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TITLE 25HEALTH SERVICES
PART 1DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 417AGENCY AND FACILITY RESPONSIBILITIES
SUBCHAPTER KABUSE, NEGLECT, AND EXPLOITATION IN TDMHMR FACILITIES
RULE §417.504Prohibition and Definitions of Abuse, Neglect, and Exploitation

(a) Abuse, neglect, and exploitation of any person served is prohibited.

(b) Consistent with Chapter 711 of Title 40 (concerning Investigations in TDMHMR Facilities and Related Programs), the terms "abuse," "neglect," and "exploitation" are defined as follows when the alleged perpetrator is an employee, agent, contractor, or is unknown.

  (1) Abuse is:

    (A) physical abuse, which is:

      (i) an act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to a person served;

      (ii) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to a person served; or

      (iii) the use of chemical or bodily restraints on a person served not in compliance with federal and state laws and regulations, including:

        (I) Chapter 405, Subchapter F of this title (concerning Voluntary and Involuntary Behavioral Interventions in Mental Health Programs); and

        (II) Chapter 405, Subchapter H of this title (concerning Behavior Management--Facilities Serving Persons with Mental Retardation);

    (B) sexual abuse, which is any sexual activity involving an employee, agent, or contractor and a person served, including but not limited to:

      (i) kissing a person served with sexual intent;

      (ii) hugging a person served with sexual intent;

      (iii) stroking a person served with sexual intent;

      (iv) fondling a person served with sexual intent;

      (v) engaging in with a person served:

        (I) sexual conduct as defined in the Texas Penal Code, §43.01; or

        (II) any activity that is obscene as defined in the Texas Penal Code, §43.21;

      (vi) requesting, soliciting, or compelling a person served to engage in:

        (I) sexual conduct as defined in the Texas Penal Code, §43.01; or

        (II) any activity that is obscene as defined in the Texas Penal Code, §43.21;

      (vii) in the presence of a person served:

        (I) engaging in or displaying any activity that is obscene, as defined in the Texas Penal Code §43.21; or

        (II) requesting, soliciting, or compelling another person to engage in any activity that is obscene, as defined in the Texas Penal Code §43.21;

      (viii) committing sexual exploitation, as defined in the Texas Civil Practice and Remedies Code, §81.001, against a person served. A copy of the Texas Civil Practice and Remedies Code, §81.001, is referenced as Exhibit A in §417.516 of this title (relating to Exhibits);

      (ix) committing sexual assault as defined in the Texas Penal Code §22.011, against a person served;

      (x) committing aggravated sexual assault as defined in the Texas Penal Code, §22.021, against a person served; and

      (xi) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, videotaping, or depicting of a person served if the employee, agent, or contractor knew or should have known that the resulting photograph, film, videotape, or depiction of the person served is obscene as defined in the Texas Penal Code, §43.21, or is pornographic; and

    (C) verbal/emotional abuse, which is any act or use of verbal or other communication, including gestures, to curse, vilify, or degrade a person served or threaten a person served with physical or emotional harm, that results in observable distress or harm to the person served or be of such a serious nature that a reasonable person would consider it harmful or causing distress.

  (2) Neglect is a negligent act or omission by any individual responsible for providing services to a person served, which caused or may have caused physical or emotional injury or death to a person served or which placed a person served at risk of physical or emotional injury or death. Neglect includes, but is not limited to, the failure to:

    (A) establish or carry out an appropriate individual program plan or treatment plan for a person served if such failure results in a specific incident or allegation involving a person served;

    (B) provide adequate nutrition, clothing, or health care to a specific person served; or

    (C) provide a safe environment for a specific person served, including the failure to maintain adequate numbers of appropriately trained staff if such failure results in a specific incident or allegation involving a person served.

  (3) Exploitation is the illegal or improper act or process of using a person served or the resources of a person served for monetary or personal benefit, profit, or gain.

(c) Abuse, neglect, or exploitation does not include:

  (1) the proper use of restraints and seclusion, including PMAB, and the approved application of behavior modification techniques as described in:

    (A) Chapter 405, Subchapter F of this title, relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs;

    (B) Chapter 404, Subchapter E of this title, relating to Rights of Persons Receiving Mental Health Services; and

    (C) Chapter 405, Subchapter H of this title, relating to Behavior Management--Facilities Serving Persons With Mental Retardation;

  (2) other actions taken in accordance with TDMHMR rules;

  (3) such actions as an employee/agent/ contractor may reasonably believe to be immediately necessary to avoid imminent harm to self, persons served, 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, including PMAB; or

  (4) general complaints (e.g., regarding rights violations; theft of property; the daily administrative operations of a facility). (Within 24 hours of receipt of such a complaint, the APS investigator refers the complaint to the head of the facility using the Adult Protective Services Referral Form, who ensures the complaint is investigated administratively by the head of the facility, the facility rights officer, or other appropriate parties.)


Source Note: The provisions of this §417.504 adopted to be effective April 23, 2003, 28 TexReg 3354; amended to be effective February 4, 2004, 29 TexReg 999

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