Public Comment — Proposed Rules Governing Investigations of Allegations of Abuse, Neglect and Exploitation of Individuals Receiving Services from Certain Providers

Public Policy Input — 2018

TCDD letterhead May 2017

January 4, 2018

Diana Choban
APS PI Director
14000 Summit Drive
Austin, Texas 78728

Via email: APSPolicy@dfps.state.tx.us

Public Comment
Proposed Rules Governing Investigations of Allegations of Abuse, Neglect and Exploitation of Individuals Receiving Services from Certain Providers
Texas Administrative Code Title 40, Part 19, Chapter 711

The Texas Council for Developmental Disabilities (TCDD) appreciates the opportunity to comment on the proposed changes to Chapter 711 of the rules of the Department of Family and Protective Services (DFPS). TCDD is established by state and federal law and is governed by 27 board members, appointed by the Governor, 60% of whom are individuals with developmental disabilities or family members of individuals with disabilities. TCDD’s purpose in law is to encourage policy change so that people with intellectual and developmental disabilities (IDD) have opportunities to be fully included in their communities, exercise control over their own lives, and live free from abuse, neglect, and exploitation (ANE).

Please note that the number of individuals with IDD who were affected by DFPS policies for Adult Protective Services (APS) in 2016 is considerable. In the latest published DFPS data (2016)[1. Texas Department of Family and Protective Services’ APS Provider Investigations: Victims webpage, www.dfps.state.tx.us/About_DFPS/Data_Book/Adult_Protective_Services/Provider_Investigations/Investigations-Victims.asp, accessed January 4, 2018.], APS does not cite the number of individuals with IDD for which investigations have been completed, but it does indicate that investigations associated with providers who serve individuals with IDD (exclusively or in part) total 20,495[2. The number 20,495 comprises state supported living centers (5,271), HCS homes (5,086), community providers (7,211), private ICF-IID (1,659), community centers (613), and state centers (205). This number excludes completed investigations at state hospitals (3,421), although state hospitals also serve a limited number of individuals who have IDD.].

TCDD has concerns with changes proposed in the December 8, 2017, “Texas Register”, as follows:

  1. Proposed changes reverse investigatory improvements made over a period of more than two decades. In 1992, responsibility for investigations was moved from the agency with management and oversight for state facilities and community programs (the Texas Department of Mental Health and Mental Retardation) to the Department of Protective and Regulatory Services. This change was made to decrease the potential for conflict of interest by ensuring that investigators work for and report to an external agency, not the agency responsible for the site where an incident occurred. The concentration of this investigatory authority in an external agency led to the development of a uniformly trained cadre of investigators who follow the same rules and procedures statewide.
  2. Referring allegations against professionals to their licensing boards introduces inequities for both staff and for people receiving services. The investigatory priorities, protocols, and definitions that each licensing board follows are diverse and are not the same as those followed by APS. Further, if a licensing board determines an allegation does not involve a violation of licensing standards, then the allegation is re-referred to the facility or program from which it came. These individual settings are not staffed to investigate ANE and the staff are not trained in procedures that would help to ensure a thorough, even-handed investigation based on the timely collection of evidence and interviews.
  3. Under the proposed rules, direct care staff who are not licensed will be subject to a more thorough investigation by DFPS than professional staff, who will be investigated by only a licensing board and/or untrained on-site staff. In fact, some allegations against professionals may involve violations of both licensing board standards and DFPS rules, yet allegations against licensed professionals will not be investigated by professionally trained DFPS investigators. This disparity in investigatory rigor is indefensible, especially considering that under current rules, DFPS refers a confirmed allegation against a professional to the professional’s licensure board, and it can also refer the matter to the Office of Inspector General who can then refer the case to the District Attorney (as is done with confirmed allegations against staff who are not licensed professionals).
  4. Referring allegations to licensing boards does not provide the supports that people with disabilities may require to successfully represent themselves or communicate evidentiary information. Board processes developed for interacting with licensed professionals and members of the general public would not generally take into account the communications needs of people with disabilities. Some investigatory techniques can retraumatize any person who has been victimized, especially if the allegation involves physical or sexual abuse, by asking the individual to identify the perpetrator and describe and answer specific questions about the nature of alleged victimization. This may be more pronounced in some individuals with IDD. Board investigators who deal with a broad range of complaints and allegations, most of which are not made by, or on behalf of, people with disabilities, would require training to understand how different disabilities may affect an individual’s behaviors, how best to communicate with the individual, and how to interpret an individual’s response to the alleged ANE. Further, under APS investigatory rules, the alleged perpetrator and victim would be separated until the investigation is complete and the allegation is not confirmed. Similar provisions do not uniformly exist in the investigatory protocols of licensing boards.
  5. APS has distinguished itself for the quality of its investigations. As a result, the state expanded the scope of APS investigations in 2015. The resulting increase in allegations created a backlog, particularly in state psychiatric hospitals. Delays in investigations led to the introduction of short cuts, such as relaxing the requirement for face-to-face interviews with persons receiving services in community programs. The proposal would further expand the scope of these substandard investigatory practices, including adopting a rubber stamp method for documenting investigations that is lacking details that would enable a decision to be appealed by either party.
  6. Any changes to core definitions need to be carefully reconsidered, especially when the changes subvert meaning and longstanding protective intent in order to reduce investigations. For example, in contrast to the current definition of “neglect,” the proposal would require an individual to be injured before a caregiver’s failure to provide appropriate care would be investigated. Another example is redefining “exploitation” to exclude anything that is less than $25 in value. These proposed changes are not consistent with the protection of individuals with disabilities, nor are they consistent with definitions of abuse, neglect, and exploitation as they are understood by the general population in the community at large.

TCDD stands in agreement with other commenters who note these same types of concerns.

Respectfully submitted,
Linda Logan, MPAff
Public Policy Specialist