Full Opinion

Affirmed and Memorandum Opinion filed November 3, 2026 In The Fifteenth Court of Appeals NO. 15-25-00176-CV AMPARO STIEFEL, Appellant V. TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellee On Appeal from the 261st District Court Travis County, Texas Trial Court Cause No. D-1-GN-20-000724 MEMORANDUM OPINION This is an administrative appeal of the Texas Health and Human Services Commission’s decision to uphold home health aide Amparo Stiefel’s placement on the Employee Misconduct Registry. In two issues, Stiefel challenges the decision. We affirm. BACKGROUND Stiefel was employed as a home health aide by Encompass Home Health and was assigned to provide services to an elderly and disabled patient. The patient’s care plan indicated that she was to receive a partial sponge bath at every home health aide visit. On February 11, 2014, the patient requested that Stiefel give her a shower rather than a sponge bath. Stiefel complied with this request and while she was helping the patient out of the shower, the patient fell, hitting her head and suffering multiple fractures in her foot. The Texas Department of Family and Protective Services (the “Department”) has authority to investigate reports of abuse or neglect of an elderly person or person with a disability. Tex. Hum. Res. Code § 48.001. If the Department finds that an employee committed “reportable conduct,” it must report the employee to the Department of Aging and Disability Services for inclusion on the Employee Misconduct Registry (EMR). Id. § 48.403. Placement on the EMR disqualifies a person from working for certain facilities or agencies. Tex. Health & Safety Code § 253.008(b). After an investigation, the Department notified Stiefel that it had validated a finding of neglect against her, the finding constituted “reportable conduct,” and her name would be sent for inclusion on the EMR unless the finding was reversed. Stiefel requested a hearing, and on November 19, 2014, the Department referred the case to the appeals division of the Texas Health and Human Services Commission (the “Commission”) requesting the appointment of an Administrative Law Judge (ALJ). On March 20, 2015, Stiefel was notified that a final hearing had been set for May 12, 2015. On April 29, 2015, the Department provided Stiefel with the Department’s investigation records regarding her case. After a full evidentiary hearing, the ALJ issued a final order concluding that “[t]he evidence supports the conclusion that [Stiefel] committed neglect that was reportable conduct” and that her “name and information should be forwarded to the 2 Department of Aging and Disability Services to be added to the Employee Misconduct Registry.” Stiefel filed a petition for judicial review before filing a motion for rehearing and the trial court granted the Department’s plea to the jurisdiction. See Tex. Gov’t Code § 2001.145(a) (providing that a timely motion for rehearing in a contested case is a prerequisite to an appeal). While Stiefel’s appeal from the trial court’s judgment was pending, the Texas Supreme Court decided Mosley v. Texas Health & Human Services Commission 593 S.W.3d 250 (Tex. 2019). The Court held that while that the motion-for-rehearing requirement in the Administrative Procedure Act was a jurisdictional prerequisite to an administrative appeal, the Department had affirmatively misrepresented this requirement to Mosley before she sought judicial review of the Commission’s final order placing her on the EMR. Id. at 263. Because this misrepresentation was a violation of her due process rights, the Court remanded the case to the Commission to give Mosley the opportunity to file a motion for rehearing. Id. at 268. The court of appeals in Stiefel’s case granted relief consistent with that in Mosley, affirming the trial court’s order to the extent that it determined that it lacked jurisdiction due to Stiefel’s failure to file a motion for rehearing, but reversing the dismissal of Stiefel’s claims and remanding to the Department to afford Stiefel the opportunity to seek rehearing of the order entered against her. Stiefel v. Tex. Dep’t of Fam. & Protective Servs., No. 03-18-00255-CV, 2019 WL 5251127, at *1 (Tex. App.—Austin Oct. 17, 2019, no pet.). On remand, Stiefel filed a motion for rehearing in her administrative case which the ALJ denied. After Stiefel filed a petition for judicial review, the district court found that the Commission’s Order was “reasonably supported by substantial evidence and, therefore, is AFFIRMED in whole.” This appeal followed. 3 ANALYSIS Stiefel challenges the Commission’s order on two grounds. First, she claims that the decision is not supported by substantial evidence because failure to follow a care plan does not constitute negligence. And second, she claims that she was denied due process because the Department did not timely provide her with her investigative file and the Commission has failed to maintain an index of hearing orders. I. Substantial Evidence Supports the Commission’s Finding that Stiefel Committed Neglect that was Reportable Conduct. Stiefel first claims the Commission’s decision that Stiefel “committed neglect that was reportable conduct” is not supported by substantial evidence. Judicial review of an order finding that an employee has committed reportable conduct is under the substantial evidence standard. Tex. Hum. Res. Code § 48.406(c)(2). Whether an agency’s decision meets the substantial evidence standard is a question of law. Tex. Comm’n on Env’t Quality v. Maverick Cnty., 642 S.W.3d 537, 547 (Tex. 2022). “Under substantial-evidence review, we consider whether any evidence supports the agency’s determination. We ask not whether the agency’s decision is correct, but whether the record demonstrates a reasonable basis for it.” Id. (citation modified). “We must uphold the agency’s ultimate decision if the evidence is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action.” Dyer v. Tex. Comm’n on Env’t Quality, 646 S.W.3d 498, 514 (Tex. 2022) (citation modified). We presume that the agency’s findings, inferences, and conclusions are supported by substantial evidence and the contestant has the burden to prove otherwise. Maverick Cnty., 642 S.W.3d at 547. As relevant here, reportable conduct is defined as “neglect that causes or may cause death or harm to an individual receiving agency services . . . .” Tex. Hum. Res. Code § 48.401(5). Neglect is defined in the Human Resources Code as the “failure 4 of a caretaker” to provide “goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain . . . .” Tex. Hum. Res. Code § 48.002(4) Stiefel claims that under this section there is no evidence of neglect because there is no evidence that she failed to provide medical services to the patient. Rather, she showered the patient which is evidence that she actually did provide medical services. However, the Commissioner has authority to adopt an alternative definition of neglect for certain investigations. See id. § 48.002(c). And at the time of the patient’s injury in this case, the Commission defined neglect by a paid caretaker caring for an adult as: (1) the failure to provide the protection, food, shelter, or care necessary to avoid emotional harm or physical injury; or (2) a negligent act or omission that caused or may have caused emotional harm, physical injury, or death. 40 Tex. Admin. Code § 705.1009 (2015) (repealed 2021).1 Accordingly, we look to this definition of neglect that was in effect at the time and applied by the ALJ. See McWatt v. Mattax, No. 03-13-00332-CV, 2015 WL 1285793, at *1 n.3 (Tex. App.— Austin Mar. 18, 2015, no pet.) (mem. op.) (reviewing an administrative order under the administrative rule that was in effect at the time of the order but later amended). The ALJ concluded that Stiefel committed neglect because the preponderance of the evidence showed that she failed to follow the care plan that had been established for the patient, and in doing so she failed to protect the patient from physical injury. The ALJ also concluded that Stiefel’s act in giving the patient a shower rather than a sponge bath as directed in the care plan, caused the patient to 1 The definition of neglect has since been amended and can be found at 40 Tex. Admin. Code § 705.105. 5 fall and suffer an injury. Under substantial evidence review, we must determine if a reasonable basis exists for the decision. See Maverick Cnty., 642 S.W.3d at 547. Stiefel first claims that there was no evidence of a “standard of care” for a home health aide. “In a medical malpractice negligence case, the standard of care is what a doctor of ordinary prudence in that particular field would or would not have done under the circumstances.” Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019). But this is not a medical malpractice case. As discussed above, reportable conduct is neglect which is defined as a negligent act that caused physical injury. Tex. Hum. Res. Code § 48.401; 40 Tex. Admin. Code § 705.1009 (2015) (repealed 2021). And “negligence means the failure to use ordinary care—failing to do what a reasonable person like the defendant would have done under the same or similar circumstances—to protect against unreasonable risk of harm.” Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896 (Tex. 2016). We conclude that evidence of a “standard of care” was not required to support the ALJ’s conclusion that Stiefel committed neglect that was reportable conduct. Stiefel next claims that the order was based on a finding of negligence but that no qualified witness testified whether Stiefel’s actions were negligent. But we are to review whether any evidence supports an agency’s determination and we must consider the record as a whole. Maverick Cnty., 642 S.W.3d at 547; See Tex. Gov’t Code § 2001.174(E) (providing that under the substantial evidence rule, a court shall consider “the reliable and probative evidence in the record as a whole”). Accordingly, we look to the record as a whole to determine whether “the record demonstrates a reasonable basis” for the agency’s decision. Maverick Cnty., 642 S.W.3d at 547. Stiefel testified that on February 11, 2014, when she was caring for the patient, she had access to the patient’s care plan on a tablet and that she is able to read and 6 understand a care plan. The patient’s care plan provided the patient was to receive a sponge bath and Stiefel understood what a sponge bath was. Although Stiefel initially told a Department investigator that she was aware of what the care plan said, at the hearing Stiefel testified that she misunderstood the care plan and “got confused.” But rather than giving the patient a sponge bath as required by the care plan, Stiefel gave the patient a shower at the patient’s request. When the patient was getting out of the tub, her knee gave out and she and fell. The patient hit her head and fractured her foot, requiring hospitalization. Stiefel called Encompass after the patient fell. The branch director at Encompass, who had been a registered nurse for fourteen years,2 testified that a care plan is made by a medical licensed professional—a registered nurse, occupational therapist, or physical therapist—and is based on safety for the patient. The patient in this case had abnormality of gait which would increase her risk of falling. The proper procedure for bathing the patient was a sponge bath only which would be in a chair or bed. Home health care aides are not qualified to make changes to the care plan but may contact a case manager or a registered nurse in the Encompass office if they are unsure about procedure under the plan. If a patient requests something that is not on the plan of care, (such a shower in this case), a nurse, and not a home health aide, would assess whether it would be safe to provide what the patient had requested. There was no assessment by a nurse in this case because Stiefel did not call to get one. Stiefel was aware that she was supposed to call the office if she had a question about the care plan, but she did not do so. 2 Although Stiefel claims that “no qualified witness” testified that Stiefel’s actions were negligent, she does not explain how the branch director at Encompass, who had been a registered nurse for fourteen years, was not qualified to testify as to Stiefel’s actions. 7 Based on the evidence that the patient’s care plan required a sponge bath, Stiefel had access to the care plan, Stiefel was not qualified to make changes to the care plan, and Stiefel did not call a qualified professional for an assessment of a requested change to the care plan, the ALJ could have reasonably concluded that Stiefel committed neglect when she failed to follow the care plan and gave the patient a shower rather than a sponge bath. Because the record demonstrates a reasonable basis for the Commission’s decision, Stiefel failed to meet her burden to demonstrate that the decision was not supported by substantial evidence. II. Stiefel was not Deprived of Due Process. In her second issue, Stiefel claims that she was denied due process in the administrative proceedings. Under the Texas Constitution, “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. We review Stiefel’s claim that she was deprived of a constitutional right de novo. Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434, 446 (Tex. App.—Austin 2011, pet. denied). An individual is entitled to due process protections before her name is placed on the EMR. Mosley, 593 S.W.3d at 264. But before determining whether Stiefel was denied due process, we must determine what process was due to protect her interest. Id. At a minimum, due process “requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 265 (quoting Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995)). The standard for measuring the process due is flexible, depending on the practical requirements of the circumstances and includes three factors: (1) the private interest at stake; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 8 (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. The ultimate test of due process of law in an administrative proceeding “is the presence or absence of rudiments of fair play long known to our law.” Id. (quoting Martinez v. Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 405 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.)). 1. Investigative File Stiefel first complains that she was denied due process because she was not notified of how to obtain a copy of her investigative record. The Administrative Code requires that the Department must provide notice to an employee after determining that the employee committed reportable conduct. 26 TAC § 711.1413 (formerly 40 Tex. Admin. Code § 711.1413). The notice is required to include, among other things, “an explanation of how the employee may obtain a copy of the investigation records[.]” Id. § 711.1413(4). Stiefel claims that the notice she received failed to meet this requirement and that this violation was “fatal” to this case. However, the notice sent to Stiefel included a mailing address, hand delivery address, and fax number for the Department to file an appeal followed by an underlined statement that “[a]fter receipt of a timely request, a redacted copy of the investigation record will be sent to your last known address . . . .” Stiefel does not explain how this information was not sufficient to inform her of how to obtain a copy of the investigation records.3 Steifel next claims that she was deprived of due process by the Department’s failure to provide her the investigative file until thirteen days before her hearing. As to the first factor to be considered when determining what process is due, the private 3 Stiefel’s attorney requested the investigative file the month after she received the notice. 9 interest affected is the placement of Stiefel’s name on the EMR which will bar her from home health care work. Mosley, 599 S.W.3d at 265. Turning to the second factor—the risk of erroneous deprivation—we note that nothing in the Administrative Code requires the Department to provide the investigative records a certain number of days before the hearing. Nor does Stiefel claim that a certain number of days is required. We do not set out to specify when an investigative file must be provided as “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Than, 901 S.W.2d at 931 (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961)). Stiefel received the investigative file on April 29, 2015, 6 days before she was required to submit her exhibit and witness list and thirteen days before her hearing. Although Stiefel claims she was deprived of the rudiments of fair play, she does not explain how. She does not claim that she was deprived of the opportunity to be heard at a meaningful time and in a meaningful manner based on the timing of her receipt of the file. To the contrary, after receiving the file, she was represented by counsel at the hearing, presented evidence, and cross examined the Department’s witnesses. Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 802 (Tex. App.—Austin 2008, no pet.) (“A full and fair hearing includes the right to cross-examine adverse witnesses and to present and rebut evidence.”); see 40 Tex. Admin. Code § 711.1427 (2015) (repealed 2021) (setting out the procedures for an EMR hearing). Under these circumstances, the risk of an erroneous deprivation of Stiefel’s interest because of the timing of the provision of the investigative file was negligible and she has not shown a probable value of being provided the file sooner than she was. While providing the file sooner would not have placed a financial or administrative burden on the Department, balancing all the interests in light of the circumstances, we 10 conclude that due process did not require the Department to provide the file earlier than it did. 2. Index of hearing orders. Stiefel next claims that she was denied due process because the Commission failed to maintain an index of hearing orders in EMR cases that is available to the public or individuals under investigation for reportable conduct. Stiefel first points to the Administrative Code which provided that “[t]he executive commissioner may designate a Hearing Order [regarding a decision made after an EMR hearing] to be published in an Index of Hearing Orders that are deemed to have precedential authority for guiding future decisions and HHSC policy.” 40 Tex. Admin. Code § 711.1429(b) (2015) (repealed 2021) (emphasis added). But this section provides that the commissioner may designate orders to be published—the creation of an index is not required. See Gessner Eng’g, LLC v. St. Paraskevi Greek Orthodox Monastery, Inc., 507 S.W.3d 865, 869 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (recognizing that use of the word “may” in a statute creates discretionary authority). Stiefel also points to the Administrative Procedure Act which requires a state agency to “index, cross-index to statute, and make available for public inspection all final orders, decisions, and opinions.” Tex. Gov’t Code § 2001.004. But nothing in the statute requires that such an index be available for public inspection. Stiefel claims that the lack of an index means that ALJs do not take prior EMR hearings into account and individuals being investigated for reportable conduct cannot obtain guidance from orders issued in other cases. But even assuming this is true, we do not find that this posed an increase to the risk of an erroneous deprivation of a party’s interests. After an EMR hearing at which parties are given the opportunity to present evidence and respond to evidence of the other party, the rules in effect at the time of Stiefel’s hearing required an ALJ to make findings of fact and 11 conclusions of law regarding whether the employee committed abuse, neglect, or financial exploitation, and whether those actions met the definition of reportable conduct. 40 Tex. Admin. Code §§ 711.1427, 711.1429(a) (2105) (repealed 2021); see 26 Tex. Admin. Code § 561.7(f) (requiring an ALJ to make findings of fact and conclusions of law and issue a proposal for decision as to whether the reportable conduct occurred). Given this required process, which focuses on the actions of and evidence against an employee, Stiefel does not explain how the Commission’s failure to maintain an index of EMR opinion impacts the risk of an erroneous deprivation of an employee’s rights. Further, requiring the Commission to maintain a public index that is not required by statute or administrative rule would place fiscal and administrative burdens on the Commission. Balancing the factors, due process does not require the Commission to maintain a hearing index. We overrule Stiefel’s second issue. CONCLUSION We affirm the judgment of the district court. /s/ April Farris April Farris Justice Panel consists of Chief Justice Brister and Justices Field and Farris. 12