SECTION 351.503. Minimum Standards for Investigations

(a) Applicability. This section applies to investigations, conducted under §261.401 of the Family Code, of alleged child abuse, neglect, or exploitation in facilities operated, licensed, certified, or registered by a state agency.

(b) Formal investigation. On receiving an oral or written allegation or report of abuse, neglect or exploitation, a state agency must immediately initiate a formal investigation to determine the accuracy of the report and to evaluate the need for protective services for the child. A state agency should consider the following steps (which may vary according to circumstances) in conducting its investigation:

(1) a face-to-face interview with the alleged victim to evaluate immediate and long-term risk. The investigator should make every effort to establish face-to-face contact with the alleged victim, including a diligent search to locate the alleged victim, if the victim's whereabouts are unknown;

(2) make a reasonable effort to locate and inform each parent of a child who is the alleged victim of abuse, neglect, or exploitation, of the nature of the allegation and of the fact that the interview was conducted.

(3) a face-to-face interview with the person(s) thought to have knowledge of the circumstances related to the alleged abuse, neglect or exploitation, including anyone responsible for the ongoing care of a child;

(4) collecting relevant information such as:

(A) the nature, extent, and cause of the abuse, neglect, or exploitation;

(B) the identity of the person responsible for the abuse, neglect, or exploitation;

(C) the names and conditions of the other individual(s) in the home;

(D) the adequacy of the environment; and

(E) the relationship of the alleged victim to the person(s) responsible; and

(5) assigning a priority rating to the investigation based on the information received and the degree of severity and immediacy of the alleged harm to the child.

(c) Priorities for investigation. A state agency, as defined in §351.501 of this title (relating to Definitions Relating to Child Abuse Neglect and Exploitation):

(1) must ensure that the facility establishes a system for informing persons who work under the auspices of the facility of their obligations to report suspected abuse, neglect, and exploitation in accordance with the state agency's rules and/or policies;

(2) must establish a system for assigning reasonable timelines for initiating and for completing an investigation of a report of abuse, neglect or exploitation that is based on the degree to which the alleged victim is believed to be in immediate danger of physical harm and the degree to which relevant evidence may be lost in relation to the initiation date of the investigation:

(A) at any time the alleged victim may incur physical injury or evidence may be lost pending the initiation of an investigation, the investigation must be initiated within 24 hours of receipt of the report;

(B) notwithstanding the potential risk of physical injury to the child or loss of evidence, all investigations must be completed within 30 calendar days of receipt of the report; provided, however, that the completion date for an investigation may be extended beyond 30 days for good cause as documented in the investigation report;

(3) may conclude an investigation and retain any applicable immunity granted pursuant to the Family Code, §261.106, at any time that the agency determines that the report of abuse, neglect or exploitation is frivolous or patently without a factual basis or, the conduct reported, even if true, does not constitute abuse, neglect or exploitation; and

(4) must refer any report of abuse, neglect or exploitation received by the agency but not investigated by the agency to the appropriate law enforcement or state agency that should conduct the investigation.

(d) Collection of evidence. The collection of evidence should include, but is not limited to:

(1) a full statement of the allegation(s);

(2) interview(s) with the alleged victim, alleged perpetrator, and all witnesses or persons who may provide collateral information that may be relevant to the investigation;

(A) interviews must be conducted in a timely manner so as to maximize the information obtained through the interview;

(B) any person authorized to conduct an investigation of abuse, neglect, or exploitation should coordinate investigative activities and share information with other appropriate agencies, if any, in order to minimize the number of interviews of the victim;

(3) written statements signed and dated, respectively, by the alleged victim, alleged perpetrator, and other collateral witnesses interviewed by the investigator; if the alleged victim, alleged perpetrator or other witness is unable or unwilling to write and/or sign a statement, the investigation report must include a statement to this effect;

(4) documentation of a physical examination of the alleged victim and medical treatment rendered, as needed;

(5) photographs should be taken whenever there are allegations of physical injuries;

(6) diagrams, as needed;

(7) the original or computer generated notes made during the investigation, videotapes and audiotapes of interviews, in order to preserve and document the chain of evidence; and

(8) any other physical evidence that is relevant to the investigation.

(e) Burden of proof. After the evidence has been collected and evaluated, the investigative staff must determine whether or not to confirm the allegation. To confirm an allegation, the investigative staff must find the abuse, neglect, and exploitation is supported by a preponderance of the evidence. The following classifications are recommended for investigative findings that are not confirmed:

(1) Unconfirmed means it is reasonable to conclude that abuse, neglect, or exploitation did not occur or is unlikely to occur.

(2) Inconclusive means there is insufficient evidence to support or refute an allegation. This occurs when an allegation of abuse, neglect, or exploitation could not be confirmed, unconfirmed, or unfounded because there is a lack of witnesses or other relevant evidence.

(3) Unfounded means that an allegation of abuse, neglect, or exploitation is spurious or patently without factual basis.

(f) Content of the investigative report. An investigative report should, to the greatest extent possible, be written concisely, clearly, factually, and objectively. The following elements should be included in the report:

(1) a brief description of the allegation that identifies the alleged victim, alleged perpetrator(s), and any witnesses;

(2) date and time the incident occurred and when it was reported;

(3) a summary of investigative procedures;

(4) a summary and an analysis of the evidence, the investigative finding(s), and recommendations; and

(5) supporting documents such as witness statements, injury reports, and diagrams, as appropriate.

(6) The investigating state agency must submit the report, and any recommendations to the district attorney or other appropriate law enforcement agency, if requested to do so by law enforcement, the agency determined further legal action is warranted, or the agency confirmed that the alleged victim was abused, neglected, or exploited and it appears that there is a criminal violation.

(g) Referrals to appropriate agencies. A state agency that receives a report of abuse, neglect, or exploitation that is not within the agency's jurisdiction must refer the matter to the agencies listed below, as appropriate:

(1) to the Texas Department of Protective and Regulatory Services, if

(A) the alleged or suspected abuse, neglect, or exploitation involves a person responsible for the care, custody, or welfare of the alleged victim;

(B) the alleged or suspected abuse, neglect or exploitation of a person receiving services in a facility operated by MHMR, in or from a community center or a local mental health or mental retardation authority, or through a program that contracts with MHMR, a community center, or local mental health or mental retardation authority;

(2) to the appropriate law enforcement agency, if the allegation does not involve a caretaker or the allegation appears to involve an incident that violates the Penal Code; the state agency must send its final report to law enforcement, if the investigation indicates a crime has been committed; and

(3) to the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse, neglect, or exploitation occurred, may have occurred, or is likely to occur.

(h) Administrative review of investigation findings. A state agency should develop and implement policies and procedures to resolve complaints as described in §261.309 of the Family Code.

(i) Confidentiality of Reports. A state agency may disclose the allegation, report, records, communications, and working papers used or developed in the investigative process, including the resulting final report regarding abuse, neglect, or exploitation, only as provided by §261.201 of the Family Code, concerning the confidentiality of information.

(j) Qualifications and training of investigator(s). A state agency must establish minimum qualifications for all abuse, neglect, and exploitation investigators.

(1) In determining the appropriate qualifications, a state agency must include a minimum number of hours of annual professional training for investigators of suspected child abuse, neglect, or exploitation. The annual professional training curriculum should include information concerning:

(A) physical abuse and neglect, including distinguishing physical abuse from ordinary injuries;

(B) psychological and emotional abuse and neglect;

(C) exploitation;

(D) sexual abuse;

(E) available treatment resources;

(F) the incidence and types of reports of victim abuse, neglect, or exploitation that are received by the investigating agencies, including information concerning false reports;

(G) interview techniques, including setting appropriate limits on the number of interviews and examinations of a suspected victim and the taping (audio or video) of a suspected victim without interruption; and

(H) procedures to preserve evidence, including the original or computer generated notes made during the investigation and videotapes and audiotapes of interviews.

(2) The investigator must have knowledge of Penal Code sections that relate to abuse, neglect, and exploitation.

(3) The investigator must know how to develop written statements and other documentary records related to the interview process and how to handle evidence, for example, collection and preservation of physical evidence.

Source Note: The provisions of this §351.503 adopted to be effective January 12, 2003, 28 TexReg 439