SECTION 511.48. Abuse and Neglect Issues

(a) A limited services rural hospital (LSRH) shall report to the Texas Health and Human Services Commission (HHSC) incidents of abuse, neglect, exploitation, or illegal, unethical, or unprofessional conduct as those terms are defined in subsection (b) of this section.

(b) The following definitions apply only to this subsection.

(1) Abuse of a child--includes the following acts or omissions by any person:

(A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;

(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;

(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident (an unforeseen event that causes or threatens physical injury despite prudent efforts to avoid the risk of injury) or reasonable discipline (correction of behavior that does not result in or risk substantial harm from physical injury) by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

(D) failure to make a reasonable effort to prevent an action (effort that an ordinary and prudent person would take to stop an action from occurring) by another person that results in physical injury that results in substantial harm to the child;

(E) sexual conduct harmful to a child's mental, emotional, or physical welfare;

(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;

(G) compelling or encouraging the child to engage in sexual conduct as defined by the Texas Penal Code §43.01 (this is met whether the child actually engages in sexual conduct or simply faces a substantial risk of doing so);

(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Texas Penal Code) or pornographic (this is met whether or not the child voluntarily participates);

(I) the current use by a person of a controlled substance as defined by the Texas Health and Safety Code (HSC) Chapter 481, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child; or

(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by HSC Chapter 481.

(2) Abuse of an elderly or disabled person--means:

(A) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain by the person's caretaker, family member, or other individual who has an ongoing relationship with the person; or

(B) sexual abuse by the persons, caretaker, family member, or other individual who has an ongoing relationship with the person, but does not include:

(i) the proper use of restraints or seclusion in accordance with federal or state laws or regulations or court order;

(ii) other actions taken in accordance with federal or state laws or regulations or court order;

(iii) actions an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, patients or clients, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. Such actions do not include acts of unnecessary force or the inappropriate use of restraints or seclusion; or

(iv) complaints related to the daily administrative operations of a facility (e.g., staffing ratios).

(3) Abuse of an individual with mental illness--Has the following meanings:

(A) In accordance with 42 United States Code (USC) §10802(1) (relating to Definitions), any act or failure to act by an employee of a facility rendering care or treatment that was performed, or that was failed to be performed, knowingly, recklessly, or intentionally, and that caused, or may have caused, injury or death to an individual with mental illness, and includes acts such as:

(i) the rape or sexual assault of an individual with mental illness;

(ii) the striking of an individual with mental illness;

(iii) the use of excessive force when placing an individual with mental illness in bodily restraints; and

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

(B) In accordance with HSC §161.132(j) (relating to Reports of Abuse and Neglect or of Illegal, Unprofessional, or Unethical Conduct), 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.

(4) Exploitation of an elderly or disabled person--means the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person.

(5) Illegal conduct--Conduct prohibited by law.

(6) Neglect of a child--includes:

(A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and a demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of a child;

(B) the following acts or omissions by any person:

(i) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child;

(ii) the failure to seek, obtain, or follow through with medical care for the child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;

(iii) the failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child (if the failure results in an observable and material impairment to the child's growth, development, or functioning or in a substantial risk of such an observable or material impairment), excluding failure caused primarily by financial inability unless relief services had been offered and refused; or

(iv) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or

(C) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away.

(7) Neglect of an elderly or disabled person--means the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.

(8) Neglect of an individual with mental illness--In accordance with 42 USC §10802(5), a negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment that:

(A) caused or may have caused injury or death to an individual with mental illness, or

(B) placed an individual with mental illness at risk of injury or death, and includes an act or omission such as the failure to:

(i) establish or carry out an appropriate individual program plan or treatment plan for an individual with mental illness,

(ii) provide adequate nutrition, clothing, or health care to an individual with mental illness, or

(iii) provide a safe environment for an individual with mental illness, including the failure to maintain adequate numbers of appropriately trained staff.

(9) Unethical conduct--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.

(10) Unprofessional conduct--Conduct prohibited under rules adopted by the state licensing agency for the respective profession.

(c) An LSRH 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 current HHSC patient information and complaint line phone number. The LSRH shall ensure the following individuals are aware of the reporting requirements required under HSC §161.132.

(1) In accordance with HSC §161.132(a), a person, including an employee, volunteer, or other person associated with the LSRH 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 subsection (b) of this section) by any person, shall as soon as possible report the information supporting the belief to HHSC or to the appropriate state health care regulatory agency.

(2) In accordance with HSC §161.132(b), an LSRH employee or other person associated with the LSRH, including a health care professional, who reasonably believes or who knows of information that would reasonably cause a person to believe the LSRH, an employee, or health care professional associated with the LSRH, 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 LSRH or mental health or chemical dependency services provided in the LSRH, shall as soon as possible report the information supporting the belief to HHSC or to the appropriate state health care regulatory agency.

(d) In accordance with HSC §161.133 (relating to Inservice Training), an LSRH providing comprehensive medical rehabilitation, mental health or substance use 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 LSRH and establish a means for monitoring compliance with the requirement.

(e) A health care professional who fails to report abuse and neglect or illegal, unprofessional, or unethical conduct as required by subsection (c)(2) of this section shall be referred by HHSC to the individual's licensing board for appropriate disciplinary action.

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

Source Note: The provisions of this §511.48 adopted to be effective October 5, 2023, 48 TexReg 5668