(a) Abuse defined.
  (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 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 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 Health and Safety Code, 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 the Health and Safety Code, Chapter 481.
  (2) Abuse of an elderly or disabled person means:
    (A) the negligent or wilful 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.
  (3) Abuse does not include:
    (A) the proper use of restraints or seclusion in accordance with federal or state laws or regulations or court order;
    (B) other actions taken in accordance with federal or state laws or regulations or court order;
    (C) 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
    (D) complaints related to the daily administrative operations of a facility (e.g., staffing ratios).
(b) Neglect defined.
  (1) 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.
  (2) 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.
(c) Exploitation defined. 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.

Source Note: The provisions of this §1.204 adopted to be effective November 16, 1995, 20 TexReg 9161; amended to be effective June 13, 1999, 24 TexReg 4230