(a) The Texas Department of Health (department) shall investigate allegations received relating to the abuse or neglect of a child or the abuse, neglect, or exploitation of an elderly or disabled person in a facility.
(b) The department will only investigate reports when:
  (1) the act is reported to have occurred in a facility and the victim was a patient or client of the facility;
  (2) the act occurred away from the facility but the facility was responsible for the supervision of the patient or client who was the victim at the time the act allegedly occurred;
  (3) the act is reported to have occurred in a facility and the alleged perpetrator was an owner, operator, manager, employee, or agent of the facility; or
  (4) the act occurred away from the facility but the facility was responsible for the supervision of the alleged perpetrator at the time the act occurred.
(c) The department shall review each allegation and determine that it is appropriate for the department to investigate the allegation.
  (1) If there is reason to suspect that the patient or client was abused, neglected, or exploited prior to admission to the facility or during an unsupervised absence from the facility, the department shall refer the allegation to the Texas Department of Protective and Regulatory Services.
  (2) If the allegation involves the actions of a licensed health care professional, the department will determine whether the allegation involves clinical issues.
    (A) The department will pursue an investigation of the portion of an allegation which does not involve clinical issues.
    (B) If the allegation involves clinical issues, the allegation shall immediately be forwarded to the state agency which licenses the health care professional involved. The identity of a person reporting abuse or neglect must be blacked out or deidentified.
  (3) The department need not investigate an allegation that clearly does not involve abuse or neglect of a child in a facility or abuse, neglect or exploitation of an elderly or disabled person in a facility. The department may refer the reporter to other agencies for assistance.
  (4) Injuries of unknown origin shall be investigated if the attending physician, after examining the patient, suspects that the injury is the result of abuse or neglect.
  (5) If an allegation involves the daily administrative operations of a facility and has not resulted in a specific case of abuse, neglect, or exploitation, such as the failure to maintain an adequate number of staff, the department need not investigate the matter under this section but may investigate the matter as a complaint investigation involving regulatory issues.
(d) Allegations which cannot be investigated by the department pursuant to the Family Code, Chapter 261, or the Human Resources Code, Chapter 48, shall be referred to the Texas Department of Protective and Regulatory Services for appropriate investigation or action consistent with existing law.
(e) The department shall make a thorough investigation promptly after receiving an allegation.
  (1) The primary purpose shall be the protection of the child or elderly or disabled person.
  (2) If a facility is licensed by the department and another state agency, the department shall notify the other agency (if the other agency is unaware of the allegation) before initiating an investigation and make a reasonable effort to coordinate the investigation and avoid duplication of effort.
  (3) If a report of serious physical injury or sexual abuse of a child is received by the department from the Texas Department of Protective and Regulatory Services, the investigation shall be conducted jointly by the appropriate local law enforcement agency and the department, if possible. The department shall document any instance in which a law enforcement agency is unable or unwilling to conduct a joint investigation.
(f) Anonymous allegations will be received and investigated following the same procedures that are used when the reporter is known.
(g) An allegation relating to a patient or client who is in the facility where the act allegedly occurred at the time of the department's receipt of the allegation shall be given priority by the department in the scheduling of investigations. An allegation relating to a patient or client who is no longer in the facility shall be given secondary priority.
(h) An investigation of abuse, neglect, or exploitation may occur in conjunction with other survey activities or complaint investigations relating to violations of federal or state laws or rules; however, the determination as to whether abuse, neglect, or exploitation has occurred or is likely to occur is a separate determination from regulatory matters and shall be made without regard as to whether law or rule violations or deficiencies are cited.
(i) An investigation shall include:
  (1) an interview with the alleged victim, if appropriate. An interview with a child alleged to be a victim of physical abuse or sexual abuse shall be audiotaped or videotaped unless the department determines that good cause exists for not audiotaping or videotaping the interview. Good cause may include, but is not limited to, such considerations as the age of the child and the nature and seriousness of the allegations under investigation. Nothing in this paragraph shall be construed as prohibiting the department from audiotaping or videotaping an interview of a child on any case for which such audiotaping or videotaping is not required under this paragraph. The fact that the department failed to audiotape or videotape an interview is admissible at the trial of the offense that is the subject of the interview;
  (2) an interview with the alleged perpetrator unless the investigator has already determined that there was no abuse, neglect, or exploitation or the risk of the same does not exist; and
  (3) consultation with persons thought to have knowledge of the circumstances.
(j) An investigation shall address the issues set forth in the:
  (1) Human Resources Code, §48.038(a), concerning elderly or disabled persons; or
  (2) Family Code, §261.401, concerning children.
(k) If during the course of the investigation it becomes apparent that the allegation is frivolous or patently without factual basis, the investigation may be closed as unfounded with supervisory approval. The reason for this determination, based on specific evidence, will be included in the report.
(l) If there is not a preponderance of the evidence to indicate that an allegation should or should not be confirmed, due to lack of witnesses or other available evidence, a finding of inconclusive may be used with supervisory approval.
(m) If during the course of the investigation it becomes apparent that abuse, neglect or exploitation has not occurred or is not likely to occur, the investigation may be closed as unfounded with supervisory approval.
(n) An investigative report shall indicate "perpetrator unknown" in those incidences where the preponderance of evidence exists to confirm abuse, neglect, or exploitation but positive identification of the person responsible cannot be determined and self injury has been eliminated as the cause. Evidence must exist that abuse, neglect, or exploitation has been committed for the term "perpetrator unknown" to be used.
(o) The department shall make a reasonable effort to notify each parent and legal guardian, if one has been appointed, of the nature of the allegation, that the interview or examination was conducted, and of the disposition of the investigation.
  (1) When during an investigation of a report of suspected child abuse or neglect a representative of the department conducts an interview with or an examination of a child, the department shall make a reasonable effort before 24 hours after the time of the interview or examination to notify each parent of the child and the child's legal guardian of the nature of the allegation and of the fact that the interview or examination was conducted.
  (2) If a report of suspected child abuse or neglect is administratively closed by the department as a result of a preliminary investigation that did not include an interview or examination of the child, the department shall make a reasonable effort before the expiration of 24 hours after the time the investigation is closed to notify each parent and legal guardian of the disposition of the investigation.
  (3) The notice required by paragraphs (1) and (2) of this subsection is not required if the department determines that the notice is likely to endanger the safety of the child who is the subject of the report, the person who made the report, or any other person who participates in the investigation of the report.
  (4) The notice required by paragraphs (1) and (2) of this subsection may be delayed at the request of a law enforcement agency if notification during the required time would interfere with an ongoing criminal investigation.

Source Note: The provisions of this §1.205 adopted to be effective November 16, 1995, 20 TexReg 9161; amended to be effective June 13, 1999, 24 TexReg 4230