Section 368.405 - Abuse, Neglect, and Exploitation of a Designated Resident(a) The service provider agency must: (1) ensure that a designated resident and LAR are, before initiation of IHSS and at least annually thereafter: (A) informed of how to report allegations of abuse, neglect, or exploitation to DFPS Statewide Intake and are provided with the toll-free telephone number in writing; and(B) educated about protecting the designated resident from abuse, neglect, and exploitation;(2) ensure that each staff member, individual service provider, and volunteer are:(A) trained and knowledgeable of:(i) acts that constitute abuse, neglect, and exploitation;(ii) signs and symptoms of abuse, neglect, and exploitation; and(iii) methods to prevent abuse, neglect, and exploitation;(B) instructed to report to DFPS Statewide Intake immediately, but not later than one hour after having knowledge or suspicion, that a designated resident has been or is being abused, neglected, or exploited, by:(i) calling the DFPS Abuse Hotline toll-free telephone number; or(ii) using the DFPS Abuse Hotline website; and(C) provided with the instructions described in subparagraph (B) of this paragraph in writing; and(3) conduct the activities described in paragraph (2)(A) - (C) of this subsection before a staff member, individual service provider, or volunteer begins job duties and at least annually thereafter.(b) If a service provider agency staff member, individual service provider, volunteer, or controlling person knows or suspects a designated resident is being or has been abused, neglected, or exploited, the service provider agency must report or ensure that the individual with knowledge or suspicion reports the allegation of abuse, neglect, or exploitation to DFPS Statewide Intake immediately, but not later than one hour after having knowledge or suspicion, by: (1) calling the DFPS Abuse Hotline toll-free telephone number; or(2) using the DFPS Abuse Hotline website.(c) If a report required by subsection (b) of this section alleges abuse, neglect, or exploitation by an individual who is not an individual service provider, staff member, volunteer, or controlling person, the service provider agency must:(1) obtain emergency medical or psychological services, as necessary, for the designated resident, if the designated resident is in the service provider agency's care;(2) take necessary actions to secure the safety of the designated resident;(3) when taking the actions described in paragraphs (1) and (2) of this subsection, avoid compromising the investigation or further traumatizing the designated resident; and(4) preserve and protect evidence related to the allegation.(d) If a report required by subsection (b) of this section alleges abuse, neglect, or exploitation by an individual service provider, staff member, volunteer, or controlling person; or if the service provider agency is notified by HHSC of an allegation of abuse, neglect, or exploitation by an individual service provider, staff member, volunteer, or controlling person, the service provider agency must:(1) obtain emergency medical or psychological services and assist in obtaining ongoing medical or psychological services for the designated resident, as necessary;(2) take necessary actions to secure the safety of the designated resident, including ensuring that the alleged perpetrator does not have contact with the designated resident or any other individual receiving services from the service provider agency until HHSC completes the investigation;(3) avoid compromising the investigation or further traumatizing the designated resident when taking the actions described in paragraphs (1) and (2) of this subsection;(4) preserve and protect evidence related to the allegation; and(5) notify, as soon as possible, but no later than 24 hours after the service provider agency reports or is notified of the allegation, the designated resident, the LAR, the habilitation coordinator, and the NF of:(A) the allegation report; and(B) the actions the service provider agency has taken or will take based on the allegation, the condition of the designated resident, and the nature and severity of any harm to the designated resident, including the actions required by paragraph (2) of this subsection.(e) During an HHSC investigation of an alleged perpetrator who is an individual service provider, staff member, volunteer, or controlling person, the service provider agency must: (1) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;(2) provide HHSC access to:(A) sites owned, operated, or controlled by the service provider agency;(B) designated residents, individual service providers, staff members, volunteers, and controlling persons; and(C) records pertinent to the investigation of the allegation;(3) ensure that staff members, individual service providers, volunteers, and controlling persons comply with paragraphs (1) and (2) of this subsection; and(4) ensure that, if the Chief Executive Officer (CEO) is named as an alleged perpetrator of abuse, neglect, or exploitation of a designated resident, an alternate to the CEO acts as the contact in an HHSC investigation and complies with subsections (d) - (g) of this section.(f) After the service provider agency receives a final investigative report from HHSC for an investigation described in subsection (e) of this section, the service provider agency must:(1) review the report, including any concerns and recommendations by HHSC, and: (A) if the allegation of abuse, neglect, or exploitation is confirmed by HHSC, take action within the service provider agency's authority to prevent the reoccurrence of abuse, neglect or exploitation, including disciplinary action against the individual service provider, staff member, or volunteer confirmed to have committed abuse, neglect, or exploitation; or(B) if the allegation of abuse, neglect, or exploitation is unconfirmed, inconclusive, or unfounded, take appropriate action within the service provider agency's authority, as necessary;(2) immediately, but not later than five calendar days after the date the service provider agency receives the HHSC final investigative report:(A) notify the designated resident, the LAR, the habilitation coordinator, and the NF of: (i) the investigation finding; and(ii) the action taken by the service provider agency in response to the HHSC investigation as required by paragraph (1)(A) and (B) of this subsection; and(B) notify the designated resident or LAR of: (i) the process to appeal the investigation finding as described in Chapter 711, Subchapter J of this title (relating to Appealing the Investigation Finding); and(ii) the process for requesting a copy of the investigative report from the service provider agency; and(3) provide a copy of the HHSC final investigative report to the designated resident or LAR upon request, after removing any information that would reveal the identity of the reporter or of any designated resident who is not the alleged victim.(g) The service provider agency must not retaliate against:(1) a staff member, individual service provider, designated resident, or other individual who files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of a designated resident; and(2) a designated resident because an individual on behalf of the designated resident files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of a designated resident.26 Tex. Admin. Code § 368.405
Adopted by Texas Register, Volume 46, Number 28, July 9, 2021, TexReg 4161, eff. 9/1/2021