SECTION 259.371. DSA: Requirements Related to the Abuse, Neglect, and Exploitation of an Individual

(a) If a report required by §259.369 of this subchapter (relating to DSA: Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation by a person who is not a service provider, staff person, volunteer, or controlling person of a DSA, the DSA must:

(1) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual;

(2) discuss with the individual or LAR alternative residential settings and additional services that may help ensure the individual's safety;

(3) when taking the actions described in paragraphs (1) and (2) of this subsection, avoid compromising the investigation or further traumatizing the individual; and

(4) preserve and protect evidence related to the allegation.

(b) If a report required by §259.369 of this subchapter alleges abuse, neglect, or exploitation by a service provider, staff person, volunteer, or controlling person of a DSA; or if the DSA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a service provider, staff person, volunteer, or controlling person of the DSA, the DSA must:

(1) as necessary:

(A) obtain immediate medical or psychological services for the individual; and

(B) assist in obtaining ongoing medical or psychological services for the individual;

(2) take actions to secure the safety of the individual, including if necessary, ensuring that the alleged perpetrator does not have contact with the individual or any other individual until HHSC completes the investigation;

(3) when taking the actions described in paragraphs (1) and (2) of this subsection, avoid compromising the investigation or further traumatizing the individual;

(4) preserve and protect evidence related to the allegation; and

(5) as soon as possible, but no later than 24 hours after the DSA reports or is notified of the allegation, notify the individual, the LAR, and the case manager of:

(A) the allegation report; and

(B) the actions the DSA has taken or will take based on the allegation, the condition of the individual, and the nature and severity of any harm to the individual, including the actions required by paragraph (2) of this subsection.

(c) During an HHSC investigation of an alleged perpetrator who is a service provider, staff person, volunteer, or controlling person of the DSA, a DSA 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 DSA;

(B) individuals, service providers, staff persons, volunteers, and controlling persons; and

(C) records pertinent to the investigation of the allegation; and

(3) ensure that service providers, staff persons, volunteers, and controlling persons of the DSA comply with paragraphs (1) and (2) of this subsection.

(d) After a DSA receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the DSA must:

(1) if the allegation of abuse, neglect, or exploitation is confirmed by HHSC:

(A) review the report, including any concerns and recommendations by HHSC; and

(B) take action within the DSA's authority to prevent the reoccurrence of abuse, neglect or exploitation, including disciplinary action against the service provider, staff person, or volunteer of the DSA confirmed to have committed abuse, neglect, or exploitation;

(2) if the allegation of abuse, neglect, or exploitation is unconfirmed, inconclusive, or unfounded:

(A) review the report, including any concerns and recommendations by HHSC; and

(B) take appropriate action within the DSA's authority, as necessary; and

(3) immediately, but not later than five calendar days after the date the DSA receives the HHSC final investigative report, notify the individual, the LAR, and the case manager of:

(A) the investigation finding; and

(B) the action taken by the DSA in response to the HHSC investigation as required by paragraphs (1) and (2) of this subsection.

(e) A DSA must not retaliate against:

(1) a service provider, staff person, individual, or other person who files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:

(A) the use of seclusion; and

(B) the use of a restraint not in compliance with federal and state laws, rules, and regulations; and

(2) an individual because a person on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:

(A) the use of seclusion; and

(B) the use of a restraint not in compliance with federal and state laws, rules, and regulations.

(f) At least annually, a DSA must:

(1) review all final investigative reports from HHSC for investigations described in subsection (c) of this section and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of services; and

(2) evaluate critical incident data reported in accordance with §259.353(b) of this subchapter (relating to DSA: Protection of an Individual) and identify program process improvements that help prevent the occurrence of critical incidents and improve service delivery.

Source Note: The provisions of this §259.371 adopted to be effective January 30, 2023, 48 TexReg 362