(a) If a report required by §41.701(c) of this subchapter (relating to Reporting Allegations of Abuse, Neglect, or Exploitation of an Individual) alleges abuse, neglect, or exploitation of an individual by a staff person or a controlling person; or if an FMSA is notified by HHSC of an allegation of abuse, neglect, or exploitation by a staff person or a controlling person, the FMSA must:
  (1) take actions to secure the safety of the individual, including if necessary, ensuring that the alleged perpetrator does not have contact with the individual or any other individual receiving services from the FMSA until HHSC completes the investigation; and
  (2) preserve and protect evidence related to the allegation.
(b) Within one working day after receiving the initial intake report from HHSC for an allegation of abuse, neglect, or exploitation described in subsection (a) of this section, the FMSA must send a copy of the report by fax or secure email to:
  (1) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;
  (2) the rights protection officer, as required by §4.113 of this title (relating to Rights Protection Officer at a State MR Facility or MRA), of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or
  (3) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program.
(c) During an HHSC investigation of an alleged perpetrator who is a staff person or controlling person:
  (1) an FMSA must:
    (A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;
    (B) provide HHSC access to:
      (i) sites owned, operated, or controlled by the FMSA;
      (ii) staff persons and controlling persons; and
      (iii) records pertinent to the investigation of the allegation; and
    (C) ensure that staff persons and controlling persons comply with subparagraphs (A) and (B) of this paragraph; and
  (2) the employer or DR must:
    (A) cooperate with the investigation as requested by HHSC, including providing documentation and participating in an interview;
    (B) provide HHSC access to:
      (i) service providers; and
      (ii) records pertinent to the investigation of the allegation; and
    (C) ensure that service providers comply with subparagraph (A) of this paragraph.
(d) For an individual enrolled in:
  (1) the DBMD Program or CLASS Program, a program director is required to give the initial intake report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title (relating to Protection of Individual) or §45.702 of this title (relating to Protection of Individual, Initial and Annual Explanations, and Offering Access to Other Services); or
  (2) the HCS Program or TxHmL Program, a rights protection officer is required to give the initial intake report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title (relating to LIDDA Requirements for Providing Service Coordination in the HCS Program) or §9.583 of this title (relating to TxHmL Program Principles for LIDDAs).
(e) A case manager or service coordinator who receives an initial intake report must:
  (1) within four working days after receiving the report, convene a service planning team meeting in person or by phone to review the report and discuss the actions the employer has taken or will take, which may include:
    (A) transferring to a different FMSA in accordance with §41.403 of this chapter (relating to Transfer Process) to protect the individual during the HHSC investigation; and
    (B) requesting a voluntary suspension of participation in the CDS option in accordance with §41.405 of this chapter (relating to Suspension of Participation in the CDS Option);
  (2) document in writing any actions that have been or will be taken as a result of the allegation; and
  (3) if appropriate, recommend termination of the CDS option in accordance with §41.407 of this chapter (relating to Termination of Participation in the CDS Option).
(f) After an FMSA receives a final investigative report from HHSC for an investigation described in subsection (c) of this section, the FMSA must:
  (1) within one working day after receiving the report, send a copy of the report by fax or secure email to:
    (A) the program director of the entity employing the individual's case manager for an individual enrolled in the CLASS Program or the DBMD Program;
    (B) the rights protection officer, as required by §4.113 of this title, of the LIDDA employing the individual's service coordinator for an individual enrolled in the HCS Program or the TxHmL Program; or
    (C) the individual's HHSC regional office for an individual enrolled in the PHC Program, the CAS Program, or the FC Program; and
  (2) within five working days after receiving the report:
    (A) use the report to complete HHSC Form 1719, Notification of Investigatory Findings;
    (B) send the completed form to the alleged perpetrator; and
    (C) take action within the FMSA's authority in response to the HHSC investigation, including, disciplinary action against a staff person confirmed to have committed abuse, neglect, or exploitation.
(g) For an individual enrolled in:
  (1) the DBMD Program or CLASS Program, a program director is required to give the final investigative report received from the individual's FMSA to the individual's case manager as described in §42.401 of this title or §45.702 of this title; or
  (2) the HCS Program or TxHmL Program, a rights protection officer is required to give the final investigative report received from the individual's FMSA to the individual's service coordinator as described in §9.190 of this title or §9.583 of this title.
(h) If a final investigative report confirms the allegation, contains an inconclusive finding, or includes concerns and recommendations, a case manager or service coordinator must:
  (1) within four working days after receiving the report, convene a service planning team meeting in person or by phone to discuss the content of the report, including any concerns and recommendations by HHSC; and
  (2) document in writing any actions that have been or will be taken by the employer as a result of the findings in the report or the concerns and recommendations by HHSC.
(i) An FMSA must not retaliate against:
  (1) a staff person, individual, or other person who files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:
    (A) the use of seclusion; and
    (B) the use of a restraint not in compliance with federal and state laws, rules, and regulations; and
  (2) an individual because a person on behalf of the individual files a complaint, presents a grievance, or otherwise provides good faith information relating to the possible abuse, neglect, or exploitation of an individual, including:
    (A) the use of seclusion; and
    (B) the use of a restraint not in compliance with federal and state laws, rules, and regulations.
(j) At least annually, an FMSA must review all final investigative reports from HHSC for investigations described in subsection (c) of this section and, based on the review, identify program process improvements that help prevent the occurrence of abuse, neglect, and exploitation and improve the delivery of FMS.

Source Note: The provisions of this §41.703 adopted to be effective October 1, 2019, 44 TexReg 5074