SECTION 133.47. Abuse and Neglect Issues

(a) Reporting. Incidents of abuse, neglect, exploitation, or illegal, unethical or unprofessional conduct as those terms are defined in subsections (b) and (c) of this section shall be reported to the department.

(b) Abuse or neglect of a child, and abuse, neglect or exploitation of an elderly or disabled person. The following definitions apply only to this subsection:

(1) abuse or neglect of a child, as defined in §1.204(a) and (b) of this title (relating to Investigations of Abuse, Neglect, or Exploitation of Children or Elderly or Disabled Persons); and

(2) abuse, neglect or exploitation of an elderly or disabled person, as defined in §1.204(a) and (b) of this title.

(c) Abuse and neglect of individuals with mental illness, and illegal, unethical, and unprofessional conduct. The requirements of this subsection are in addition to the requirements of subsection (b) of this section.

(1) Definitions. The following definitions are in accordance with Health and Safety Code (HSC), §161.131 and apply only to this subsection:

(A) Abuse--

(i) Abuse (as the term is defined in 42 United States Code (USC), §10801 et seq.) is any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to a individual with mental illness, and includes acts such as:

(I) the rape or sexual assault of a individual with mental illness;

(II) the striking of a individual with mental illness;

(III) the use of excessive force when placing a individual with mental illness in bodily restraints; and/or

(IV) the use of bodily or chemical restraints on a individual with mental illness which is not in compliance with federal and state laws and regulations.

(ii) In accordance with HSC, §161.132(j), abuse also includes coercive or restrictive actions that are illegal or not justified by the patient's condition and that are in response to the patient's request for discharge or refusal of medication, therapy or treatment.

(B) Illegal conduct--Illegal conduct (as the term is defined in HSC, §161.131(4)) is conduct prohibited by law.

(C) Neglect--Neglect (as the term is defined in 42 USC, §10801 et seq.) is a negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to a individual with mental illness or which placed a individual with mental illness at risk of injury or death, and includes an act or omission such as the failure to establish or carry out an appropriate individual program plan or treatment plan for a individual with mental illness, the failure to provide adequate nutrition, clothing, or health care to a individual with mental illness, or the failure to provide a safe environment for a individual with mental illness, including the failure to maintain adequate numbers of appropriately trained staff.

(D) Unethical conduct--Unethical conduct (as the term is defined in HSC, §161.131(11)) is conduct prohibited by the ethical standards adopted by state or national professional organizations for their respective professions or by rules established by the state licensing agency for the respective profession.

(E) Unprofessional conduct--Unprofessional conduct (as the term is defined in HSC, §161.131(12)) is conduct prohibited under rules adopted by the state licensing agency for the respective profession.

(2) Posting requirements. A facility shall prominently and conspicuously post for display in a public area that is readily visible to patients, residents, volunteers, employees, and visitors a statement of the duty to report abuse and neglect, or illegal, unethical or unprofessional conduct in accordance with HSC, §161.132(e). The statement shall be in English and in a second language appropriate to the demographic makeup of the community served and contain the number of the department's patient information and complaint line at [phone].

(3) Reporting responsibility.

(A) Reporting abuse and neglect. A person, including an employee, volunteer, or other person associated with the facility who reasonably believes or who knows of information that would reasonably cause a person to believe that the physical or mental health or welfare of a patient of the facility who is receiving mental health or chemical dependency services has been, is, or will be adversely affected by abuse or neglect (as those terms are defined in this subsection) by any person shall as soon as possible report the information supporting the belief to the department or to the appropriate state health care regulatory agency in accordance with HSC, §161.132(a).

(B) Reporting illegal, unprofessional, or unethical conduct. An employee of or other person associated with a facility including a health care professional, who reasonably believes or who knows of information that would reasonably cause a person to believe that the facility or an employee or health care professional associated with the facility, has, is, or will be engaged in conduct that is or might be illegal, unprofessional, or unethical and that relates to the operation of the facility or mental health or chemical dependency services provided in the facility shall as soon as possible report the information supporting the belief to the department or to the appropriate state health care regulatory agency in accordance with HSC, §161.132(b).

(4) Training requirements. A hospital that provides comprehensive medical rehabilitation, mental health or substance abuse services shall annually provide as a condition of continued licensure a minimum of eight hours of in-service training designed to assist employees and health care professionals associated with the facility in identifying patient abuse or neglect and illegal, unprofessional, or unethical conduct by or in the facility and establish a means for monitoring compliance with the requirement.

(d) Investigations. A complaint under this subsection will be investigated or referred by the department as follows:

(1) Allegations under subsection (b) of this section will be investigated in accordance with §1.205 of this title (relating to Reports and Investigations) and §1.206 of this title (relating to Completion of Investigation);

(2) Allegations under subsection (c) of this section will be investigated in accordance with §133.101 of this title (relating to Inspection and Investigation Procedures). Allegations concerning a health care professional's failure to report abuse and neglect or illegal, unprofessional, or unethical conduct will not be investigated by the department but will be referred to the individual's licensing board for appropriate disciplinary action.

(3) Allegations under both subsections (b) and (c) will be investigated in accordance with §1.205 and §1.206 of this title except as noted in paragraph (2) of this subsection concerning a health care professional's failure to report.

(e) Submission of complaints. A complaint made under this section may be submitted in writing or verbally to the Patient Quality Care Unit, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756-3199, telephone, [phone].

(f) Notification.

(1) For complaints under subsection (b) of this section, the department shall provide notification according to the following.

(A) The department shall notify the reporter, if known, in writing of the outcome of the complete investigation.

(B) The department shall notify the alleged victim, and his or her parent or guardian if a minor, in writing of the outcome of the completed investigation.

(2) For complaints under subsection (c) of this section, the department shall inform, in writing, the complainant who identifies themselves by name and address of the following:

(A) the receipt of the complaint;

(B) if the complainant's allegations are potential violations of this chapter warranting an investigation;

(C) whether the complaint will be investigated by the department;

(D) whether and to whom the complaint will be referred; and

(E) the findings of the complaint investigation.

(g) Department reporting and referral.

(1) Reporting health care professional to licensing board.

(A) In cases of abuse, neglect, or exploitation, as those terms are defined in subsection (b) of this section, by a licensed, certified, or registered health care professional, the department may forward a copy of the completed investigative report to the state agency which licenses, certifies or registers the health care professional. Any information which might reveal the identity of the reporter or any other patients or clients of the facility must be blacked out or deidentified.

(B) A health care professional who fails to report abuse and neglect or illegal, unprofessional, or unethical conduct as required by subsection (c)(3) of this section may be referred by the department to the individual's licensing board for appropriate disciplinary action.

(2) Sexual exploitation reporting requirements. In addition to the reporting requirements described in subsection (c)(3) of this section, a mental health services provider must report suspected sexual exploitation in accordance with Texas Civil Practice and Remedies Code, §81.006.

(3) Referral follow-up. The department shall request a report from each referral agency of the action taken by the agency six months after the referral.

(4) Referral of complaints. A complaint containing allegations which are not a violation of HSC, Chapter 241, or this chapter will not be investigated by the department but shall be referred to law enforcement agencies or other agencies, as appropriate.

Source Note: The provisions of this §133.47 adopted to be effective June 21, 2007, 32 TexReg 3587