| (a) Reporting. Incidents of abuse, neglect, exploitation,
or illegal, unethical or unprofessional conduct shall be reported
to the department as provided in subsections (b) and (c).
(b) Abuse or neglect of a child, and abuse, neglect
or exploitation of an elderly or disabled person. The following definitions
apply only to this subsection.
(1) Abuse or neglect of a child, as defined in 25 Texas
Administrative Code (TAC), §1.204(a) and (b) (relating to Investigations
of Abuse, Neglect, or Exploitation of Children or Elderly or Disabled
Persons).
(2) Abuse, neglect or exploitation of an elderly or
disabled person, as defined in §1.204(a) and (b) of this title.
(c) Abuse and neglect of individuals with mental illness,
and illegal, unethical, and unprofessional conduct. The requirements
of this subsection are in addition to the requirements of subsection
(b) of this section.
(1) Definitions. The following definitions are in accordance
with Health and Safety Code (HSC), §161.131 and apply only to
this subsection:
(A) Abuse.
(i) Abuse (as the term is defined in 42 United States
Code (USC), §10801 et seq.) is any act or failure to act by an
employee of a facility rendering care or treatment which was performed,
or which was failed to be performed, knowingly, recklessly, or intentionally,
and which caused, or may have caused, injury or death to a individual
with mental illness, and includes acts such as:
(I) the rape or sexual assault of a individual with
mental illness;
(II) the striking of a individual with mental illness;
(III) the use of excessive force when placing a individual
with mental illness in bodily restraints; and
(IV) the use of bodily or chemical restraints on a
individual with mental illness which is not in compliance with federal
and state laws and regulations.
(ii) In accordance with HSC, §161.132(j), 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.
(B) Illegal conduct--Illegal conduct (as the term is
defined in HSC, §161.131(4)) is conduct prohibited by law.
(C) Neglect--Neglect (as the term is defined in 42
USC, §10801 et seq.) is a negligent act or omission by any individual
responsible for providing services in a facility rendering care or
treatment which caused or may have caused injury or death to a individual
with mental illness or which placed a individual with mental illness
at risk of injury or death, and includes an act or omission such as
the failure to establish or carry out an appropriate individual program
plan or treatment plan for a individual with mental illness, the failure
to provide adequate nutrition, clothing, or health care to a individual
with mental illness, or the failure to provide a safe environment
for a individual with mental illness, including the failure to maintain
adequate numbers of appropriately trained staff.
(D) Unethical conduct--Unethical conduct (as the term
is defined in HSC, §161.131(11)) is 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.
(E) Unprofessional conduct--Unprofessional conduct
(as the term is defined in HSC, §161.131(12)) is conduct prohibited
under rules adopted by the state licensing agency for the respective
profession.
(2) Posting requirements. A facility 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
number of the department's patient information and complaint line
at (888) 973-0022.
(3) Reporting responsibility.
(A) Reporting abuse and neglect. A person, including
an employee, volunteer, or other person associated with the facility
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 this subsection) by
any person shall as soon as possible report the information supporting
the belief to the department or to the appropriate state health care
regulatory agency in accordance with HSC, §161.132(a).
(B) Reporting illegal, unprofessional, or unethical
conduct. An employee of or other person associated with a facility
including a health care professional, who reasonably believes or who
knows of information that would reasonably cause a person to believe
that the facility or an employee or health care professional associated
with the facility, 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 facility or mental health or chemical dependency
services provided in the facility shall as soon as possible report
the information supporting the belief to the department or to the
appropriate state health care regulatory agency in accordance with
HSC, §161.132(b).
(4) Training requirements. A facility providing mental
health or substance use services shall comply with the memorandum
of understanding (MOU) adopted by the Texas Commission on Alcohol
and Drug Abuse in 40 TAC §148.205 (relating to Training Requirements
Relating to Abuse, Neglect, and Unprofessional or Unethical Conduct).
The MOU applies to all employees and associated health care professionals
who are assigned to or who provide services in the facility.
(d) Investigations. A complaint under this subsection
will be investigated or referred by the department as follows.
(1) Allegations under subsection (b) of this section
will be investigated in accordance with TAC §1.205 of this title
(relating to Reports and Investigations of Children or Elderly or
Disabled Persons) and TAC §1.206 of this title (relating to Completion
of Investigation).
(2) Allegations under subsection (c) of this section
will be investigated in accordance with §134.81 of this title
(relating to Survey and Investigation Procedures). Allegations concerning
a health care professional's failure to report abuse and neglect or
illegal, unprofessional, or unethical conduct will not be investigated
by the department but will be referred to the individual's licensing
board for appropriate disciplinary action.
(3) Allegations under both subsections (b) and (c)
will be investigated in accordance with TAC §§1.205 and
1.206 of this title except as noted in paragraph (2) of this subsection
concerning a health care professional's failure to report.
(e) Submission of complaints. A complaint made under
this section may be submitted in writing or verbally to the Health
Facility Licensing and Compliance Division, Texas Department of
Health, 1100 West 49th Street, Austin, Texas 78756-3199, telephone,
(888) 973-0022.
(f) Notification.
(1) For complaints under subsection (b) of this section,
the department shall provide notification according to the following:
(A) The department shall notify the reporter, if known,
in writing of the outcome of the complete investigation.
(B) The department shall notify the alleged victim,
and his or her parent or guardian if a minor, in writing of the outcome
of the completed investigation.
(2) For complaints under subsection (c) of this section,
the department shall inform, in writing, the complainant who identifies
themselves by name and address of the following:
(A) the receipt of the complaint;
(B) if the complainant's allegations are potential
violations of this chapter warranting an investigation;
(C) whether the complaint will be investigated by the
department;
(D) whether and to whom the complaint will be referred;
and
(E) the findings of the complaint investigation.
(g) Department reporting and referral.
(1) Reporting health care professional to licensing
board.
Cont'd... |
