| (C) person who took the action or who failed to act
did so intentionally, knowingly, or recklessly.
(6) For a report of alleged neglect, the investigator
must find:
(A) whether there was substantial emotional harm or
physical injury of the youth as alleged;
(B) the standard of care or duty expected under the
circumstances that are alleged;
(C) whether the actions or failure to act under the
circumstances violated the standard of care or duty; and
(D) whether the actions or failure to act caused the
substantial emotional harm or physical injury of the youth.
(7) For a report of alleged exploitation, the investigator
must find whether:
(A) a youth or a youth's resources were used by the
accused person in the manner alleged;
(B) the use was for monetary or personal benefit, profit,
or gain; and
(C) the use was illegal or improper.
(8) The investigator's findings must be based on a
preponderance of the evidence.
(9) The investigator must prepare a written investigative
report of the findings, including a summary and analysis of the evidence
relied upon in reaching the findings. Copies of relevant documents
and photographs must be attached to the investigative report.
(10) The investigator may make findings on misconduct
other than abuse, neglect, or exploitation if the misconduct is established
by the evidence. However, the absence of such findings should not
be regarded as exoneration of the respondent or other employees as
to policy violations or other misconduct indicated by the evidence.
(i) Administrative Investigation Report - Submission
and Closure.
(1) The investigator must submit a written investigative
report to his/her supervisor upon completion of the investigation.
(2) The investigator's supervisor must indicate approval
of the investigation findings by closing the investigative report
and indicating the final case closure disposition. The supervisor
or designee must then ensure the appropriate facility is notified
of the findings.
(3) All closed investigative reports must contain the
signature of the supervisor who was responsible for making the final
closure determination and the signature of the investigator who gathered
the evidence in the case.
(4) In the event the investigator's supervisor disagrees
with the investigative report submitted by the investigator upon completion
of the investigation, the investigative report must:
(A) include a statement by the supervisor that describes
the reasons for his/her disagreement;
(B) be forwarded to the division director or designee
for resolution;
(C) include the signature of the division director
or designee for official closure of the investigative report.
(j) Actions in Response to a Closed Administrative
Investigation Report.
(1) Upon receipt of a closed investigative report,
the chief local administrator must review the investigative report
and:
(A) notify the youth, the youth's parents or guardian,
and the person accused of wrongdoing of the results of the investigation;
(B) notify the youth and the youth's parents of the
right to appeal the investigation findings or to file a complaint
regarding the conduct of the investigation under §380.9353 of
this title; and
(C) if the report is confirmed, take whatever actions
are necessary and appropriate to rectify the wrong and prevent future
harm under the same or similar circumstances.
(2) If the allegation was reported by a health care
professional who provides services to TJJD youth through TJJD's contract
health care provider(s), TJJD must, upon request, notify the health
care professional in writing of the results of the investigation and
the right to appeal the findings under §380.9353 of this title.
(k) Standards for Compiling Investigation Information.
(1) TJJD compiles information related to the number
and nature of reports filed, case closure dispositions, the dates
and locations of reported incidents, the average length of time required
for investigations, and any significant trends. This information must
be compiled at least twice each year and be available for public inspection.
(2) Additional information including a summary of the
findings and corrective actions taken with regard to all confirmed
reports is prepared for periodic review and analysis by the TJJD executive
staff and the TJJD governing Board.
(3) Periodic summaries of complaints and appeals regarding
investigations conducted under this rule and the final decisions regarding
the complaints or appeals are provided to the TJJD governing board
for review. The TJJD executive director or governing board will take
whatever action is determined to be appropriate with regard to the
complaint to ensure the investigations are conducted properly.
(l) Confidentiality of Reports and Investigation Information.
(1) To the extent required by state or federal law,
TJJD will release to the public, upon request, a report of alleged
or suspected abuse, neglect, or exploitation if:
(A) the report relates to a report of abuse, neglect,
or exploitation involving a child committed to TJJD during the period
that the child is committed to TJJD; and
(B) TJJD is not prohibited by Chapter 552, Government
Code, or other law from disclosing the report.
(2) Any information concerning a report of alleged
or suspected abuse, neglect, or exploitation that is disclosed will
be edited to protect the identity of:
(A) a child who is the subject of the report of alleged
or suspected mistreatment;
(B) any other youth committed to the care and custody
of TJJD who is named in the report;
(C) the person who made the report; and
(D) any other person whose life or safety may be endangered
by the disclosure.
(3) Notwithstanding any other provision permitting
the release of information, TJJD will not disclose any record or information
that, if released to the requestor, would interfere with an ongoing
criminal investigation or prosecution.
(4) An investigative report regarding an investigation
of an allegation of abuse, neglect, or exploitation will be provided
to:
(A) a law enforcement agency or other criminal justice
agency for purposes of investigation and prosecution, upon request;
(B) a parent, managing conservator, or other legal
representative of a youth, upon request. The information contained
in the report will be redacted to protect the identity of the person
making the report, other youth, and any other person who may be harmed
by the disclosure; and
(C) the healthcare provider who reported an allegation.
The information contained in the report will be redacted to protect
the identity of the person making the report, other youth, and any
other person who may be harmed by the disclosure.
(5) An investigative report and evidence gathered in
the course of an investigation may be provided to appropriate TJJD
staff for the determination of corrective actions and to employees
or former employees for use in an appeal of the investigation findings
or to defend against a disciplinary action arising from the investigation
findings.
(A) Investigative reports are confidential under Texas
Family Code Chapter 261 and may be used by the employee only for the
appeal of investigation findings or to defend against a disciplinary
action arising from an investigation.
(B) Names of individuals contained in the investigative
report or related evidence will be redacted if the names are not necessary
for the fair resolution of contested facts. Any information that is
confidential by law will be redacted prior to delivery to the respondent.
(m) Periodic Audit of Investigations. Pursuant to Family
Code §261.403(b), the TJJD governing board ensures there is a
periodic internal audit of procedures related to administrative investigations
of alleged abuse, neglect, and exploitation.
|
| Source Note: The provisions of this §380.9333 adopted to be effective August 1, 2009, 34 TexReg 4918; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639; amended to be effective July 15, 2014, 39 TexReg 5198 |
