval is required, he or she adds the program administrator or designee as a secondary approver in IMPACT. Secondary approval is required if the case involves any of the following situations:
- A perpetrator’s actions may have contributed to the client’s death, regardless of the disposition or closure reason.
- A client’s death may involve Valid allegations against a perpetrator.
- A client’s death may involve new incidents related to allegations investigated or validated during the case.
See:
11220 Perpetrator’s Actions May Have Contributed to the Client’s Death
11221 Client’s Death May Involve Valid Allegations Against a Perpetrator
11223 Client’s Death May Involve New Allegations Against an Alleged Perpetrator
13200 Supervisor Review of Case Closure
After Management Approval
Once the supervisor and, if necessary, the secondary approver, have approved the case, the APS specialist notifies the designated perpetrator of the following:
- The findings of the investigation are Valid.
- The designated perpetrator is eligible to request a desk review.
The APS specialist sends the notification by certified mail, return receipt requested, and includes both of the following forms:
Form 2248 Notice of Findings to Designated Perpetrator
Form 2249 Request for a Desk Review
If APS does not know the designated perpetrator’s current mailing address, the APS specialist mails the forms to the designated perpetrator’s last known address.
If the designated perpetrator is a minor, the APS specialist mails the forms to the minor’s parent or legal guardian.
The APS specialist stores a copy of Form 2248 and the return receipt using one of the following methods:
- Uploading the documents to OneCase.
- Listing the documents on the External Documentation page and storing the hard copies in the paper case file.
See 13200 Supervisory Review of Case Closure.
When No Notification Is Needed
No notification to the designated perpetrator is needed if the APS specialist, in consultation with the supervisor, concludes that any of the following apply:
- APS cannot locate the designated perpetrator.
- APS should not notify the designated perpetrator.
- APS must delay notification because of a request by law enforcement or a prosecuting attorney.
If APS does not notify a designated perpetrator because of risk of harm to the client, the reporter, or a collateral, the specialist documents a clear explanation of that risk in the supervisor consultation in IMPACT.
14130 Timely Request for a Desk Review
APS January 2022
The designated perpetrator’s request for a desk review must be postmarked within 20 calendar days after DFPS mailed the official notice of findings (Form 2248 Notice of Findings to Designated Perpetrator). If the request is not postmarked within 20 calendar days, the designated perpetrator has forfeited the right to a desk review.
The regional staff must wait at least 23 calendar days and may wait up to 30 calendar days after DFPS mailed the official notice of findings before considering the desk review forfeited. This allows enough time for DFPS to receive the request and route it to the proper APS staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.
14140 Desk Review Process
APS January 2022
The program administrator or designee completes the desk review. The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.
The reviewer examines the entire case record and any external documentation. The reviewer may seek additional information from the APS specialist and supervisor involved in the case.
If the reviewer determines the investigation is incomplete, the reviewer does as follows:
- Postpones the desk review.
- Directs the APS specialist to request a data correction to reopen the case for further investigation.
If the investigation is complete, the reviewer decides to sustain, alter, or reverse the original APS findings based on the same requirements and criteria that APS specialists and supervisors use to conduct investigations and reach conclusions. The reviewer notifies the designated perpetrator of the outcome of the desk review by mailing Form 2263 Notification of Result of a Desk Review.
A desk review can occur even if the case is closed.
Time Frame for Conducting the Desk Review
The reviewer completes the desk review and notifies the designated perpetrator of the outcome within 45 calendar days of receiving the request from the designated perpetrator, unless one of the following applies:
- Court proceedings related to the abuse, neglect, or financial exploitation are in progress at the time the desk review is requested.
- Court proceedings are started after the review begins.
- The reviewer determines the investigation is incomplete and further investigation is necessary.
If court proceedings are involved, APS postpones the review until the court proceedings are completed.
DFPS makes a good faith effort to complete the review within the 45-day time frame. However, failure to do so within that time frame does not cancel the review or reverse the finding.
See 14150 Notification of Results of the Desk Review.
Notification of Delay of the Desk Review
If the review is delayed, the reviewer notifies the perpetrator in writing within 45 calendar days after APS received the request. The notification includes one of the following:
- The reason for the delay and the anticipated length of time of the delay.
- A statement that the designated perpetrator may notify APS when the court case has been completed or the criminal investigation has been closed, as appropriate.
If court proceedings are involved, the notification must also indicate that the reviewer will review the designated perpetrator’s eligibility for a review after the delay. The designated perpetrator becomes ineligible for a review after a delay only when a court makes a ruling against the designated perpetrator that is consistent with abuse, neglect, or financial exploitation related to the specific allegation for which the review was requested. Otherwise, APS must provide the review.
Example
John Smith is a designated perpetrator of physical abuse and is being prosecuted for aggravated assault. The desk review is delayed until the criminal case is complete and the judge makes a ruling. If Mr. Smith is convicted of assault, he will not receive a desk review on the physical abuse allegation because the court already found him guilty.
Documentation of the Desk Review
Within 45 days of receiving the perpetrator’s request for a desk review and any additional information that the designated perpetrator provides, the reviewer does the following:
- Creates an Administrative Review of Investigation (ARI) stage in IMPACT by choosing the Investigation (INV) stage (not the SWI Intake stage) of the case and the name of the designated perpetrator being reviewed.
- Documents the review and decision on the Administrative Appeal and Review page found under the Record Admin Review/Appeal tab in the ARI stage.
- Updates the disposition on the Allegation Detail page, if appropriate.
- Updates the case closure reason, if appropriate.
Adding a Self-Neglect Allegation After a Desk Review
The APS specialist adds an allegation of self-neglect when all of the following apply:
- The desk review alters or reverses the Valid disposition.
- The case has no self-neglect allegations with a Valid disposition.
- Services have been provided based on the allegation against the perpetrator.
If the services provided were based on an immediate intervention resulting from the allegation against the perpetrator, the APS specialist requests a data correction to move the service from the Immediate Interventions section to the Services Related to ANE section of the service plan. The specialist then links the service to a Valid self-neglect allegation.
14150 Notification of Results of the Desk Review
APS January 2022
Within 45 calendar days after receiving the request for a desk review, the reviewer sends the designated perpetrator Form 2263 Notification of Result of a Desk Review to inform him or her of the outcome of the desk review. The outcome is final and cannot be appealed. The findings of the case and outcome of the desk review are not released outside DFPS, except as outlined in 14160 Release of Findings Outside DFPS After a Desk Review.
If the desk review involved a client who has a guardian or a pending guardianship and the reviewer altered or reversed the findings, the APS specialist sends the Notification to Court of Desk Review Findings to notify the court about the alteration or reversal of the findings.
See 15124.1 Court Notification About an Investigation Involving Guardianship.
14160 Release of Findings Outside DFPS After a Desk Review
APS January 2022
In some situations, APS may release findings outside DFPS after the findings are validated and sustained through the desk review process.
If APS determines the findings need to be released outside DFPS, APS must first offer the designated perpetrator a release hearing that provides due process, as outlined in 14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases.
See:
14320 Notification of Intent to Release Findings in Non-EMR Cases
14340 Release Hearings for Non-EMR Cases
15126.1 Release of Information on Applicants to Become AFC Providers
14200 Expedited Desk Review for DFPS Employees
APS January 2022
The designated perpetrator is eligible for an expedited desk review when APS makes a Valid finding of abuse, neglect, or financial exploitation against him or her, if he or she is one of the following:
- DFPS employee.
- DFPS intern.
- DFPS volunteer.
- Single source continuum contractor (SSCC) employee.
A request for an expedited desk review must be made in a timely manner. See operating policy HR-3101 Abuse, Neglect, or Exploitation Allegations Against DFPS Employees on the DFPS intranet for more information.
The desk review is an informal review of the Valid findings against the designated perpetrator. The designated perpetrator may submit any additional information he or she would like the reviewer to consider but is not present during the review.
The outcome of the review is final and cannot be appealed. The findings are not released outside DFPS except as outlined in 14160 Release of Findings Outside DFPS After a Desk Review. The desk review is not a due process hearing. The designated perpetrator’s role in IMPACT is not changed to a sustained perpetrator as a result of the desk review.
14210 Notification of Findings to a DFPS Employee, Intern, Volunteer, or SSCC Employee
APS April 2023
Upon reaching a disposition (finding) for each allegation against a DFPS employee, intern, volunteer, or single source continuum contractor (SSCC) employee, the APS specialist emails a draft of Form 2271 Notice of Findings to DFPS Employee as Designated Perpetrator to the APS specialist’s supervisor. The APS supervisor reviews the investigation to determine whether it was thorough and the findings are correct.
The supervisor documents his or her review as a supervisor consultation, as outlined in 9600 Supervisor Consultations. The consultation includes the following, as applicable:
- Whether the APS specialist has approval to send the notification to the designated perpetrator.
- Whether additional investigation contacts are needed.
- Whether additional evidence is needed.
- Whether the finding is appropriate or should be changed.
If the supervisor does not give approval for the APS specialist to notify the designated perpetrator, the APS specialist completes any additional case actions outlined by the supervisor. The APS specialist emails the supervisor to request that the supervisor do the following:
- Review the case again to make sure all tasks are complete.
- Review the completed notification letter (Form 2271).
- Enter a new contact documenting his or her review.
After Supervisor Approval
Once the supervisor reviews and approves the notification letter (Form 2271), the APS specialist notifies the designated perpetrator of the following:
- The findings of the investigation are Valid.
- The designated perpetrator is eligible for an expedited desk review.
The APS specialist sends the notification to the designated perpetrator using both of the following methods:
- Certified mail, with return receipt requested, to the designated perpetrator’s home address.
- Email, with read receipt requested, to the following email address, as applicable:
- The designated perpetrator’s DFPS email address, if a DFPS employee.
- The designated perpetrator’s personal email address, if an intern, volunteer, or SSCC employee.
The notification includes both the following forms:
Form 2271 Notice of Findings to DFPS Employee as Designated Perpetrator
Form 2249 Request for Desk Review
If the designated perpetrator is an SSCC employee, the APS specialist notifies the CPS Purchased Client Services director by email and copies the APS specialist’s supervisor and program administrator, in addition to notifying the designated perpetrator.
14220 Timely Request for an Expedited Desk Review
APS January 2022
The designated perpetrator’s request for an expedited desk review must be received within two business days after DFPS mails the official notice of findings (Form 2271) or the date of the email read receipt (if the notice was sent to the perpetrator’s DFPS email), whichever is earlier. If the request is not received within that time frame, the designated perpetrator may still request a standard desk review (with the same criteria as for non-employees) within 20 calendar days after the official notice was mailed.
If the designated perpetrator does not request an expedited desk review within the two business days, his or her DFPS supervisor takes appropriate personnel action, which may include reassignment or dismissal.
If the designated perpetrator makes a timely request for a standard desk review, the APS specialist follows policy in 14100 Desk Review and its subitems. If the designated perpetrator chooses this option, the finding of the investigation may change, but the review will not alter any personnel action that has been taken.
Time Frame for Conducting the Expedited Desk Review
Only the district director or program administrator may complete expedited desk reviews. The reviewer completes the review within three business days of receiving a timely request for an expedited desk review. If the reviewer needs more time to complete the desk review, the reviewer notifies the APS associate commissioner or designee and requests approval.
Delay of an Expedited Desk Review
If, after reviewing the entire case, including external documentation, the reviewer determines that further investigation is needed before the review can be completed, the reviewer requests approval from the APS associate commissioner or designee.
The reviewer contacts the designated perpetrator about the delay caused by the need for further investigation using any of the following methods:
- Phone (including voicemail).
- Certified mail with return receipt requested.
- DFPS email with read receipt requested. If the designated perpetrator is a volunteer or SSCC employee, the email is sent to his or her personal email, with read receipt requested (even if the perpetrator has a DFPS email).
The reviewer is responsible for gathering any additional information needed to reach a decision about the Valid allegations against the designated perpetrator. The reviewer does not conduct a new investigation but may direct the district staff to gather additional information or reopen the case, if applicable.
Reviewer’s Responsibilities After the Expedited Desk Review
Within five calendar days of the review, the reviewer is responsible for doing all the following:
- Making the decision to sustain, alter, or reverse the original findings.
- Sending the designated perpetrator the Notification of Results of a Desk Reviewing (Form 2263) using both of the following methods:
- Certified mail with return receipt requested.
- DFPS email with read receipt requested. If the designated perpetrator is a volunteer or SSCC employee, the email is sent to his or her personal email, with read receipt requested.
- Notifying the designated perpetrator’s DFPS supervisor by email, with read receipt requested, of the outcome of the review. This email includes a copy of Form 2263.
- Documenting the review and decision in IMPACT. See the document titled Creating and Completing an ARI Stage in an APS Case on the DFPS intranet.
- If applicable, notifying a probate court of the change of finding, if notice was sent during the case because the victim has a guardian or a pending guardianship as outlined in 15124.5 Court Notification About Cases Involving a Desk Review.
14230 Consequences of Expedited Desk Review Dispositions
APS January 2022
Valid Disposition
A DFPS employee who is the perpetrator of an allegation with a Reason to Believe (RTB) (CPI) or Valid (APS) disposition may be recommended for adverse personnel action, including termination.
Before making a personnel recommendation, the employee’s supervisor makes an individualized assessment based on both of the following:
- Current job responsibilities of the employee.
- Nature of the RTB or Valid allegation.
As with any personnel action, the DFPS employee’s supervisor consults with DFPS Legal and Human Resources and follows all applicable personnel policies before taking action.
Unable to Determine Disposition
A DFPS employee who is the perpetrator of an allegation with an Unable to Determine disposition may be recommended for adverse personal action, including termination, depending on the circumstances.
The employee’s supervisor reviews the case conclusion and consults with DFPS Legal and Human Resources, as applicable.
14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases
APS September 2022
To ensure the designated perpetrator receives due process, the APS specialist provides written notification to offer the designated perpetrator the opportunity to request the following:
- An administrative review by an APS district director or designee.
- A release hearing before the State Office of Administrative Hearings (SOAH).
Release of Findings in Non-EMR Cases
DFPS may only release investigation findings to entities outside DFPS as stated in Title 40 of the Texas Administrative Code, §705.1301.
Valid
APS offers due process to a designated perpetrator in a non-EMR case only when APS wants to release a finding of Valid outside DFPS (usually to a designated perpetrator’s employer or professional board). If APS is not going to release the finding of Valid to an outside entity, APS offers a desk review as outlined in 14100 Desk Review.
This process only applies when the designated perpetrator is neither of the following:
- The designated perpetrator in a school investigation. See 14500 Cases Involving School Personnel.
- A person who is eligible to be placed on the EMR. See 14400 Employee Misconduct Registry (EMR).
Unable to Determine or Invalid
APS does not release findings of Unable to Determine or Invalid to anyone outside DFPS, except as outlined in the following policies:
14351 Release of Findings to HCSSAs and Adult Foster Care Homes
14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
15127.1 Release of Information to State Supported Living Centers (SSLC)
Designated Perpetrators in Non-EMR Cases
Examples of designated perpetrators include, but are not limited to, the following:
- Licensed professionals, such as nurses, social workers, attorneys, and psychologists.
- Certified legal guardians not employed by the Health and Human Services Commission (HHSC).
- Employees of home and community support services agencies (HCSSAs) who are not subject to placement on the EMR because their actions do not rise to the level of reportable conduct.
- HHSC guardianship specialists in their role as guardian for a person who is a ward of the HHSC Office of Guardianship Services (OGS). See 15120 Disclosure of Case Information.
- Family members or others with an ongoing relationship with a client who lives in a residential care setting, such as a nursing home, assisted living facility, or state supported living center.
- People who have employment (such as at an HCSSA, a state supported living center, a nursing home, or a state hospital) that gives them access to children or vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation.
- People to whom both of the following apply:
- The person is privately hired and paid by the client, or on behalf of the client, to provide personal care services.
- The person has other employment that allows him or her access to children or vulnerable adults and the opportunity to commit similar acts of abuse, neglect, or financial exploitation.
Due Process
The APS specialist begins due process by determining whether an emergency release of findings is required. DFPS may complete an emergency release of findings before offering Non-EMR due process to the designated perpetrator if DFPS determines that delaying the release would create an emergency because the designated perpetrator would have continuing access to vulnerable adults or children. See Title 40 of the Texas Administrative Code, §705.1301.
When an emergency release is required, the APS specialist follows policy in 14310 Emergency Release of Findings in Non-EMR Cases.
When an emergency release is not required, the APS specialist follows policy in 14320 Notification of Intent to Release Findings in Non-EMR Cases.
14310 Emergency Release of Findings in Non-EMR Cases
APS April 2023
For the purposes of this section and its subitems, an emergency is defined as abuse, neglect, or financial exploitation which, without immediate intervention, would result in a child, an adult with a disability, or an adult age 65 or older being in a state of, or at risk of, serious harm.
DFPS Rules, 40 TAC §705.1301(1)
APS may release findings outside DFPS before completing the release hearing if DFPS determines that delaying the release would create an emergency because the designated perpetrator would have continuing access to vulnerable adults or children.
The APS specialist consults with the supervisor or subject matter expert, and regional attorney, if appropriate, to determine whether an emergency release is allowed or required. The decision about whether to proceed with an emergency release of findings is documented in a supervisor or subject matter expert consultation contact in IMPACT.
The designated perpetrator is entitled to receive written notification as soon as possible and has the right to appeal the findings, as outlined below in Notice to Designated Perpetrator of Emergency Release of Findings.
If APS determines that an emergency release is necessary, the APS specialist uses Form 2241 Emergency Release of Findings to notify the employer or other entity that is allowing the designated perpetrator access to vulnerable adults or children. The notification is sent by certified mail, return receipt requested. The form outlines the following:
- DFPS’s determination that an emergency exists, and that immediate intervention is needed to prevent serious harm to vulnerable adults or children.
- The designated perpetrator’s right to appeal an investigation finding.
- The fact that APS will notify the entity if, as a result of an appeal, APS alters or reverses the finding.
The APS specialist stores copies of the forms and the return receipt using one of the following methods:
- Uploading the documents to OneCase.
- Listing the documents on the External Documentation page and storing the hard copies in the paper case file.
Emergency Release of Findings to State Supported Living Centers (SSLC)
When APS releases a finding of Valid to a state supported living center, the release is considered an emergency.
See 15127.1 Release of Information to State Supported Living Centers (SSLC).
Emergency Release of Findings Involving HCSSAs and Adult Foster Care Homes
If an emergency exists in a case involving a HCSSA or its employees, or an adult foster care home or its employees, APS releases findings before completing the administrative review or release hearing process.
The APS specialist sends Form 2241 Emergency Release of Findings to both of the following:
- HHSC Long-Term Care Regulatory Services.
- The HCSSA or adult foster care provider, as appropriate.
When emailing Form 2241 to HHSC Long-Term Care Regulatory Services, the APS specialist does the following:
- Requests a read receipt.
- Encrypts the message contents and attachments.
See:
14332 Conducting an Administrative Review in Non-EMR Cases
14350 Release of Findings in Non-EMR Cases
14351 Release of Findings to HCSSAs and Adult Foster Care Homes
Notice to Designated Perpetrator of Emergency Release of Findings
The APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the emergency release of findings to the designated perpetrator’s employer or other entity. This notification includes both of the following:
Emergency Release Notification
Form 2265 Request for an Administrative Review of Valid APS Findings
See:
14320 Notification of Intent to Release Findings in Non-EMR Cases
14341 Notification of Judge’s Decision
14350 Release of Findings in Non-EMR Cases
14320 Notification of Intent to Release Findings in Non-EMR Cases
APS September 2022
APS gives written notification of the findings to each person designated as a perpetrator when all of the following apply:
- APS has validated one or more allegations of abuse, neglect, or financial exploitation by the designated perpetrator.
- APS will release the findings outside DFPS to an employer or other entity that allows the designated perpetrator access to the client or other vulnerable adults or children.
- The designated perpetrator, as a result of the release, may be denied a right or privilege, such as employment, licensure, or certification.
DFPS Rules, 40 TAC §705.1305(a)
Upon reaching a disposition (finding) for each allegation, the APS specialist notifies his or her supervisor by email and includes a draft of Form 2204 Notification of Intent to Release.
The supervisor reviews the investigation to determine whether it was thorough, and the findings are correct.
The supervisor documents his or her review as a supervisor consultation as outlined in 9600 Supervisor Consultations. The consultation includes the following, as applicable:
- Whether the APS specialist has approval to send Form 2204 to the designated perpetrator.
- Whether additional investigation contacts are needed.
- Whether additional evidence is needed.
- Whether the finding is appropriate or should be changed.
If the supervisor does not approve sending the notification to the designated perpetrator, the APS specialist completes any additional case actions outlined by the supervisor. The APS specialist emails the supervisor to request that the supervisor do the following:
- Review the case to make sure all tasks are complete.
- Review the completed Notice of Intent to Release letter (Form 2204), if applicable.
- Enter a new contact documenting his or her review.
After Supervisor Approval
Once the supervisor reviews and approves the Form 2204 Notification of Intent to Release letter, the APS specialist notifies the designated perpetrator by certified mail, return receipt requested, of the intent to release the findings, unless DFPS determines that a more immediate method of written notification is required. This envelope includes both of the following forms:
Form 2204 Notification of Intent to Release
Form 2265 Request for an Administrative Review of Valid APS Findings
If APS does not know the designated perpetrator’s mailing address, the APS specialist mails the notification to him or her in care of the employer.
The APS specialist stores copies of the forms and the return receipt using one of the following methods:
- Uploading the documents to OneCase.
- Listing the documents on the External Documentation page and storing the hard copies in the paper case file.
14330 Administrative Review in Non-EMR Cases
APS September 2022
An administrative review is an informal review that an APS district director or designee conducts. The administrative review is required before APS offers a release hearing to the designated perpetrator.
14331 Requesting an Administrative Review in Non-EMR Cases
APS September 2022
The designated perpetrator uses Form 2265 Request for an Administrative Review of Valid APS Findings to request an administrative review and sends it to the address listed on the form. The request for an administrative review must be postmarked within 20 calendar days after the APS specialist mailed the official notice of findings (either the Emergency Release Notification or the Form 2204 Notification of Intent to Release) or the perpetrator forfeits the right to the administrative review.
If APS does not receive the request for an administrative review within 23 calendar days after the official notice was mailed, the APS specialist may release the information unless it was already released as an emergency release.
See Notice to Designated Perpetrator of Emergency Release of Findings in 14310 Emergency Release of Findings in Non-EMR Cases.
The regional staff may choose to wait 30 calendar days after DFPS mailed the official notice to receive a request but must wait at least 23 calendar days. This allows enough time for DFPS to receive the request and route it to the proper APS staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.
If APS receives the request for an administrative review in a timely manner, the reviewer sends the perpetrator an Appointment Letter for Administrative Review stating the date and time of the review.
If APS has made an emergency release and does not receive a request for an administrative review, the APS specialist sends the Final Letter of Due Process to any entity to which APS sent the emergency release.
See:
14350 Release of Findings in Non-EMR Cases
14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
Request for Records
If the request for an administrative review is received in a timely manner and indicates the designated perpetrator wants a copy of the case record, the district director or designee does the following:
- Requests a redacted copy of the case record through OneCase by choosing Administrative Review as the Request Type.
- Lists himself or herself as the caseworker in the contact information fields.
- Requests that the Entitlement Redaction Office (ERO) provide the record within 45 business days from the date the request is entered in OneCase.
The ERO sends the reviewer a link to print the redacted case record once it is available.
The reviewer mails the designated perpetrator a copy of the redacted case record.
14332 Conducting an Administrative Review in Non-EMR Cases
APS September 2022
The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.
If the designated perpetrator is an employee of HHSC who is acting as an agent for HHSC OGS, a reviewer from the APS region that conducted the investigation conducts the administrative review.
The review occurs within 30 calendar days from the date APS receives the perpetrator’s request, unless one of the following circumstances applies:
- Court proceedings related to the abuse, neglect, or financial exploitation are in progress at the time or are started after the review is requested.
- The designated perpetrator calls the reviewer no later than two days before the date of the scheduled review to request the review be postponed because he or she has not received the case record yet.
If court proceedings are involved, APS postpones the review until the court proceedings are completed.
If the designated perpetrator requests the review be postponed due to not having received a copy of the case record, the reviewer emails DFPS Records to ask that the original request be expedited.
APS makes a good faith effort to conduct the review within the 30-calendar-day time frame. However, failure to do so does not cancel the review or reverse the finding.
See 14331 Requesting an Administrative Review in Non-EMR Cases.
At the administrative review, the designated perpetrator may do any or all of the following:
- Appear in person, with or without a legal representative.
- Submit written material that is relevant to the case.
- Have DFPS provide a certified interpreter, if the perpetrator does not speak English or has a hearing impairment, or provide his or her own interpreter.
DFPS Rules, 40 TAC §705.1307(a)
The designated perpetrator pays any costs he or she may incur for the review, except for interpreter services that DFPS provides.
DFPS Rules, 40 TAC §705.1307(b)(1)
Formal rules of evidence do not apply to the administrative review. The designated perpetrator may make statements, provide information, or ask questions. The designated perpetrator may bring statements from witnesses. No live testimony from witnesses, other than the designated perpetrator, is accepted. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.
Actions After the Administrative Review
Within 45 calendar days after the administrative review, the reviewer does as follows:
- Decides to sustain, alter, or reverse the original APS findings based on the same requirements and criteria that APS specialists and supervisors use to conduct investigations and reach conclusions.
- Creates an Administrative Review of Investigation (ARI) stage in IMPACT by choosing the Investigation stage (not the SWI Intake stage) of the case and the name of the designated perpetrator being reviewed.
- Documents the review and decision on the Administrative Appeal and Review page found under the Record Admin Review/Appeal tab in the ARI stage.
- Updates the disposition on the Allegation Detail page, if appropriate.
- Updates the case closure reason, if appropriate.
For more detailed steps on creating and completing an ARI stage in IMPACT, see Creating and Completing an ARI Stage in an APS Case on the DFPS intranet.
The reviewer refers to the table below to complete the administrative review process.
| Outcome of Administrative Review |
Did APS make an emergency release? |
Actions by Reviewer |
Additional Actions if the Perpetrator Requested a Release Hearing within 20 Calendar Days after the Administrative Review |
Additional Actions if the Perpetrator Did Not Request a Release Hearing within 20 Calendar Days after the Administrative Review |
|---|---|---|---|---|
Sustained |
No |
Sends the perpetrator the Administrative Review Findings form and Request for a Release Hearing form. |
|
The reviewer sends the Request for a Release Hearing to the appropriate entity. |
Sustained |
Yes |
Sends the perpetrator the Administrative Review Findings form and Request for a Release Hearing form. |
The reviewer sends the Request for a Release Hearing and a copy of the review findings to the APS Policy mailbox. APS State Office staff forwards the request to the DFPS docket clerk in the HHSC Enforcement Department, Legal Service Division. |
The reviewer sends all entities notified during the emergency release the Final Letter of Due Process. |
Altered or Reversed |
No |
Sends the perpetrator the Administrative Review Findings form. |
N/A |
N/A |
Altered or Reversed |
Yes |
|
N/A |
N/A |
14340 Release Hearings for Non-EMR Cases
APS September 2022
If the administrative review sustains the finding, then, as the next step of due process, APS offers the designated perpetrator a release hearing before the State Office of Administrative Hearings (SOAH).
A release hearing before SOAH is a formal due process hearing conducted by an administrative law judge (ALJ). If the ALJ sustains the finding of abuse, neglect, or financial exploitation, then APS releases the finding outside DFPS. See Conducting a Release Hearing below.
Requesting a Release Hearing
If a designated perpetrator does not agree with the outcome of the administrative review, he or she may request a release hearing by mailing the Request for a Release Hearing form to the following address:
Texas Department of Family and Protective Services
Associate Commissioner of Adult Protective Services
Mail Code E-561
P.O. Box 149030
Austin, Texas 78714
The request must be postmarked within 20 calendar days after APS mailed the Administrative Review Findings form, or the designated perpetrator forfeits his or her right to a release hearing. The APS staff may choose to wait 30 calendar days after APS mailed the official notice to receive a request but must wait at least 23 calendar days. This allows enough time for APS to receive the request and route it to the proper staff member. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date APS mailed the official notice. The reviewer follows the process in 14332 Conducting an Administrative Review in Non-EMR Cases in the table under Additional Actions if the Perpetrator Requested a Release Hearing Within 20 Calendar Days After the Administrative Review.
If the designated perpetrator does not request a release hearing within 20 calendar days after APS mails the Administrative Review Findings form, the district director or designee releases the findings as outlined in 14350 Release of Findings in Non-EMR Cases.
If the designated perpetrator does not request a release hearing in a timely manner for an emergency release, the reviewer sends the Final Letter of Due Process to all entities notified during the emergency release (such as an employer and licensing board), except the designated perpetrator.
Conducting a Release Hearing
An ALJ in the State Office of Administrative Hearings (SOAH) conducts the release hearing. The director of administrative hearings in the Office of the General Counsel appoints an attorney to represent DFPS and seek a hearing date from SOAH. The attorney has authority over how DFPS presents the case and what it includes.
The hearing occurs in the region responsible for the investigation, unless the ALJ determines that there is good cause for moving the hearing.
At any time before the conclusion of the hearing, DFPS may informally dispose of the case by withdrawing it, failing to participate in it, settling it, or other actions.
The district director or designee documents the outcome of the hearing in the Administrative Review of Investigation (ARI) stage, using the procedures for documenting an administrative review.
See 14350 Release of Findings in Non-EMR Cases.
14341 Notification of Judge’s Decision
APS September 2022
If the ALJ does not find that a preponderance of the evidence shows abuse, neglect, or financial exploitation or finds that APS has designated the incorrect person as the designated perpetrator, APS changes the designated perpetrator’s designation to conform to the judge’s determination.
If the ALJ sustains the APS findings, the district director, in coordination with the regional attorney, approves the manner and content of the release of information. However, DFPS releases the finding as outlined in 14350 Release of Findings in Non-EMR Cases, before the deadline to file the motion for a rehearing in compliance with the ALJ’s order.
The ALJ sends a copy of the decision to the following people:
- Designated perpetrator or his or her representative.
- Attorney representing DFPS, who then sends the decision to the district director or designee.
The district director or designee does the following:
- Documents the final decision in the Administrative Review of Investigation (ARI) stage. (Each stage of due process will have a separate ARI stage.)
- Updates the designated perpetrator’s status in IMPACT, if appropriate.
- Determines and approves the manner, timing, and content of the release of information, in coordination with the regional attorney.
- Files the ALJ’s decision in the paper case file or uploads it to OneCase.
The designated perpetrator may be offered additional due process through the State Office of Administrative Hearing courts. (Texas Government Code, Chapter 2001).
In accordance with Texas Government Code, §2001.146, either DFPS or the designated perpetrator may file a motion for rehearing with the ALJ as outlined in 14475 Rehearing.
If a rehearing is denied or sustains the finding, the designated perpetrator may request judicial review of the ALJ’s finding as outlined in 14476 Judicial Review.
14350 Release of Findings in Non-EMR Cases
APS September 2022
Once this part of due process is complete and the finding is sustained, APS follows the decision issued by the court of the State Office of Administrative Hearings (SOAH). If the order states APS can release the information, then APS releases the finding to either, or both, of the following:
- The designated perpetrator’s employer.
- Anyone else who allows the designated perpetrator access to vulnerable adults or children.
Before disclosing case information or investigation findings to other entities, the APS specialist refers to 15100 Disclosure and Release of Case Information.
Content of Release of Findings
The APS specialist sends the Release of Findings to the designated perpetrator’s employer or other entities in a timely manner.
This form includes the following information:
- Name of the designated perpetrator.
- Nature and seriousness of the Valid allegations.
- Names of the victims of maltreatment, if appropriate.
If this release is the final release after an emergency release of the findings, the APS specialist sends the Final Letter of Due Process, which outlines the following:
- Due process has been offered or provided.
- The findings have or have not been altered or reversed.
See:
8400 Referrals to Law Enforcement
14330 Administrative Review in Non-EMR Cases
14332 Conducting an Administrative Review in Non-EMR Cases
14350 Release of Findings in Non-EMR Cases
14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
14351 Release of Findings to HCSSAs and Adult Foster Care Homes
APS January 2022
If the outcome of the non-EMR due process is to release the investigation findings, the APS specialist sends the Release of Findings to HHSC and to whichever of the following applies:
- Director or administrator of the home and community support services agency (HCSSA).
- Unlicensed adult foster home provider.
The specialist may submit the findings to HHSC by email or mail, as follows:
- HHSC Report-DFPS mailbox
- Texas Health and Human Services
Complaint and Incident Intake
Mail Code E249
P.O. Box 149030
Austin, TX 78714-9030
The APS specialist documents this notification in IMPACT and stores a copy of the Release of Findings form using one of the following methods:
- Uploading the form to OneCase.
- Listing the form on the External Documentation page and storing the hard copy in the paper case file.
If this release is the final release after an emergency release of the findings, the APS specialist also sends the Final Letter of Due Process, which outlines the following:
- Due process has been offered or provided.
- The findings have or have not been altered or reversed.
Findings Other Than Valid
If the allegations of abuse, neglect, or financial exploitation have findings of Invalid, Unable to Determine, or Other, a release hearing is not required. The APS specialist may inform an employer or licensing agency of these findings upon completion of the investigation. This notification may be verbal or written.
See:
14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases
14310 Emergency Release of Findings in Non-EMR Cases
14332 Conducting an Administrative Review in Non-EMR Cases
14350 Release of Findings in Non-EMR Cases
14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies
APS January 2022
Licensing Boards and Other Agencies
APS may release findings (Valid, Invalid, Unable to Determine, Other) of its investigations to the following, in addition to employers:
- Licensing boards.
- Commissions.
- Other agencies that give the designated perpetrator access to vulnerable adults.
Examples include, but are not limited to, the following:
- Texas State Board of Social Worker Examiners.
- Texas Board of Nursing.
- Texas Medical Board.
- State Bar of Texas.
- Texas Judicial Branch Certification Commission (for certified or provisionally certified guardians).
APS Tasks
Valid Findings
Before notifying the appropriate entity of investigation findings of Valid, the APS specialist follows the procedures for an administrative review and release hearing in 14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases. The APS specialist does this before completing the steps below.
All Findings (Including Valid)
Before notifying the appropriate entity of any investigation findings, the APS specialist completes the following steps:
- Consults with his or her supervisor.
- Completes the appropriate form for the licensing board or other entity. The specialist includes a summary of the situation or incident he or she believes violated the perpetrator’s professional code of ethics or code of conduct. (For various entities’ forms, see the table below this list of steps.)
- Sends the completed form to the district director for review and approval.
- Sends the approved form and copies of any additional supporting documentation to the address on the form. Supporting documentation may include, for example, a copy of a check or bank statement with the account number marked out, or a Word document containing the intake narrative and any of the case narrative that supports the reason for sending the form (not the full case). The names of the client and witnesses are not included, but the receiving entity may request them, if needed.
- Documents the notification in IMPACT.
- Stores a copy of the form using one of the following methods:
- Uploading the form to OneCase.
- Listing the form on the External Documentation page and storing the hard copy in the paper case file.
The table below provides links to the appropriate notification forms or related webpages for various entities.
| Professional Licensing Board, Commission, or Agency |
Notification Form or Webpage |
|---|---|
Texas State Board of Social Worker Examiners |
Complaint Form (Texas Behavioral Health Executive Council (BHEC), including social work) and BHEC How to File a Complaint webpage |
Texas Board of Nursing |
|
Texas Medical Board |
|
State Bar of Texas |
|
Texas Judicial Branch Certification Commission Certification Division |
Professional Codes of Ethics
It is important for the professional board or other entity to understand which code of conduct a person violated by committing the validated or alleged abuse, neglect, or financial exploitation. For example, an APS investigation of alleged sexual abuse may reveal that a consensual sexual relationship exists between an APS client (a consenting adult) and a licensed professional. This relationship would not be sexual abuse as defined in the Texas Administrative Code §705.103, but the licensed professional’s actions may violate ethical standards set by the licensing board for his or her specific profession. A code of conduct is typically available on each board’s website.
14400 Employee Misconduct Registry (EMR)
APS January 2022
The Employee Misconduct Registry (EMR) is a public database that HHSC maintains as directed in the Health and Safety Code, Chapter 253. The purpose of the EMR is to make sure unlicensed employees who commit abuse, neglect, or financial exploitation against residents or consumers are denied employment with entities regulated by the Texas Health and Human Services Commission (HHSC).
A person who is listed on the EMR is permanently denied employment with certain entities that HHSC regulates. Entities whose employees are subject to the EMR may not employ a person listed on the EMR. Other employers may use the EMR as an employment screening tool.
Any interested person can access and search the EMR Search System (Employability Status Check Search) free of charge. The subject’s first and last name or Social Security number is required for a search.
Human Resources Code, Chapter 48
DFPS Rules, 40 TAC Chapter 705
14410 EMR Eligibility
APS April 2023
The APS specialist uses a multi-step process to determine whether a designated perpetrator is eligible for the EMR. The APS specialist determines whether all the following apply:
- The designated perpetrator meets eligibility criteria (see 14411 EMR-Eligible Employee).
- The EMR-eligible employee is the perpetrator in a validated finding of abuse, neglect, or financial exploitation.
- The validated finding rises to the level of reportable conduct (see 14412 Reportable Conduct).
If a case contains both Valid-Reportable Conduct (EMR) and Valid (non-EMR) findings against the same designated perpetrator, he or she is not eligible for non-EMR due process. Instead, the designated perpetrator receives due process through EMR due process only.
If APS legal staff or State Office chooses not to proceed with the EMR process, and APS intends to release the findings of the investigation outside DFPS, APS offers the perpetrator non-EMR due process. See 14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases.
14411 EMR-Eligible Employee
APS April 2023
A designated perpetrator is eligible to be placed on the EMR by APS if he or she meets all of the following criteria:
- Works for a HCSSA as an employee, agent, or contractor.
- Provides personal care services, active treatment, or any other personal services to a client.
- Was not licensed by the state to perform the services that he or she provided to the client at the time of the alleged misconduct.
A certified nurse aide (CNA) is eligible for the EMR.
A licensed professional (such as a physician or registered nurse) is not eligible for the EMR, but APS may report him or her to his or her professional licensing board. See 14352 Release of Findings to Professional Licensing Boards, Commissions, and Other Agencies.
If a designated perpetrator is a licensed professional but is working at a HCSSA as an unlicensed paid caretaker at the time of the misconduct, the designated perpetrator may be eligible for the EMR.
If a paid caretaker is eligible for the EMR and the client dies, the APS specialist continues the investigation as outlined in 11000 Death of a Client.
Texas Health and Safety Code, Chapter 253
14412 Reportable Conduct
APS April 2023
If an investigation results in a validated finding against an EMR-eligible employee, the APS specialist determines whether the abuse, neglect, or financial exploitation rises to the level of reportable conduct.
Reportable conduct is defined in Human Resources Code §48.401 as any of the following:
- Physical abuse or neglect that causes, or may cause, death or harm to a person receiving agency services (client).
- Emotional, verbal, or psychological abuse that causes harm to a person receiving agency services.
- Sexual abuse of a person receiving agency services.
- Financial exploitation of a person receiving agency services in an amount of $25 or more.
Determining Reportable Conduct for Physical Abuse or Neglect
The APS specialist determines whether the available evidence establishes all of the following elements for Valid – Reportable Conduct.
| The client is one of the following: |
The designated perpetrator (DP) is or was employed by a HCSSA as one of the following: |
And the perpetrator was: |
And the Valid allegation: |
And caused or may have caused one (or both) of the following: |
|---|---|---|---|---|
|
|
|
Meets all elements of the definition of abuse or neglect. |
|
Definition of Harm for Physical Abuse or Neglect
Reportable conduct is physical abuse or neglect that causes, or may cause, death or harm to a person receiving agency services. For the purpose of determining whether physical abuse or neglect rises to the level of reportable conduct, harm is defined as any of the following:
- A significant injury or risk of significant injury, including any of the following:
- A fracture.
- Dislocation of any joint.
- Internal injury.
- A contusion (bruise) larger than two and a half inches.
- Concussion.
- Second- or third-degree burn.
- Any laceration (cut or tear) requiring sutures.
- An adverse health effect that results from, or is at risk of resulting from, failure to receive medications in the amounts or at the times prescribed.
- Any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.
Determining Reportable Conduct for Emotional, Verbal, or Psychological Abuse
The APS specialist determines whether the available evidence establishes all of the following elements for Valid – Reportable Conduct.
| The client is one of the following: |
The designated perpetrator (DP) is or was employed by a HCSSA as one of the following: |
And the perpetrator was: |
And the Valid allegation: |
And caused: |
|---|---|---|---|---|
|
|
|
Meets all elements of the definition of abuse. |
Harm to the client (see below for definition). |
Definition of Harm for Emotional, Verbal, or Psychological Abuse
Reportable conduct is emotional, verbal, or psychological abuse that causes harm to a person receiving agency services. For the purpose of determining whether emotional, verbal, or psychological abuse rises to the level of reportable conduct, harm is defined as substantial harm, as shown by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.
Determining Reportable Conduct for Sexual Abuse
The APS specialist determines whether the available evidence establishes all of the following elements for Valid – Reportable Conduct.
| The client is one of the following: |
The designated perpetrator (DP) is or was employed by a HCSSA as one of the following: |
And the perpetrator was: |
And the Valid allegation: |
|---|---|---|---|
|
|
|
Meets all elements of the definition of sexual abuse. |
Reportable conduct is any validated act of sexual abuse of a person receiving agency services.
Determining Reportable Conduct for Financial Exploitation
The APS specialist determines whether the available evidence establishes all of the following elements for Valid – Reportable Conduct.
| The client is one of the following: |
The designated perpetrator (DP) is or was employed by a HCSSA as one of the following: |
And the perpetrator was: |
And the Valid allegation: |
And: |
|---|---|---|---|---|
|
|
|
Meets all elements of the definition of financial exploitation. |
The amount of exploitation was $25 or more. |
Reportable conduct is defined as financial exploitation of a person receiving agency services in an amount of $25 or more.
14420 Required Information for EMR-Eligible Investigations
APS January 2022
The APS specialist obtains the following information during an investigation when he or she believes that an allegation of abuse, neglect, or financial exploitation may result in a Valid-Reportable Conduct finding:
- Records that prove the alleged perpetrator was an employee of the HCSSA at the time the abuse, neglect, or financial exploitation occurred. These include, but are not limited to, the following:
- Job application.
- Employer background checks.
- Job description.
- Training records.
- Time sheets.
- Current personal information about the alleged perpetrator, including the following:
- Social Security number.
- Date of birth.
- Residential address.
- Personal phone number.
- Other evidence that may be relevant to the investigation, including, but not limited to, the following:
- Financial records to show the exact dates and amounts related to the financial exploitation (such as pawn shop receipts, bank statements, and video or photos).
- Expert testimony about the harm that resulted from, or could have resulted from, the abuse or neglect (such as medical records, photos, and incident reports).
The APS specialist attempts to verify the alleged perpetrator’s personal information during the interview.
If the information is not included in the intake, and the alleged perpetrator is not willing to provide the information, the APS specialist obtains the information from the alleged perpetrator’s employer. If the employer refuses to provide the information after the APS specialist has informed the employer of Human Resources Code §48.154, the APS specialist does as follows:
- Documents the refusals by the alleged perpetrator and employer.
- Notifies the State Office EMR coordinator.
If the employer continues to refuse, and APS has made all reasonable attempts to obtain the information, the specialist follows the procedures in 12300 Access to Records.
If the alleged perpetrator is involved in an investigation that does not rise to the level of reportable conduct, the APS specialist cannot request the alleged perpetrator’s Social Security number from the employer.
On the Case Closure page, the APS specialist does the following:
- Scrolls down to the Employee Misconduct Registry (EMR)-Due Process section.
- Enters the following in the HCSSA Administrator section:
- Correct name of the HCSSA.
- First and last name of the HCSSA administrator.
- Phone number and address of the headquarters of the alleged perpetrator’s employer.
- Clicks the Validate button.
- Clicks the Send for Review button.
See:
6122 Interviewing an Alleged Perpetrator
8610 Allegation Disposition (Finding)
14421 Entering the EMR Information in IMPACT
APS January 2022
Documenting the Finding
After determining an allegation is Valid and rises to the level of reportable conduct, the APS specialist chooses Valid-Reportable Conduct as the finding for the allegation in IMPACT. The APS specialist makes sure that only allegations that rise to the level of reportable conduct have the finding of Valid-Reportable Conduct.
The APS specialist does not send any notification to the designated perpetrator when the finding is Valid-Reportable Conduct. Instead, the EMR coordinator provides all notifications.
See 8610 Allegation Disposition (Finding).
Documenting the Investigation Conclusion
The APS specialist completes the conclusion narrative according to 8652 Conclusion Justification.
The conclusion justification for a case involving reportable conduct must also include the following:
- The finding of Valid-Reportable Conduct.
- The total monetary value of what the designated perpetrator gained, including how APS determined this amount, if the allegation is financial exploitation.
- The date, dates, or date range the financial exploitation occurred, if applicable.
- The definition of the allegation from Chapter 705 of the Texas Administrative Code.
- A preponderance statement about why the case was determined Valid-Reportable Conduct. A separate preponderance statement for Valid is not required.
After writing the conclusion justification, the APS specialist clicks the Send for Review button on the Case Closure page.
Example
The preponderance of the evidence indicates that Jane Jones financially exploited Joe Smith when she used his debit card to get $50.00 cash back while grocery shopping for Joe Smith on May 1, 2020. APS obtained the record of the debit card account. Mr. Smith said he did not agree to the withdrawal and did not receive the cash that Ms. Jones withdrew. The definition of financial exploitation (Texas Administrative Code §705.107) is 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, for monetary or personal benefit, profit, or gain without the informed consent of the client. The amount in this incident is more than $25, which is the minimum for financial exploitation to be reportable conduct. Therefore, the finding is Valid-Reportable Conduct.
14430 Management Review of EMR-Eligible Investigations
APS January 2022
Subject Matter Expert (SME) Review
When the APS specialist becomes aware the alleged perpetrator works for a HCSSA and suspects that an allegation meets the definition of reportable conduct, he or she notifies the evidence-driven investigation (EDI) subject matter expert (SME).
The EDI SME does the following:
- Provides technical assistance throughout the investigation.
- Helps the APS specialist determine whether the allegation meets the definition of reportable conduct.
- Reminds the APS specialist of the additional records required for a reportable conduct case.
- Enters the SME consultation in IMPACT as outlined in 9800 Subject Matter Expert (SME) Consultations.
The review includes a statement indicating that the SME agrees or does not agree that the case rises to the level of Valid-Reportable Conduct.
District Director Review
The district director or designee reviews the case in IMPACT within 14 calendar days of receiving the electronic notification to determine whether the finding meets the definition of reportable conduct. The designee for approval of EMR cases can only be a program administrator or a subject matter expert.
If the district director or designee agrees with the finding of Valid-Reportable Conduct, he or she electronically approves the case by clicking the Send to EMR button on the Approval Status page. This sends an email notification the next business day to the APS EMR mailbox (monitored by the EMR coordinator) and copies the APS specialist, supervisor, and district director or designee. If the verification email does not arrive the following business day, the supervisor notifies the EMR coordinator of the unsuccessful referral. When the referral is successful, the case displays an E for EMR under the EMR column on the Summary Workload page in IMPACT. (The district director or designee approved the finding and should notice if the email fails to arrive. Also, the E should be visible to the APS specialist, even if the email fails to arrive. Either of these people can alert the supervisor, the EMR coordinator, or both.)
If the district director or designee does not agree with the finding, he or she uses the Comments field on the Approval Status page to direct the APS specialist to change the allegation finding in IMPACT, as appropriate, and then clicks the Reject button. This sends an email notification the next business day to the APS specialist, notifying him or her of the rejection. The case displays an R for Reject under the EMR column on the Summary Workload page in IMPACT.
See 9800 Subject Matter Expert (SME) Consultations.
14440 Role of the EMR Coordinator
APS January 2022
Upon receiving IMPACT’s notification of a new EMR referral, the EMR coordinator reviews the case to make sure of the following:
- The designated perpetrator is an EMR-eligible employee.
- The incident meets criteria for referral to the EMR.
- All evidence necessary to support the Valid-Reportable Conduct finding was obtained and entered in OneCase or on the External Documentation page.
- Documentation is clear and supports the finding.
The EMR coordinator requests more evidence or documentation to support the finding, as necessary.
If Referral Will Not Move Forward
If an EMR referral will not move forward, the following actions occur:
- The EMR coordinator emails the APS specialist, supervisor, and district director or designee to notify them of the decision to stop the referral.
- The APS specialist changes the allegation finding in IMPACT, based on the supervisor’s direction.
- The EMR coordinator changes the status of the EMR referral in the APS-EMR database.
If Referral Will Move Forward
If an EMR referral contains the necessary evidence, the EMR coordinator does as follows:
- Sends a Notice of Findings letter to the designated perpetrator’s current address.
- Sends a Notice to Employer letter to the entity that employed the perpetrator at the time of the incident.
- Uploads into the APS-EMR database scanned copies of all letters sent to and received from all people and entities.
Once the EMR due process is complete, the EMR coordinator does as follows:
- Sends a notification letter to the designated perpetrator’s employer informing the employer of the outcome.
- If the finding was sustained, submits the perpetrator’s name to the HHSC EMR coordinator for placement on the Employee Misconduct Registry.
- Makes sure that the correct allegation finding is in IMPACT in the Administrative Review of Investigation (ARI) stage. The ARI stage reflects the outcome of the EMR due process.
- Informs the APS specialist, supervisor, and EDI SME of the outcome of the EMR due process.
The APS EMR coordinator and the EMR legal staff monitor the internal APS-EMR database until the EMR referral is complete and a final determination has been made. This database is used to track the legal process and gather statistics.
14450 Notifications of Findings in EMR-Eligible Cases
14451 Notice of Findings to Employer
APS January 2022
The EMR coordinator sends the employer a Notice of Findings letter by regular first-class mail. This notice informs the employer that the employee’s (designated perpetrator’s) action of abuse, neglect, or financial exploitation is Valid and rises to the level of reportable conduct. The notice includes a summary of the investigation with a finding of Valid-Reportable Conduct and a statement of the employee’s right to request an EMR hearing.
Emergency Release to Subsequent Employers Before the EMR Hearing
There are times when, before the EMR hearing, a designated perpetrator whom APS is considering for placement on the EMR obtains employment with another employer that gives the designated perpetrator access to vulnerable adults or children.
Employers Regulated by HHSC
If the subsequent employer is regulated by HHSC, the EMR coordinator works with district management and the regional attorney to determine whether an emergency release is appropriate. (See 14310 Emergency Release of Findings in Non-EMR Cases.)
If an emergency release occurs, the assigned APS specialist sends the emergency release letters to the EMR coordinator to store electronically with the designated perpetrator’s other EMR documents. Once EMR due process is complete, the EMR coordinator sends a Final Letter to Employer to each of the employers whom APS notified.
Other Employers
Employers not regulated by HHSC are not required to check the EMR for employment purposes. If the subsequent employer is not regulated by HHSC, APS does not make an emergency release.
14452 Notice of Findings to Employee (Designated Perpetrator)
APS January 2022
The EMR coordinator sends a Notice of Findings letter to the employee (designated perpetrator), using the perpetrator’s current (or last known) address. The EMR coordinator sends two copies of this letter – one by regular first-class mail and another by certified mail, return receipt requested. This notice includes the following:
- A summary of the investigation with a finding of Valid-Reportable Conduct (including the definition).
- A statement of the employee’s right to request an EMR hearing.
- Information about the EMR hearing process.
- The consequence of placement on the EMR.
14460 Request for EMR Hearing
APS January 2022
To request an EMR hearing, the designated perpetrator submits the Request for Hearing form as described in the Notice of Findings letter.
Hearing Is Not Requested
If the designated perpetrator does not request an EMR hearing within 30 calendar days after receiving the Notice of Findings letter, APS sends his or her name for placement on the Employee Misconduct Registry.
The EMR coordinator does the following:
- Sends a notification letter to the sustained perpetrator’s employer informing the employer of the results of the EMR process.
- Makes sure the correct allegation finding is in IMPACT in the Administrative Review of Investigation (ARI) stage.
- Emails the APS specialist, supervisor, and program administrator informing them of the outcome of the EMR process.
Hearing Is Requested
Deadline for Requesting a Hearing
If the designated perpetrator submits the Request for Hearing by fax or hand delivery, APS State Office must receive the request by 5 p.m., no later than 30 calendar days after the date the perpetrator received the Notice of Findings.
If the designated perpetrator submits the Request for Hearing by mail, the envelope must be postmarked no later than 30 calendar days after the date he or she received the Notice of Findings.
Receipt by Designated Perpetrator
APS State Office presumes the designated perpetrator received the Notice of Findings on the date of delivery, as indicated on the certified mail return receipt.
If the certified mailing is returned unclaimed, but the regular mailing is not returned, APS State Office presumes the designated perpetrator received the Notice of Findings on the third business day after the date the notice was mailed to the perpetrator’s last known address.
Late Request for Hearing
If the designated perpetrator submits the Request for Hearing after the deadline, the EMR coordinator notifies the designated perpetrator of the following information:
- The request was not filed by the deadline.
- Therefore, the request is denied, and no hearing will be granted.
- APS will submit the perpetrator’s name for placement on the Employee Misconduct Registry.
The EMR coordinator notifies the designated perpetrator of this information by sending two copies of a Denial Letter – one by regular first-class mail and another by certified mail, return receipt requested. The Denial Letter contains information on how to appeal this decision.
Designated Perpetrator Disputes Missing Deadline
If the designated perpetrator disputes the fact that the Request for Hearing was filed late, the perpetrator may request a timeliness hearing, which considers only the issue of the timeliness of the Request for Hearing. If, as a result of that hearing, the perpetrator can prove that he or she filed the original Request for Hearing by the deadline, APS schedules a separate EMR hearing as soon as possible, to consider the issue of whether the perpetrator committed reportable conduct.
14470 EMR Hearing Process
APS January 2022
When the designated perpetrator submits the Request for Hearing within the 30-day time frame, the EMR coordinator immediately forwards the request and the Notice of Findings to the following:
- EMR legal assistant
- APS specialist
- Supervisor
The EMR legal assistant forwards the request to the administrative hearings docket clerk for assignment to an administrative law judge (ALJ). The clerk schedules a hearing on the ALJ’s docket. The ALJ sends a Notice of Hearing to the designated perpetrator and to the EMR attorney.
The hearing usually occurs in the same DFPS region where the abuse, neglect, or financial exploitation took place.
14471 Schedule Changes for a Hearing
APS January 2022
Either the designated perpetrator or APS may request that the ALJ reschedule the hearing for good cause. This request must be made no later than three business days before the hearing date, except in cases of emergency.
14472 Withdrawal of Request for a Hearing
APS January 2022
Withdrawal by Employee (Designated Perpetrator)
The designated perpetrator may withdraw a Request for Hearing at any time before the hearing occurs. A perpetrator who withdraws a Request for Hearing is accepting the finding of reportable conduct.
The APS EMR attorney assigned to the case completes a motion to dismiss. The EMR legal assistant informs the EMR coordinator it is time to send the perpetrator’s name for placement on the Employee Misconduct Registry.
Withdrawal by APS
APS may decide to withdraw from the hearing at any time before the hearing occurs. If APS withdraws from the hearing, the EMR attorney notifies the program administrator and EMR coordinator. The EMR coordinator does the following:
- Creates an Administrative Review of Investigation (ARI) stage to document the change in findings from Valid-Reportable Conduct to Valid or another finding, as appropriate.
- Sends a Notice of Review of Reportable Conduct letter to the designated perpetrator and his or her employer informing them of the changes.
14473 Failure to Appear for a Hearing
APS January 2022
If either APS or the designated perpetrator fails to appear at any hearing related to the EMR process without good cause, the ALJ may issue a default judgment against the party that failed to appear.
If a default judgment against a perpetrator becomes the final hearing order, the EMR legal assistant notifies the EMR coordinator.
The EMR coordinator does as follows:
- Submits the perpetrator’s name for placement on the Employee Misconduct Registry.
- Sends a letter to the employer giving notice of the outcome.
- Notifies the APS specialist, supervisor, program administrator, and EDI SME of the outcome.
14474 Decision of Administrative Law Judge (ALJ)
APS January 2022
The ALJ prepares a hearing order, which the court staff mails to the perpetrator and the EMR legal assistant. The hearing order contains the following information:
- Findings of fact and conclusions of law about whether the following occurred:
- The perpetrator committed abuse, neglect, or financial exploitation of a client.
- The abuse, neglect, or financial exploitation met the definition of reportable conduct.
- The following additional information, if the ALJ finds that reportable conduct occurred:
- A statement of the perpetrator’s right to seek judicial review of the order.
- A statement that the finding of reportable conduct will result in the perpetrator’s placement on the EMR.
When the ALJ determines that reportable conduct occurred, the designated perpetrator becomes a sustained perpetrator.
The EMR coordinator is responsible for carrying out the ALJ’s instructions.
14475 Rehearing
APS January 2022
A sustained perpetrator may request a rehearing of the ALJ’s decision to sustain the finding of reportable conduct. The sustained perpetrator files a motion for rehearing with the Health and Human Services court no later than 25 calendar days after the ALJ signs the original hearing order.
If the perpetrator files the motion within the required time frame, the ALJ responds in one of the following ways:
- Grants the motion and allows a new hearing.
- Denies the motion. The perpetrator has no further appeal options.
- Chooses not to rule on the motion. If this happens, it is overruled by operation of law (the motion is automatically denied) 75 calendar days after it was filed.
When the ALJ grants a rehearing, the new hearing proceeds as if the original EMR hearing and outcome had never occurred.
Outcome of Rehearing
When the ALJ rules on the matter, the EMR coordinator does one of the following:
- Sends the sustained perpetrator’s name for placement on the EMR because the finding of reportable conduct was sustained.
- Changes the finding from Valid-Reportable Conduct to Valid or another finding, as appropriate.
See:
14440 Role of the EMR Coordinator
ALJ’s Finding Is Altered or Reversed in 14476 Judicial Review
14476 Judicial Review
APS September 2022
If a rehearing is denied or sustains the finding of Valid-Reportable Conduct, the sustained perpetrator may request judicial review of the ALJ’s finding of reportable conduct. To request judicial review, the perpetrator files a petition for judicial review in the Travis County District Court no later than 30 calendar days after he or she receives the hearing order.
ALJ’s Finding Is Sustained
Travis County District Court
After the judicial review in Travis County District Court, there are two additional levels of judicial review that the perpetrator may request:
- Third Court of Appeals.
- Texas Supreme Court.
Final Ruling
Once the final judge rules on the matter, the EMR coordinator sends the sustained perpetrator’s name for placement on the EMR (if the ALJ’s finding is still sustained).
ALJ’s Finding Is Altered or Reversed
If a rehearing or judicial review alters or reverses the finding of reportable conduct, the EMR coordinator does the following:
- Notifies all entities that were notified of the original finding of the new finding.
- Notifies the APS specialist, supervisor, program administrator, and EDI SME.
- Creates an Administrative Review of Investigation (ARI) stage in IMPACT to change the finding from Valid-Reportable Conduct to Valid or another finding, as appropriate.
14477 Placement of Sustained Perpetrators on the EMR
APS January 2022
After EMR due process is complete, the APS EMR coordinator sends the following information to the HHSC EMR coordinator:
- The sustained perpetrator’s name, address, and Social Security number, if available.
- The name and address of the home and community support services agency (HCSSA) that employed the sustained perpetrator at the time of the misconduct.
- A brief, de-identified summary of the reportable conduct and the date or dates when it occurred.
- A statement of whether placement on the EMR was the result of a hearing.
14500 Cases Involving School Personnel
APS January 2022
Investigations of school personnel are a special category, and APS handles notifications of findings and the review process differently than in other types of investigations.
DFPS sends the school a written report of APS’s investigation of alleged abuse, neglect, or financial exploitation by school personnel, regardless of the findings.
When the finding is Valid, and the perpetrator is a school employee, volunteer, or contractor, APS offers him or her an administrative review after releasing the investigative findings to school officials.
School personnel are not entitled to a release hearing upon completion of the administrative review, regardless of the findings of the administrative review.
See 4320 Allegations Involving Schools.
Processing the Completed School Investigation
APS takes specific actions after completing an investigation involving a student in school custody, regardless of the findings. The actions must be completed as outlined below. APS staff members direct any questions about the process to the regional attorney.
Step 1: Sending Notice of Conclusion of Investigation
For all school investigations, regardless of the findings, the APS specialist mails Form 2300 Notice of Conclusion of Investigation (School Employees) to the following:
- Texas State Board for Educator Certification (SBEC) division of the Texas Education Agency (TEA).
- President of the local school board or governing body.
- School principal, unless the principal is the perpetrator.
Step 2: Providing Redacted Case Records
For all school investigations, regardless of the findings, the APS specialist emails the Records Management Group (RMG) requesting that RMG send a copy of the redacted case record to the recipients listed above in Step 1. The request must include addresses for both of the following:
- Local school board or governing body.
- School principal, unless the principal is the perpetrator.
RMG sends the redacted case record to the recipients listed above in Step 1.
The recipients take appropriate action.
Human Resources Code §48.102(a)
Step 3: Notifying the Alleged Perpetrator
The APS specialist refers to the table below to determine which procedures to follow when notifying the perpetrator of the findings.
| Finding |
Procedure |
|---|---|
Invalid, Unable to Determine, or Other |
At the same time as sending the email to RMG, the APS specialist sends the alleged perpetrator Form 2301 Notification of Release – School Investigation. The form is sent by certified mail, return receipt requested. No further APS action is required. |
Valid |
At the same time as sending the email to RMG, the APS specialist sends the perpetrator the following forms:
These forms are sent by certified mail, return receipt requested, unless DFPS determines a more immediate method of written notification is required. |
See 15100 Disclosure and Release of Case Information.
14510 Request for Administrative Review by School Personnel (Designated Perpetrator)
APS January 2022
The designated perpetrator’s request for an administrative review must be postmarked within 20 calendar days after DFPS mailed the official notice of findings (Form 2301 Notification of Release – School Investigation). If the request is not postmarked within 20 calendar days, the designated perpetrator has forfeited the right to an administrative review.
The APS district staff must wait at least 23 calendar days and may wait up to 30 calendar days after DFPS mailed the official notice of findings before considering the administrative review forfeited. This allows enough time for DFPS to receive the request and route it to the proper region. The envelope from the designated perpetrator still requires a postmark that is within 20 calendar days of the date DFPS mailed the official notice.
Request for Records
If the request for an administrative review is received in a timely manner and indicates the perpetrator wants a copy of the case record, the reviewer (district director or designee) does the following:
- Requests a redacted copy of the case through OneCase by choosing Administrative Review as the Request Type.
- Lists himself or herself as the caseworker in the contact information fields.
- Requests that the Entitlement Redaction Office (ERO) provide the record within 45 calendar days from the date the request is entered in OneCase.
The ERO sends the reviewer a link to print the redacted case record once it is available.
The reviewer mails the designated perpetrator a copy of the redacted case record.
14520 Administrative Review in School Cases
APS January 2022
The APS district director or designee conducts the administrative review. The reviewer must not have directly supervised the APS specialist or have been involved in the investigation.
The review occurs within 30 calendar days after the date APS receives the perpetrator’s request unless one of the following occurs:
- The perpetrator requests the review be postponed because he or she has not received the case record yet.
- Court proceedings related to the abuse, neglect, or financial exploitation are in progress at the time or are started after the review is requested.
If court proceedings are involved, APS postpones the review until the court proceedings are completed.
DFPS makes a good faith effort to conduct the review within the 30-day time frame. However, failure to do so in that time frame does not cancel the review or reverse the finding.
See 14510 Request for Administrative Review by School Personnel (Designated Perpetrator).
Perpetrator’s Role in the Administrative Review
At the administrative review, the perpetrator may do any or all of the following:
- Appear in person, with or without a legal representative.
- Submit written material that is relevant to the case.
- Have DFPS provide a certified interpreter if the perpetrator does not speak English or has a hearing impairment, or provide his or her own interpreter.
DFPS Rules, 40 TAC §705.1301(1)
The perpetrator pays any costs he or she may incur for the review, except for interpreter services that DFPS provides.
DFPS Rules, 40 TAC §705.1301(2)
Formal rules of evidence do not apply to the administrative review. The perpetrator may make statements, provide information, or ask questions. The perpetrator may bring statements from additional witnesses. No live testimony from witnesses other than the perpetrator is accepted at this informal review. The reviewer may clarify issues, ask questions, and gather any information needed for a decision.
Actions After the Administrative Review
Within 45 calendar days after the administrative review, the reviewer does the following:
- Decides to sustain, alter, or reverse the original APS findings based on the same requirements and criteria that APS specialists and supervisors use to conduct investigations and reach conclusions.
- Creates an Administrative Review of Investigation (ARI) stage in IMPACT by choosing the Investigation stage (not the SWI Intake stage) of the case and the name of the perpetrator being reviewed.
- Documents the review and decision on the Administrative Appeal and Review page found under the Record Admin Review/Appeal tab in the ARI stage.
- Updates the disposition on the Allegation Detail page, if appropriate.
- Updates the case closure reason, if appropriate.
14530 Notification of Final Findings for School Personnel
APS January 2022
Administrative Review Completed
Within 45 calendar days after the administrative review is completed, the district director or designee sends Form 2303 Findings of Administrative Review (School Employees) to the perpetrator by certified mail, return receipt requested. The district director or designee also sends copies to all entities notified of the original findings.
The outcome of the review is final and cannot be appealed.
Administrative Review Not Requested
If the designated perpetrator does not request an administrative review, the district director or designee sends Form 2304 Notice of Final Findings of Investigation (School Employees) to the perpetrator by certified mail, return receipt requested. The district director or designee also sends copies to all entities notified of the original findings.