25 TAC §§415.351 - 415.366
The Texas Department of Mental Health and Mental Retardation
(department) proposes new §§415.351 - 415.366 of new Chapter 415,
Subchapter H, governing the use of restraint in state mental retardation facilities.
The new subchapter describes policies and procedures that a state mental
retardation facility (state MR facility) must implement to ensure that the
health, safety, welfare, rights, and privileges of an individual residing
in the state MR facility are protected during the use of restraint. Currently,
the use of restraint in state MR facilities is addressed briefly in Chapter
405, Subchapter H, governing behavior management--facilities serving persons
with mental retardation, which is proposed for repeal contemporaneously in
this issue of the
Texas Register
.
Although most provisions in the new subchapter describe existing policies
and procedures followed by state MR facilities, a few notable requirements
are new. For example, §415.355(b) requires a state MR facility's interdisciplinary
team (IDT), with the involvement of a physician, to identify a newly admitted
individual's known physical or medical conditions that might constitute a
risk to the individual during the use of restraint. Further, the IDT is required
to identify other factors, such as the individual's cognitive functioning
level, size, weight, emotional condition (including whether the individual
has a history of having been physically or sexually abused), or age, which
must be taken into account if the use of restraint is considered. The IDT
must document this information, as well as any limitations on specific techniques
or mechanical devices for restraint identified by the IDT, in the individual's
record. Subsection (c) requires that at least annually, or whenever significant
changes occur in the identified conditions and factors, that the IDT must,
with the involvement of a physician, advanced practice nurse, or physician
assistant, review and update the identified conditions, factors, and limitations
in the individual's record. Other new requirements of note: in §415.356(e)-(g),
the state MR facility must designate staff as "restraint monitor" who, upon
being notified that restraint is in use in a behavioral emergency, must go
to the site of the restraint to provide supervision and oversight; and, in §415.362(a),
when an individual is seriously injured or dies while in restraint an immediate
report must be made to the head of the state MR facility or designee who must,
within one hour of receiving the report, notify the department's Central Office
and initiate an investigation.
Restraint is defined in new §415.353(13) as the use of manual pressure,
except for physical guidance or prompting of brief duration, or a mechanical
device to restrict: (1) the free movement or normal functioning of the whole
or a portion of an individual's body or (2) normal access by the individual
to a portion of the individual's body. This definition is more prescriptive
than the prevailing operational definition of the term, i.e., restraint is
an intervention employed to address an individual's inappropriate behavior.
The premise of the new subchapter is that the use of certain techniques or
mechanical devices constitute restraint whether they are used to prevent injury
when an individual engages in voluntary, inappropriate behavior such as head
banging or to protect an individual who experiences involuntary movements,
such as violent seizures. The proposed definition effectively re-categorizes
as restraint some techniques commonly used by state MR facilities to protect
an individual from involuntary self-injury, provide postural support to an
individual, or assist an individual in obtaining and maintaining normative
bodily functioning. The department explicitly states in §§415.359
and 415.360 that not all techniques used by a state MR facility to protect
an individual from involuntary self-injury, provide postural support, or assist
in obtaining and maintaining normative bodily functioning meet the definition
of restraint. Such techniques, such as the placement of wedges, bolsters,
or cushions to position an individual in a bed or chair, do not meet the definition
of restraint and are not subject to the provisions of this subchapter.
In §415.354, a state MR facility is required to develop and implement
written policies and procedures that, among other things, emphasize the department's
commitment to providing treatment that is the least restrictive and most effective
alternative available for an individual; staff training that emphasizes early
recognition of situations and behaviors that, if not appropriately addressed,
could necessitate the use of restraint in a behavioral emergency; and reducing
the necessity for the use of restraint in the state MR facility.
General requirements for the use of restraint are detailed in §415.355,
many of which describe existing practices that all state MR facilities follow
to ensure the protection of an individual's rights and well-being. Most of
these practices have their basis in the federal regulations governing the
Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR)
Program at Code of Federal Regulations (CFR), Title 42, §483.450(d),
concerning physical restraints, in the Conditions of Participation for Intermediate
Care Facilities for Persons with Mental Retardation.
In the next five sections, the department describes the five circumstances
under which the use of restraint is permitted with an individual who resides
in a state MR facility: in a behavioral emergency (§415.356); as an intervention
in a behavior therapy program that addresses inappropriate behavior exhibited
voluntarily by an individual (§415.357); during a medical or dental procedure
if necessary to protect the individual or others and as a follow-up after
a medical or dental procedure or following an injury to promote the healing
of wounds (§415.358); to protect the individual from involuntary self-injury
(§415.359); and to provide postural support to the individual or to assist
the individual in obtaining and maintaining normative bodily functioning (§415.360).
In §415.361, the department specifies that only those mechanical devices
designed specifically for the safe and relatively comfortable restraint of
humans may be used in the restraint of an individual in a state MR facility.
Such devices include commercially available devices acquired by the state
MR facility, devices that have been developed independently by or on behalf
of the state MR facility, or commercially available mechanical devices that
have been altered to accommodate an individual's specific physical needs (e.g.,
a physical impairment or obesity). In subsection (b), the department describes
the process a state MR facility must follow to obtain approval for use of
a mechanical device developed independently by or on behalf of the state MR
facility or the alteration of a commercially available device to accommodate
an individual's specific physical needs. The section also describes precautions
that staff must take in the use of mechanical devices, lists and describes
mechanical devices that are acceptable for use in a state MR facility, and
lists devices that must not be used.
Additional reporting and documentation requirements are described in §415.362
relative to the use of restraint. As noted earlier in this preamble, the most
significant provision is the requirement that the head of the state MR facility
must be notified immediately, but in no case more than one hour, after staff
learn of a serious injury to or death of an individual that occurs while the
individual is in restraint. The head of the state MR facility is required
to report the death or serious injury within one working day to the State
MR Facilities Division in the department's Central Office and to designate
staff to investigate the incident.
Requirements for initial and refresher training are set forth in §415.363.
The department developed the new subchapter and related new Subchapter
412, Subchapter I, governing behavior therapy in state mental retardation
facilities, which is published for public review and comment in this issue
of the
Texas Register
, in response to recent
and considerable interest at the federal and state levels by legislators and
advocate/stakeholder groups and by state and national media concerning the
use of restraint in all institutional settings.
Although recent new statutes and regulations on the federal level have
addressed the use of restraint in hospitals and residential care facilities,
new federal directives have not been issued regarding ICFs/MR. State MR facilities
have based their polices and procedures concerning the use of restraint on
the federal regulations governing the ICF/MR Program and on licensure rules
issued by the Texas Department of Human Services (TDHS). The TDHS rule provisions
related to restraint are found at Texas Administrative Code, Title 40, §90.42,
governing standards for facilities serving persons with mental retardation
or related conditions. During the recently adjourned 78th Legislature, Senate
Bill 59 was introduced that would have addressed the use of restraint in certain
health care facilities, including state MR facilities. The bill was not passed;
however, certain provisions have been incorporated in this subchapter although
the department's Prevention and Management of Aggressive Behavior (PMAB) curriculum
addresses these issues in detail. One of those provisions is found in §415.355(f),
which forbids the use of restraint in a manner that obstructs an individual's
airway, impairs an individual's breathing by putting pressure on the individual's
torso, or interferes with an individual's ability to communicate. A second
provision of the failed bill is addressed in §415.356(d), which directs
that staff must avoid placing an individual in a prone or supine position
during the use of personal restraint and, if the individual should roll into
a prone or supine position during personal restraint, restore the individual
to a standing, sitting, or side position as soon as possible.
The new subchapter is more prescriptive than the federal regulations governing
the ICF/MR Program. For example, the interpretive guidelines to the federal
regulations at 42 CFR §483.440(c)(6)(iv) specifically state that the
use of mechanical devices to protect an individual from injury due to the
individual's involuntary movements (i.e., during a seizure) or to position
or support an individual does not constitute restraint. As noted earlier in
this preamble, the new subchapter specifies that if the use of a mechanical
device to protect an individual from involuntary self-injury or to position
or support an individual meets the definition of restraint (i.e., a vest or
seat belt that restricts the free movement or normal functioning of the whole
or a portion of an individual's body or restricts normal access by the individual
to a portion of the individual's body), then that use constitutes restraint.
Cindy Brown, chief financial officer, has determined that for each year
of the first five year period that the proposed new subchapter is in effect,
enforcing or administering the subchapter does have foreseeable implications
relating to costs or revenues of state government. State MR facilities may
incur additional training costs related to materials, time, and staff in order
to comply with the proposed new subchapter. It is not anticipated that the
proposed new subchapter will have an adverse economic effect on small businesses
or micro-businesses. It is not anticipated that there will be any additional
economic cost to persons required to comply with the proposed new subchapter.
It is not anticipated that the proposed new subchapter will affect a local
economy.
Robert Kifowit, director, State Mental Retardation Facilities, has determined
that, for each year of the first five-year period the proposed new subchapter
is in effect, the public benefit expected is that the rights and physical
well-being of individuals residing in state MR facilities will be protected
during the use of restraint.
Comments concerning the proposed new subchapter must be submitted in writing
to Linda Logan, director, Policy Development, by mail to P.O. Box 12668, Austin,
Texas 78711, by fax to 512/206-4744, or by e-mail to policy.co@mhmr.state.tx.us
within 30 days of publication of this notice.
A hearing to accept oral and written testimony from members of the public
concerning the proposal has been scheduled for 1:30 p.m., Friday, February
13, 2004, in Building 2, Room 240 of the department's Central Office at 909
West 45th Street, in Austin, Texas. Persons requiring an interpreter for the
deaf or hearing impaired should contact the department's Central Office operator
at least 72 hours prior to the hearing at TDD (512) 206-5330. Persons requiring
other accommodations for a disability should notify State Mental Retardation
Facilities in Central Office at least 72 hours prior to the hearing at (512)
206-4538 or at the TDY phone number of Texas Relay, 1/800-735-2988.
The new subchapter is proposed under the Texas Health and Safety
Code (THSC), §532.015(a), which provides the Texas Mental Health and
Mental Retardation Board (board) with broad rulemaking authority; THSC, §591.004,
which requires the board to ensure the implementation of the Persons with
Mental Retardation Act (THSC, Title 7, Subtitle D); and THSC, §592.002,
which requires the board to ensure the implementation of certain rights enumerated
in THSC, Chapter 592.
The proposed new subchapter affects THSC, Title 7, Subtitle D, and Chapter
592.
§415.351.Purpose.
The purpose of this subchapter is to:
(1)
ensure that the rights and physical well-being of an individual
residing in a state mental retardation facility (state MR facility) are protected
during the use of restraint; and
(2)
outline policies and procedures for initiating, monitoring,
and reporting the use of restraint.
§415.352.Application.
This subchapter applies to state MR facilities.
§415.353.Definitions.
The following words and terms, when used in this subchapter, have
the following meanings unless the context clearly indicates otherwise.
(1)
Behavior therapy--Systematic efforts to increase adaptive
behaviors and to modify maladaptive or problem behaviors and replace them
with behaviors that are adaptive and socially acceptable.
(2)
Behavioral emergency--A situation in which severely aggressive,
destructive, or violent behavior exhibited by an individual or overt or continual
threats made by an individual:
(A)
poses a substantial risk of imminent probable death of
or substantial bodily harm to the individual or others;
(B)
has not abated in response to attempted preventive de-escalatory
or redirection techniques;
(C)
could not reasonably have been anticipated;
(D)
is not addressed in a behavior therapy program; and
(E)
does not occur during a medical or dental procedure.
(3)
CFR (Code of Federal Regulations)--The compilation of federal
agency regulations.
(4)
IDT (interdisciplinary team)--Mental retardation professionals
and paraprofessionals and other concerned persons, as appropriate, who assess
an individual's treatment, training, and habilitation needs and make recommendations
for services.
(A)
Team membership always includes:
(i)
the individual;
(ii)
the individual's LAR, if any; and
(iii)
persons specified by a state MR facility who are professionally
qualified and/or certified or licensed with special training and experience
in the diagnosis, management, needs, and treatment of individuals with mental
retardation.
(B)
Other participants in IDT meetings may include:
(i)
other concerned persons whose inclusion is requested by
the individual or the LAR; and
(ii)
at the discretion of the state MR facility, persons who
are directly involved in the delivery of mental retardation services to the
individual.
(5)
Individual--A person with mental retardation who resides
in a state MR facility.
(6)
IPP (individual program plan)--A plan developed by an individual's
IDT that identifies the individual's training, treatment, and habilitation
needs and describes appropriate services and supports to meet those needs.
(7)
LAR (legally authorized representative)--A person authorized
by law to act on behalf of an individual with regard to a matter described
in this subchapter, and may include a parent, guardian, managing conservator
of a minor individual, or a guardian of an adult individual.
(8)
Legally adequate consent--A term consistent with provisions
of the Texas Health and Safety Code (THSC), Title 7, §591.006, which
states, in essence, that consent obtained from an individual with mental retardation
is legally adequate when each of the following conditions has been met:
(A)
legal status: The individual giving the consent:
(i)
is 18 years of age or older, or younger than 18 years of
age and is or has been married or had the disabilities of minority removed
for general purposes by court order as described in the Texas Family Code,
Chapter 31; and
(ii)
has not been determined by a court to lack capacity to
make decisions with regard to the matter for which consent is being sought.
(B)
comprehension of information: The individual giving the
consent has been informed of and comprehends the nature, purpose, consequences,
risks, and benefits of and alternatives to the procedure, and the fact that
withholding or withdrawal of consent shall not prejudice the future provision
of care and services to the individual with mental retardation; and
(C)
voluntariness: The consent has been given voluntarily and
free from coercion and undue influence.
(9)
Mechanical device--A piece of equipment or an apparatus
used in the safe and relatively comfortable restraint of individuals.
(10)
Medical emergency--A situation in which acute, non-psychiatric
signs and symptoms, including severe pain, exhibited by an individual require
immediate attention by a physician or nurse:
(A)
to preclude serious impairment to normal functioning of
one or more of the individual's body parts or organs; or
(B)
if the individual is a pregnant woman, to prevent irreversible
harm to the woman or the woman's unborn child.
(11)
PMAB (Prevention and Management of Aggressive Behavior)--The
department's proprietary risk management curriculum that is intended to reduce
the likelihood of injuries caused by the aggressive behavior of individuals
receiving department services. The curriculum presents a graduated system
of interventions that rely on the least restrictive approaches possible to
respond to a behavioral emergency.
(12)
Qualified mental retardation professional (QMRP)--A state
MR facility employee responsible for integrating, coordinating, and monitoring
an individual's IPP who meets the requirements of 42 CFR Title 42 §483.430.
(13)
Restraint--The use of manual pressure, except for physical
guidance or prompting of brief duration, or a mechanical device to restrict:
(A)
the free movement or normal functioning of the whole or
a portion of an individual's body; or
(B)
normal access by the individual to a portion of the individual's
body.
(14)
Restraint monitor--An employee of the state MR facility
who:
(A)
has experience working directly with persons with mental
retardation; and
(B)
is designated to:
(i)
go to a site where restraint in a behavioral emergency
is implemented; and
(ii)
provide supervision and oversight.
(15)
State MR facility--A state mental retardation facility,
i.e., a state school or state center operated by the department that provides
residential services to individuals with mental retardation.
§415.354.General Provisions.
(a)
Each state MR facility must have and implement written
policies and procedures that:
(1)
do not conflict with this subchapter or those provisions
of the Conditions of Participation for Intermediate Care Facilities for Persons
with Mental Retardation (42 CFR §483.410-483.480, et. seq.) concerning
the management of inappropriate behavior;
(2)
emphasize the department's commitment to:
(A)
providing treatment that is the least restrictive and most
effective alternative available for an individual;
(B)
staff training that emphasizes early recognition of situations
and behaviors that, if not appropriately addressed, could necessitate the
use of restraint in a behavioral emergency; and
(C)
reducing the necessity for the use of restraint;
(3)
detail requirements for documenting and reporting the use
of restraint, including instances when an individual:
(A)
is seriously injured or dies while in restraint during
a behavioral emergency or as part of a behavior therapy program; or
(B)
dies within 24 hours after being released from a restraint
used during a behavioral emergency or as part of a behavior therapy program;
and
(4)
detail the training and demonstration of competence requirements
for state MR facility staff.
(b)
The standards in this subchapter take precedence over other
applicable standards, including the Conditions of Participation for Intermediate
Care Facilities for Persons with Mental Retardation (42 CFR, §§483.410-483.480,
et. seq.), whenever the other applicable standards are less restrictive.
§415.355.General Principles for the Use of Restraint.
(a)
The general principles listed in this subsection apply
to the use of restraint in each of the following circumstances, unless explicitly
stated otherwise:
(1)
in a behavioral emergency;
(2)
as an intervention in a behavior therapy program that addresses
inappropriate behavior exhibited voluntarily by an individual (e.g., prevention
gouging of the individual's own eyes through the use of elbow immobilizers);
(3)
during a medical or dental procedure if necessary to protect
the individual or others and as a follow-up after a medical or dental procedure
or following an injury to promote the healing of wounds;
(4)
to protect the individual from involuntary self-injury
(e.g., helmet for an individual who, during seizures, looses consciousness,
falls to the floor, and risks head injuries), although not all techniques
used by a state MR facility to protect an individual from involuntary self-injury
constitute the use of restraint; and
(5)
to provide postural support to the individual or to assist
the individual in obtaining and maintaining normative bodily functioning,
although not all techniques used by a state MR facility to provide postural
support or assist in obtaining and maintaining constitute the use of restraint.
(b)
Upon an individual's admission to a state MR facility,
an IDT must:
(1)
with the involvement of a physician, identify:
(A)
the individual's known physical or medical conditions that
might constitute a risk to the individual during the use of restraint; and
(B)
other factors that must be taken into account if the use
of restraint is considered including, but not limited to, the individual's
cognitive functioning level, size, weight, emotional condition (including
whether the individual has a history of having been physically or sexually
abused), and age; and
(2)
document the identified conditions and factors and, as
applicable, limitations on specific techniques or mechanical devices for restraint,
in the individual's record.
(c)
At least annually, or when significant changes occur to
the extent and nature of the identified conditions and factors documented
in the individual's record, the IDT must ensure that a physician, advanced
practice nurse, or physician assistant reviews and updates, as necessary,
the identified conditions, factors, and limitations on specific techniques
or mechanical devices for restraint documented in the individual's record.
(d)
Before restraint is used with an individual, state MR facility
staff must determine that less restrictive, less intrusive interventions will
be ineffective.
(e)
Restraint must never be used:
(1)
for disciplinary purposes;
(2)
for the convenience of staff or other individuals; or
(3)
as a substitute for effective treatment or habilitation.
(f)
Restraint must be used for the shortest period of time
necessary to ensure:
(1)
protection for the individual or others in a behavioral
emergency; and
(2)
therapeutic effectiveness;
(A)
as part of a behavior therapy program;
(B)
as part of a medical or dental procedure; and
(C)
in protecting against involuntary self-injury.
(g)
Restraint must not be used in a way that:
(1)
obstructs the individual's airway;
(2)
impairs the individual's breathing by putting pressure
on the individual's torso; or
(3)
interferes with the individual's ability to communicate.
(h)
Restraint must be implemented in a manner that:
(1)
takes into consideration the individual's known physical
or medical conditions that might constitute a risk to the individual during
restraint, as documented in the individual's record in accordance with subsections
(b)(2) and (c ) of this section;
(2)
takes into consideration other factors, including the individual's
cognitive functioning level, size, weight, known physical, medical, and emotional
condition, and age, as documented in the individual's record in accordance
with subsections (b)(2) and (c) of this section;
(3)
is consistent with the limitations on specific techniques
or mechanical devices for restraint documented in the individual's record
in accordance with subsections (b)(2) and (c) of this section;
(4)
reduces the risk of injury or undue physical discomfort
to the individual; and
(5)
safeguards the individual's dignity, privacy, and well-being.
(i)
Restraint must be implemented:
(1)
with only the minimal amount of force or pressure that
is reasonable and necessary to ensure the safety of the individual and others.
(2)
without securing the individual to a stationary object
while the individual is in a standing position;
(3)
without causing pain that restricts the individual's movement;
and
(4)
without violating the individual's rights as described
in §405.625 of this title (relating to Rights of Clients Receiving Residential
Mental Retardation Services).
(j)
Restraint must be authorized as described in:
(1)
§415.356 of this title (relating to Use of Restraint
in a Behavioral Emergency);
(2)
§415.357 of this title (relating to Use of Restraint
in a Behavior Therapy Program);
(3)
§415.358 of this title (relating to Use of Restraint
During Medical or Dental Procedures);
(4)
§415.359 of this title (relating to Use of Restraint
with a Mechanical Device to Protect an Individual from Involuntary Self-Injury;
or
(5)
§415.360 of this title (relating to Use of Restraint
with a Mechanical Device to Provide Postural Support.
(k)
When an individual is restrained, staff must ensure that
the individual is:
(1)
provided immediate relief, which may include immediate
release from restraint, and checked by a nurse if the individual shows signs
or symptoms of physical distress;
(2)
provided with medications as prescribed;
(3)
offered regular meals and snacks or, as appropriate, a
nutritionally equivalent substitute;
(4)
monitored to the extent necessary, with consideration given
to the individual's position, level of agitation, and the identified conditions
and factors documented in the individual's record as described in subsection
(b)(2) of this section to:
(A)
prevent the individual from choking or aspirating food
or fluid; and
(B)
protect the individual from physical distress, self-injury,
or injury by another individual. (For example, an individual in four-point
restraint should be monitored continuously by staff, while an individual wearing
a helmet or mittens may not require continuous monitoring.); and
(5)
made comfortable to the extent appropriate if the individual
falls asleep while being restrained with a mechanical device. (For example,
straps may be loosened or removed.)
(l)
At shift change, staff going off-duty must meet with staff
coming on-duty who will be responsible for the care of an individual who is
in restraint as a result of a behavioral emergency or as part of a behavior
therapy program.
(m)
All communication with an individual concerning the use
of restraint must be:
(1)
conducted in a language or method that is understandable
by the individual;
(2)
tailored to the individual's ability to comprehend; and
(3)
responsive to any visual or hearing impairment the individual
is known to have.
(n)
If an individual in restraint experiences a medical emergency,
staff must:
(1)
release the individual from restraint as soon as possible
as indicated by the medical emergency; and
(2)
ensure that the medical emergency is promptly addressed
as described in the state MR facility's policies and procedures concerning
management of a medical emergency.
(o)
If an emergency evacuation or an evacuation drill occurs
while an individual is in restraint, staff will respond as described in the
state MR facility's policies and procedures to ensure the individual's safety.
(p)
If an individual is involved in a program outside the state
MR facility, e.g., attending public school or working, the state MR facility
will:
(1)
coordinate with staff from the outside program in the assessment
and development of interventions with the goal of consistency in the use of
restraint:
(A)
in a behavioral emergency; and
(B)
as an intervention in a behavior therapy program; and
(2)
invite staff of the outside program to participate in IDT
meetings at which interventions, including behavior therapy programs, are
discussed.
§415.356.Use of Restraint in a Behavioral Emergency.
(a)
A physician must not issue a standing or "as needed" order
for the use of restraint in a behavioral emergency.
(b)
If an individual exhibits behavior that staff believe is
likely to escalate into a behavioral emergency, staff first should attempt
verbal or other de-escalative interventions in which they have been trained
as described in §415.363(b) of this title (relating to Staff Training
in the Use of Restraint).
(c)
If the individual's behavior escalates into a behavioral
emergency, one or more staff may initiate:
(1)
personal restraint as instructed during Prevention and
Management of Aggressive Behavior (PMAB) training provided by the state MR
facility as described in §415.363(b) of this title (relating to Staff
Training in the Use of Restraint); or
(2)
in the rare situation when PMAB procedures cannot be safely
applied, staff may take such actions as are reasonably believed to be immediately
necessary to avoid imminent harm to the individual or others, including the
use of a mechanical device, as long as those actions do not include acts of
unnecessary force.
(d)
Unless a physician's order specifically directs otherwise
as a result of the identified conditions and factors documented in the individual's
record as described in §415.355(b)(2) of this title (relating to General
Principles for the Use of Restraint), staff must:
(1)
not place an individual in a prone or supine position during
personal restraint; and
(2)
if the individual in personal restraint rolls into a prone
or supine position, restore the individual to a standing, sitting, or side
position as soon as possible.
(e)
Immediately after the individual is placed in restraint,
staff must:
(1)
explain to the individual that release from the restraint
will occur as soon as the individual no longer poses a risk of imminent physical
harm to self or to others; and
(2)
notify a restraint monitor, who will:
(A)
immediately go to the site of the restraint and ensure
that the restraint is properly used;
(B)
ensure that the individual is not at risk of serious injury
or death and is receiving proper care;
(C)
ensure that staff have explained to the individual that
release from the restraint will occur as soon as the individual no longer
poses a risk of imminent physical harm to self or others; and
(D)
determine whether consultation by a professional is necessary
(e.g., psychologist) and contact the appropriate professional, if deemed necessary.
(f)
If notified by a restraint monitor that consultation is
necessary, a professional (e.g., nurse or psychologist) will:
(1)
determine the nature of the restraint monitor's concerns;
(2)
go to the site of the restraint, if the professional determines
this is warranted by the circumstances; and
(3)
address the restraint monitor's concerns.
(g)
As soon as reasonably possible, the restraint monitor will
report the use of restraint to a nurse with the following information:
(1)
time the restraint was initiated;
(2)
description of the specific behaviors which necessitated
the use of restraint;
(3)
the type of restraint;
(4)
the duration of the restraint, if applicable; and
(5)
the physical and apparent emotional condition of the individual.
(h)
Upon being informed of the use of restraint, the nurse
will:
(1)
inform a physician, either in person or by phone, of the
information described in subsection (g) of this section;
(2)
document the physician's verbal order in the individual's
record to include the:
(A)
type of restraint;
(B)
behaviors that necessitated the use of restraint;
(C)
duration of the order, not to exceed 12 hours from the
time the restraint was initiated;
(D)
special instructions for the individual's care, if any,
while in restraint; and
(E)
time and date of the order; and
(3)
within 30 minutes or as soon as reasonably possible of
the individual's release from restraint or of being told of the individual's
release from restraint, conduct a face-to-face evaluation of the individual
for injuries and overall well-being.
(i)
A physician will sign and date the order no later than
the end of the next working day.
(j)
While an individual is being restrained, staff must ensure
that the individual is provided with:
(1)
privacy to the extent possible without compromising the
individual's safety or the safety of other individuals and staff; and
(2)
an opportunity for a period of not less than five minutes
during each one hour period:
(A)
for movement and exercise if the restraint restricts the
individual's range of motion in a limb or joint; and
(B)
to use toilet facilities and drink fluids.
(k)
As the circumstances warrant, when releasing an individual
from restraint to provide an opportunity for movement and exercise as described
in subsection (j) of this section, staff may release one limb at a time.
(l)
If an individual released from restraint as described in
subsection (j) of this section demonstrates behavior that would constitute
a behavioral emergency, staff will return the individual to restraint.
(m)
After the individual is released from restraint, staff
will:
(1)
provide transition activities to facilitate the individual's
re-assimilation into the social milieu;
(2)
observe the individual for at least 15 minutes to ensure
a smooth assimilation with documentation in the individual's record;
(3)
if the individual's record directs that the individual
be provided with an opportunity to discuss the use of restraint, inform the
appropriate staff person; and
(4)
complete the state MR facility's restraint checklist documenting
the care of the individual while in restraint.
(n)
The restraint monitor will ensure that:
(1)
all necessary documentation is completed;
(2)
the individual's QMRP is notified and the notification
is documented in the individual's record; and
(3)
the appropriate professional staff (e.g., psychologist)
is notified if the restraint occurred within 24 hours of another restraint
of the individual in a behavioral emergency.
(o)
The state MR facility will ensure that, within 24 hours
of the individual's release from restraint, the individual's LAR (or the person
listed in the individual's record as primary correspondent) is notified that
the individual was restrained in a behavioral emergency with information about
the type of restraint and the individual's condition. The notification will
be documented in the individual's record.
(p)
If staff must use restraint while the individual is away
from the state MR facility, staff will contact a nurse at the state MR facility
as soon as is reasonably possible.
(q)
An individual's IDT will meet to review alternative strategies,
which may include developing a behavior therapy program that targets for modification
or replacement those behaviors that resulted in behavioral emergencies, if
the individual is restrained in a behavioral emergency:
(1)
more often than twice within 30 calendar days;
(2)
in two or more separate episodes of any duration within
12 hours; or
(3)
for more than 12 continuous hours.
(r)
Staff will follow the provisions of §405.31 of this
title (relating to Emergency Use of Psychotropic Medications) if the use of
psychotropic medications in a behavioral emergency is deemed necessary by
a physician.
(s)
The following procedures must not be used in a behavioral
emergency, but may be used as part of an approved behavior therapy program,
as described in Chapter 415, Subchapter I of this title (relating to Behavior
Therapy in State Mental Retardation Facilities):
(1)
use of a time out room; and
(2)
restraint using a restraint board.
§415.357.Use of Restraint in a Behavior Therapy Program.
(a)
The use of restraint as an intervention in a behavior therapy
program must be approved and implemented as described in Chapter 415, Subchapter
I of this title (relating to Behavior Therapy--State Mental Retardation Facilities).
(b)
Immediately after an individual is placed in restraint
as directed in the individual's behavior therapy program, staff must explain
to the individual the conditions under which the individual will be released
from restraint, unless the behavior therapy program provides direction to
the contrary.
(c)
Unless a physician's instructions in the behavior therapy
plan specifically direct otherwise as a result of the identified conditions
and factors documented in the individual's record as described in §415.355(b)(2)
of this title (relating to General Principles for the Use of Restraint), staff
must:
(1)
not place an individual in a prone or supine position during
personal restraint; and
(2)
if the individual in personal restraint rolls into a prone
or supine position, restore the individual to a standing, sitting, or side
position as soon as possible.
(d)
If notified by a restraint monitor that consultation is
necessary, a professional (e.g., nurse or psychologist) will:
(1)
determine the nature of the restraint monitor's concerns;
and
(2)
go to the site of the restraint, if the professional determines
this is warranted by the circumstances.
(e)
While an individual is being restrained, staff must ensure
that the individual is provided with an opportunity for a period of not less
than five minutes during each one hour period:
(1)
for movement and exercise if the restraint restricts the
individual's range of motion in a limb or joint; and
(2)
to use toilet facilities and drink fluids.
(f)
If an individual released from restraint as described in
subsection (e)(1) of this section demonstrates behavior that would constitute
a behavioral emergency, staff will initiate restraint as described in §415.356
of this title (relating to Use of Restraint in a Behavioral Emergency.
(g)
Unless the individual's behavior therapy program directs
otherwise, a nurse must check the individual for injuries and overall well-being
after the individual is released from restraint.
(h)
The use of psychotropic medications as part of a behavior
therapy program to address an individual's inappropriate behavior must be
consistent with the provisions of Chapter 405, Subchapter B of this title
(relating to Prescribing of Psychotropic Medication--Mental Retardation Facilities).
§415.358.Use of Restraint During Medical or Dental Procedures and To Promote Healing.
(a)
Restraint may be used:
(1)
during medical and dental procedures if necessary to protect
the individual or others while the procedure is accomplished (e.g., body restraint
during surgery; arm restraint during intravenous administration; restraint
devices to carry out dental procedures, etc.);
(2)
after medical and dental procedures to promote healing;
and
(3)
following treatment of an injury to promote healing or
while recovering from an illness.
(b)
Restraint may be used without a physician's written order
only if its use is explicitly permitted in the state MR facility's written
medical, dental, or nursing policies and procedures.
(1)
A dentist may order restraint for dental procedures only.
(2)
The use of restraint must be recorded in the individual's
record. For restraint during a dental procedure, the information must be included
in the dental section of the record.
(c)
If a physician or dentist orders a use of restraint that
is not explicitly permitted in the state MR facility's written medical, dental,
or nursing policies and procedures, the physician or dentist must include
in the written order:
(1)
type of restraint;
(2)
clinical justification for the use of restraint;
(3)
duration of the order; and
(4)
special instructions for the individual's care, if any,
while in restraint.
(d)
While an individual is being restrained as described in
this section, staff must evaluate the individual periodically to ensure that
the individual is not in physical distress and has not sustained an injury
as a result of the restraint.
(e)
If restraint is used during a medical or dental procedure
other than a medical emergency, the IDT will consider what steps may be taken
to reduce the need for restraint during medical or dental care in the future.
Possible options include desensitization training, behavior shaping, intensive
positive reinforcement, and environmental changes.
§415.359.Use of Restraint with a Mechanical Device to Prevent Involuntary Self-injury.
(a)
Some techniques used by a state MR facility to protect
an individual from an injury that might result from involuntary movements
exhibited by the individual (e.g., falling and hitting head on floor as a
result of a seizure) may constitute restraint with a mechanical device. An
individual's IDT may authorize staff to use restraint with a mechanical device
if:
(1)
the IDT determines that less restrictive interventions
are inappropriate;
(2)
a physician concurs with the recommendation and signs an
order for use of the mechanical device; and
(3)
facility staff obtains legally adequate consent or authorization
for a period not to exceed one year from, as appropriate:
(A)
the individual with the ability to provide legally adequate
consent;
(B)
the LAR of an individual who does not have the ability
to provide legally adequate consent; or
(C)
the head of the state MR facility, if the individual does
not have the ability to provide legally adequate consent and does not have
an LAR.
(b)
The IDT must document the following in the individual's
record:
(1)
a description of the involuntary movements which necessitate
the use of restraint with a mechanical device;
(2)
the less restrictive interventions and alternative strategies
that have been attempted or considered;
(3)
the specific mechanical device recommended; and
(4)
instructions for safe use of the mechanical device.
(c)
Mechanical devices used as described in this section may
include:
(1)
helmet for an individual with a seizure disorder;
(2)
bedrails to prevent an individual from falling out of bed;
and
(3)
seat belt to prevent an individual from falling out of
a wheelchairs.
(d)
An individual's IDT must review the use of a mechanical
device for restraint as described in this section at least annually and whenever
changes in the extent and nature of the individual's involuntary movements
occur.
(1)
The IDT will consider whether less restrictive interventions
might be appropriate to protect the individual from involuntary self-injury.
(2)
The IDT may recommend continued use of the mechanical device
only if it determines that less restrictive interventions continue to be inappropriate
to protect the individual from involuntary self-injury.
(3)
The IDT must document in the individual program plan any
measures taken to alleviate the need for the mechanical device.
(4)
If the IDT recommends a change in the type of mechanical
device, the recommendation must be submitted to a physician for review.
(A)
If the physician concurs with the recommendation, the physician
will sign an order for use of the mechanical device.
(B)
Staff must obtain legally adequate consent as described
in subsection (a)(3) of this section whenever the IDT recommends a change
in the type of mechanical device for restraint.
§415.360.Use of Restraint with a Mechanical Device to Provide Postural Support.
(a)
Some techniques used by a state MR facility if an individual
requires assistance to maintain postural support may constitute restraint
with a mechanical device. An individual's IDT may authorize staff to use restraint
with a mechanical device if:
(1)
the individual's IDT concurs with the recommendation of
a licensed occupational therapist or physical therapist that less restrictive
interventions are inappropriate and recommends the use of restraint with a
mechanical device;
(2)
a physician concurs with the IDT's recommendation and signs
an order for use of the mechanical device; and
(3)
staff obtains legally adequate consent or authorization
for a period not to exceed one year from, as appropriate:
(A)
the individual with the ability to provide legally adequate
consent;
(B)
the LAR of an individual who does not have the ability
to provide legally adequate consent; or
(C)
the head of the state MR facility, if the individual does
not have the ability to provide legally adequate consent and does not have
an LAR.
(b)
The IDT must document the following in the individual's
record:
(1)
a description of the condition which necessitates the use
of restraint with a mechanical device;
(2)
the expected therapeutic outcome;
(3)
the less restrictive interventions and alternative strategies
that have been attempted or considered;
(4)
the specific mechanical device recommended; and
(5)
instructions for safe use of the mechanical device.
(c)
Mechanical devices used as described in this section may
include, but are not limited to, vests and seat belts. They are considered
an adjunct to proper care of an individual and may not be used as a substitute
for appropriate nursing care.
(d)
An individual's IDT must review the use of a mechanical
device for restraint as described in this section at least annually and whenever
changes in the extent and nature of the individual's physical condition occur.
(1)
The IDT will consider whether less restrictive interventions
might be appropriate to assist the individual in maintaining postural support.
(2)
The IDT may recommend continued use of the mechanical device
only if it determines that less restrictive interventions continue to be inappropriate
to assist the individual in maintaining postural support.
(3)
The IDT must document in the IPP any measures taken to
alleviate the need for the mechanical device.
(4)
If the IDT recommends a change in the type of mechanical
device, the recommendation must be submitted to a physician for review.
(A)
If the physician concurs with the recommendation, the physician
will sign an order for use of the mechanical device.
(B)
Staff must obtain legally adequate consent as described
in subsection (a)(3) of this section whenever the IDT recommends a change
in the type of mechanical device for restraint.
§415.361.Mechanical Devices for Use in Restraint.
(a)
A state MR facility must use only those mechanical devices
designed specifically for the safe and relatively comfortable restraint of
humans, to include:
(1)
commercially available devices; and
(2)
devices developed independently by or on behalf of the
state MR facility.
(b)
A state MR facility may use a commercially available mechanical
device that has been altered to accommodate an individual's specific physical
needs (e.g., a physical impairment or obesity) or a mechanical device developed
independently by or on behalf of the state MR facility only if its use has
been approved by the director of State MR Facilities in the department's Central
Office.
(1)
Before the state MR facility requests approval from the
director of State MR Facilities to use such a mechanical device, a written
description of the mechanical device and its intended use (with pictures and
sketches, as appropriate) must be reviewed and approved by a committee at
the state MR facility that includes the following staff:
(A)
medical director or designee;
(B)
nursing director or designee;
(C)
director of psychology;
(D)
director of habilitation services;
(E)
safety officer; and
(F)
rights officer.
(2)
If the committee approves the mechanical device, a written
description of the mechanical device and its intended use (with pictures and
sketches, as appropriate) will be submitted to the head of the state MR facility,
who must decide within 10 working days whether to request approval from the
director of State MR Facilities to use the mechanical device.
(3)
Within 10 working days of receiving a request for approval
to use a mechanical device, the director of State MR Facilities must review
the request and notify the head of the state MR facility whether or not the
request has been approved.
(c)
Staff will inspect a mechanical device before and after
each use to ensure the device is in good repair and without tears or protrusions
that may cause injury. A damaged mechanical device must be repaired before
it can be used in the restraint of an individual. If a damaged mechanical
device cannot be repaired to make it safe for use in the restraint of an individual,
it must be discarded.
(d)
Staff must ensure that a mechanical device is not secured
so tightly that the individual's circulation or breathing is impaired or so
loosely that the individual's skin is chafed. Staff must exercise caution
when using mechanical devices such as a camisole or straitjacket that may
impair the individual's balance or interfere with the individual's ability
to break a fall.
(e)
Staff may use two or more mechanical devices simultaneously
in the restraint of an individual in a behavioral emergency if a physician
authorizes their use.
(f)
The following mechanical devices may be used in the restraint
of an individual.
(1)
Anklets--Padded bands of cloth or leather that are secured
around the individual's ankles or legs using hook-and-loop (e.g., Velcro brand)
tape or buckle fasteners and attached to a stationery object (e.g., bed or
chair frame).
(2)
Arm splints or elbow immobilizers--Strips of any material
with padding that extend from below to above the elbow and are secured around
the arm with ties or hook-and-loop (e.g., Velcro brand) tape. If appropriate,
they should be secured such that the individual has full use of the hands.
(3)
Belts--A cloth or leather band that is fastened around
the waist and secured to a stationery object (e.g., chair frame) or used for
securing the arms to the sides of the body.
(4)
Camisole--A sleeveless cloth jacket which covers the arms
and upper trunk and is secured behind the individual's back.
(5)
Chair restraint--A padded, stabilized chair which supports
all body parts and is used with anklets or wristlets to prevent the individual
from standing up without assistance.
(6)
Helmets--A plastic, foam rubber, or leather head covering,
such as sports helmets, that may include an attached face guard.
(7)
Mittens--A cloth, plastic, foam rubber, or leather hand
covering, such as boxing and other types of sport gloves, that are secured
around the wrist or lower arm with elastic, hook-and-loop (e.g., Velcro brand)
tape, ties, paper tape, pull strings, buttons, or snaps.
(8)
Restraint board--A padded, rigid board to which an individual
is secured face-up, unless that position is clinically contraindicated for
that individual This device will not be used in the restraint of an individual
in a behavioral emergency.
(9)
Restraining net--Mesh fabric that is placed over an individual's
upper and lower trunk with the head, arms, and lower legs exposed; the net
is secured over a mattress to a bed frame and is never placed over the individual's
head.
(10)
Straitjacket--A heavy canvas jacket that is open in the
back and has sleeves that are stitched closed. The individual's arms are crossed
in front and the sleeves secured with ties at the back.
(11)
Ties--A length of cloth or leather used to secure approved
mechanical restraints (i.e., mittens, wristlets, arm splints, belts, anklets,
vests, etc.) to a stationary object (i.e., bed or wheelchair frame) or to
other mechanical restraints.
(12)
Transport jacket--A heavy canvas sleeveless jacket that
encases the arms and upper trunk, fastens with hook-and-loop (e.g., Velcro
brand) tape or roller buckles, and is held in place by a strap between the
legs.
(13)
Vest--A sleeveless cloth jacket which covers the upper
trunk of the individual. The vest may be secured to a stationary object (e.g.,
bed or chair frame).
(14)
Wristlets--Padded cloth or leather bands that are secured
around the individual's wrists or arms using hook-and-loop (e.g., Velcro brand)
tape or buckle fasteners and attached to a stationery object (e.g., bed or
chair frame).
(g)
The following mechanical devices must not be used in the
restraint of an individual.
(1)
metal wrist or ankle cuffs;
(2)
rubber bands, ropes, and cords, unless part of an approved
device;
(3)
long ties and leashes, including halter leashes;
(4)
restraining sheets attached to any stationary object other
than a bed;
(5)
padlocks; and
(6)
barred enclosures with tops, including crib-style bed with
mesh tops.
(h)
A mechanical device that is not described in subsection
(f) of this section but is not expressly forbidden in (g) of this section
may be used in the restraint of an individual if its use is approved as described
in subsection (b) of this section.
§415.362.Additional Reporting and Documentation Requirements When Restraint is Used in a Behavioral Emergency or as Part of a Behavior Therapy Program.
(a)
Reports to head of the state MR facility.
(1)
Staff will notify the head of the state MR facility or
designee immediately, but in no case more than one hour after learning of
a serious injury to or death of an individual that occurs while the individual
is in restraint.
(2)
Within one working day of receiving the notice described
in paragraph (1) of this subsection, the head of the state MR facility or
designee must:
(A)
notify the State MR Facilities Division in Central Office
of the serious injury or death; and
(B)
name one or more staff to investigate the serious injury
or death.
(3)
The staff named to investigate the serious injury or death
must submit a written report on the results of the investigation to the head
of the state MR facility or designee no later than five working days after
the notice of the serious injury or death required in paragraph (1)(A)-(B)
of this subsection.
(A)
The written report will be reviewed by the head of the
facility, who will take prompt appropriate corrective action, if determined
to be necessary.
(B)
A copy of the report will be submitted to the State MR
Facilities Division in Central Office.
(4)
If the serious injury or death is suspected to be the result
of abuse or neglect, staff must make a verbal report immediately, but in no
case more than one hour after suspicion or after learning of the incident,
to the Texas Department of Protective and Regulatory Services as described
in §417.505 of this title (relating to Reporting Responsibilities of
all TDMHMR Employees, Agents, and Contractors: Reports to the Texas Department
of Protective and Regulatory Services (TDPRS)).
(b)
Reports required by MOU. If the serious injury or death
is a reportable incident as described in the memorandum of understanding titled
"Reportable Incidents in State Schools, State Centers, State Operated Community-based
MHMR Services, and Community Mental Health and Mental Retardation Centers
with Intermediate Care Facilities for the Mentally Retarded (ICF/MR)" dated
March 25, 1996, the head of the facility will report the incident as described
in the MOU.
(c)
Reports to Central Office. Each state MR facility must
prepare and submit to the State Mental Retardation Facilities division in
Central Office a quarterly report on the state MR facility's use of restraint
in behavioral emergencies, as part of behavior therapy plans, and to prevent
involuntary self-injury. The report must include the following:
(1)
number of incidents and types of restraint and the number
of individuals restrained during each month of the fiscal year quarter, with
designation of how many individuals were under 18 years of age;
(2)
the number of serious and non-serious injuries and the
injury rate for each month of the fiscal quarter, with designation of how
many individuals were under 18 years of age; and
(3)
number of deaths that occur within 24 hours of the use
of restraint for each month of the fiscal quarter, with designation of how
many individuals were under 18 years of age.
(d)
Analysis of data. The head of the state MR facility must
ensure ongoing analysis of data collected as described in subsections (a)
and (c) of this section to identify issues or emerging trends and to develop
appropriate responses.
§415.363.Staff Training in the Use of Restraint.
(a)
The state MR facility must inform each employee whose work
responsibilities involve direct contact with individuals of the employee's
roles and responsibilities under this subchapter and under written facility
policy and procedures.
(b)
Before an employee assumes work responsibilities that might
require the employee to participate in restraint, the state MR facility will
ensure that the employee receives training and demonstrates the competencies:
(1)
in the department's approved restraint training program
as outlined in the course descriptions in the TDMHMR Operating Instructions
of Internal Facilities Management for Human Resources: Minimum Training Requirements
(407. 12: §7);
(2)
in sections of the PMAB training program as appropriate
to the employee's position and responsibilities, and as required under the
TDMHMR Operating Instructions of Internal Facilities Management for Human
Resources: Minimum Training Requirements (407. 12. §7); and
(3)
related to the state MR facility's written policies and
procedures as appropriate to the employee's position and responsibilities.
(c)
An employee who is a restraint monitor must:
(1)
have successfully completed all sections of the department's
PMAB curriculum and successfully complete subsequent refresher training annually;
and
(2)
have successfully completed the state MR facility's training
in the following:
(A)
cardiopulmonary resuscitation (CPR) and successfully complete
subsequent refresher training every two years;
(B)
rights of individuals with mental retardation and successfully
complete subsequent refresher training annually;
(C)
abuse and neglect and successfully complete subsequent
refresher training annually;
(D)
use of the mechanical devices utilized by the state MR
facility and successfully complete subsequent refresher training annually.
(d)
Before a nurse or physician assumes work responsibilities
that require participation in requesting, ordering, evaluating, or documenting
restraint, the state MR facility will ensure that the nurse or physician receives
training and demonstrates competence in:
(1)
recognizing facility procedures for requesting, ordering,
evaluating, or documenting restraint;
(2)
recognizing facility-approved personal restraint procedures
and mechanical devices;
(3)
identifying contraindications specific to facility-approved
personal restraint procedures and mechanical devices; and
(4)
recalling reporting procedures for restraint-related injuries
and deaths.
(e)
The state MR facility will ensure that each employee whose
work responsibilities require the employee to participate in restraint must
demonstrate competence annually in the areas described in subsection (b)(1)-(3)
of this section.
(f)
Documentation of training and demonstrated competence for
each employee will be kept by the state MR facility's human resource development
office. Documentation shall include the name of the training, the date of
training, the name of the instructor or person who assessed competence, a
list of successfully demonstrated knowledge and skills and the date knowledge
and skills were assessed.
§415.364.Enforcement.
(a)
The head of the state MR facility is responsible for the
enforcement of this subchapter.
(b)
The state MR facility will take appropriate disciplinary
action if an employee violates the provisions of this subchapter.
§415.365.References.
Reference is made to the following statutes and rules of the department:
(1)
42 CFR §§483.410-483.480 et. seq., (Conditions
of Participation for Intermediate Care Facilities for Persons with Mental
Retardation);
(2)
42 CFR Title 42 §483.430;
(3)
Chapter 405, Subchapter B of this title (relating to Prescribing
of Psychotropic Medication--Mental Retardation Facilities);
(4)
§405.31 of this title (relating to Emergency Use of
Psychotropic Medications);
(5)
§405.625 of this title (relating to Rights of Clients
Receiving Residential Mental Retardation Services);
(6)
Chapter 415, Subchapter I of this title (relating to Behavior
Therapy in State Mental Retardation Facilities);
(7)
§417.505 of this title (relating to Reporting Responsibilities
of all TDMHMR Employees, Agents, and Contractors: Reports to the Texas Department
of Protective and Regulatory Services (TDPRS)); and
(8)
"Reportable Incidents in State Schools, State Centers,
State Operated Community-based MHMR Services, and Community Mental Health
and Mental Retardation Centers with Intermediate Care Facilities for the Mentally
Retarded (ICF/MR)" dated March 25, 1996.
§415.366.Distribution.
(a)
This subchapter shall be distributed to:
(1)
members of the Texas Mental Health and Mental Retardation
Board;
(2)
executive, management, and program staff in Central Office;
(3)
heads of state mental retardation facilities; and
(4)
individual advocates and advocacy organizations.
(b)
The heads of state mental retardation facilities shall
ensure that appropriate staff receive copies of this subchapter.
(c)
A copy of this subchapter shall be made available upon
request to:
(1)
an individual;
(2)
the LAR of an individual;
(3)
the counsel of record of an individual or LAR;
(4)
an actively involved family member or friend of an individual;
(5)
a state MR facility employee; or
(6)
any interested party.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on January 12, 2004.
TRD-200400177
Rodolfo Arredondo
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: February 22, 2004
For further information, please call: (512) 206-5232
Subchapter I. BEHAVIOR THERAPY IN STATE MENTAL RETARDATION FACILITIES
25 TAC §§415.401 - 415.412
The Texas Department of Mental Health and Mental Retardation
(department) proposes new §§415.401 - 415.412 of new Chapter 415,
Subchapter I, governing behavior therapy in state mental retardation facilities.
The new subchapter describes policies and procedures that a state mental
retardation facility (state MR facility) must implement to ensure that the
health, safety, welfare, rights, and privileges of an individual are protected
when a behavior therapy program is recommended by the individual's interdisciplinary
team (IDT) to address inappropriate behavior exhibited by the individual.
Policies and procedures are outlined in the subchapter that must be followed
by a state MR facility when initiating, monitoring, and reporting behavior
therapy programs that utilize highly restrictive procedures or otherwise restrict
the rights or privileges of individuals. In addition, the subchapter describes
procedures that support and enhance the practice of applied behavior analysis
and behavior therapy.
The proposed new subchapter will replace Chapter 405, Subchapter H, governing
behavior management--facilities serving persons with mental retardation, which
is proposed for repeal contemporaneously in this issue of the
Texas Register
. The department developed the new subchapter and related
new Subchapter 412, Subchapter H, governing the use of restraint in state
mental retardation facilities, which also is published contemporaneously for
public review and comment in this issue of the
Texas
Register
, in response to recent and considerable interest at the federal
and state levels by legislators and advocate/stakeholder groups, and by Texas
and national media in the use of restraint in all institutional settings.
In §415.404, a state MR facility is required to develop and implement
written policies and procedures that, among other things, emphasize the department's
commitment to providing treatment and habilitation to an individual that is
the least restrictive and most effective, supportive, and positive alternative
available and to reducing the necessity for the use of behavior therapy programs
involving highly restrictive procedures and other restrictions of the rights
and privileges of an individual. The state MR facility also is required to
describe the process it will follow for obtaining legally adequate consent
or other authorization before implementing a behavior therapy program that
utilizes highly restrictive procedures or otherwise restricts the rights or
privileges of an individual, and detail the training and demonstration of
competence requirements for state MR facility staff.
In §415.405, the department describes general principles for the implementation
of behavior therapy programs that state, among other things, that an approved
behavior therapy program must use only the least intrusive or restrictive
intervention that effectively modifies or replaces a targeted behavior. Another
principle states that staff must ensure that an individual who exhibits inappropriate
behavior is treated with compassion and respect, in addition to being provided
with effective and appropriate services.
The development, implementation, and monitoring of effectiveness of behavior
therapy programs are addressed in §415.406. Subsection (a) specifies
that a written behavior therapy program must be developed for an individual
under the following circumstances: the individual's IDT has recommended the
use of a highly restrictive procedure or other restriction of the individual's
rights or privileges to modify or replace a targeted behavior; or the individual
is receiving medications intended primarily for the treatment of a psychiatric
disorder. Subsection (b) requires that the written behavior therapy program
must be based on the results of a functional analysis, and that a written
protocol must be developed if the functional analysis will involve the following:
systematic changes in environmental and biological factors that impact the
individual; evaluation of a highly restrictive procedure; or a significant
risk of injury to the individual or others (e.g., the targeted behavior involves
severe self-injury or aggression towards others). Criteria for the development
of the behavior therapy program are described in subsection (c). Review and
approval procedures are addressed in subsection (d), including approval by
the IDT and the state MR facility's Human Rights Committee and behavior therapy
committee; in addition, legally adequate consent must be obtained from the
individual or legally authorized representative (if any) before implementation
of the behavior therapy program. If the individual does not have the ability
to provide legally adequate consent and does not have a legally authorized
representative, authorization must be obtained from the head of the state
MR facility. If the behavior therapy program will involve the use of a highly
restrictive procedure, including restraint, subsection (e) provides additional
criteria that the state MR facility must address in the development of the
program. Subsection (f) addresses the review by the individual's qualified
mental retardation professional (QMRP) to ensure that the behavioral objectives
specified in the behavior therapy program are being met. The section also
provides that if an individual is involved in a program outside the state
MR facility (e.g., attending public school or working), staff of the outside
program will be invited to participate in development of the functional analysis
and the behavior therapy program.
Requirements for obtaining and documenting legally adequate consent to
a functional analysis or a behavior therapy program are described in §419.407.
Section 419.409 requires that a state MR facility must submit a quarterly
report to Central Office detailing the number of individuals 18 years of age
or older for whom approved behavior therapy programs were in place during
each month of the fiscal year quarter; the number of individuals under 18
years of age for whom approved behavior therapy programs were in place during
each month of the fiscal year quarter; and a description of highly restrictive
procedures utilized in those programs.
Cindy Brown, chief financial officer, has determined that for each year
of the first five year period that the proposed new subchapter is in effect,
enforcing or administering the rule does have foreseeable implications relating
to costs or revenues of state government. State MR facilities may incur additional
training costs related to materials, time, and staff in order to comply with
the proposed new subchapter. It is not anticipated that the proposed new subchapter
will have an adverse economic effect on small businesses or micro-businesses.
It is not anticipated that there will be any additional economic cost to persons
required to comply with the proposed new subchapter. It is not anticipated
that the proposed new subchapter will affect a local economy.
Robert Kifowit, director, State Mental Retardation Facilities, has determined
that, for each year of the first five-year period the proposed new subchapter
is in effect, the public benefit expected is that the health, safety, welfare,
rights, and privileges of an individual residing in state MR facilities are
protected when a behavior therapy program is recommended to address the individual's
inappropriate behavior.
Comments concerning the proposed new subchapter must be submitted in writing
to Linda Logan, director, Policy Development, by mail to P.O. Box 12668, Austin,
Texas 78711, by fax to 512/206-4744, or by e-mail to policy.co@mhmr.state.tx.us
within 30 days of publication of this notice.
A hearing to accept oral and written testimony from members of the public
concerning the proposal has been scheduled for 1:30 p.m., Friday, February
13, 2004, in Building 2, Room 240 of the department's Central Office at 909
West 45th Street, in Austin, Texas. Persons requiring an interpreter for the
deaf or hearing impaired should contact the department's Central Office operator
at least 72 hours prior to the hearing at TDD (512) 206-5330. Persons requiring
other accommodations for a disability should notify State Mental Retardation
Facilities in Central Office at least 72 hours prior to the hearing at (512)
206-4538 or at the TDY phone number of Texas Relay, 1/800-735-2988.
The new subchapter is proposed under the Texas Health and Safety
Code (THSC), §532.015(a), which provides the Texas Mental Health and
Mental Retardation Board (board) with broad rulemaking authority; THSC, §591.004,
which requires the board to ensure the implementation of the Persons with
Mental Retardation Act (THSC, Title 7, Subtitle D); and THSC, §592.002,
which requires the board to ensure the implementation of certain rights enumerated
in THSC, Chapter 592.
The proposed new subchapter affects THSC, Title 7, Subtitle D, and Chapter
592.
§415.401.Purpose.
The purpose of this subchapter is to:
(1)
ensure that the health, safety, welfare, rights, and privileges
of an individual residing in a state mental retardation facility (state MR
facility) are protected when a behavior therapy program is recommended to
address the individual's inappropriate behavior;
(2)
outline policies and procedures for initiating, monitoring,
and reporting behavior therapy programs that utilize highly restrictive procedures
or otherwise restrict the rights or privileges of individuals; and
(3)
describe procedures that support and enhance the practice
of applied behavior analysis and behavior therapy.
§415.402.Application.
This subchapter applies to state MR facilities.
§415.403.Definitions.
The following words and terms when used in this subchapter shall have
the following meanings unless the context clearly indicates otherwise.
(1)
Behavior therapy--The application of applied behavior analysis
principles, cognitive therapies, and skills acquisition to clinical problems
with the intent of increasing adaptive behaviors and modifying or replacing
targeted behaviors with behaviors that are adaptive and socially acceptable.
(2)
Behavior therapy committee--Persons designated by a state
MR facility who are knowledgeable about applied behavior analysis and who:
(A)
review, approve, and monitor behavior therapy programs;
and
(B)
review, monitor, and make suggestions concerning the state
MR facility's policies and procedures concerning behavior therapy.
(3)
Behavior services director--A person appointed by the head
of the facility to chair the behavior therapy committee and consult with program
directors. The behavior services director shall:
(A)
be knowledgeable in the specifics of behavior therapy principles
and theory;
(B)
be qualified to evaluate published behavior therapy research
studies; and
(C)
have applied experience with behavior therapy techniques.
(4)
CFR (Code of Federal Regulations)--The compilation of federal
agency regulations.
(5)
Functional analysis--An assessment of environmental and
biological factors that may influence inappropriate behavior exhibited by
an individual.
(6)
Head of the state MR facility--The superintendent of a
state school or the executive director of a state center.
(7)
Highly restrictive procedures--
(A)
Restraint--The use of manual pressure, except for physical
guidance or prompting of brief duration, or a mechanical device to restrict:
(i)
the free movement or normal functioning of the whole or
a portion of an individual's body; or
(ii)
normal access by the individual to a portion of the individual's
body.
(B)
Use of timeout room--Placement of an individual alone and
under constant, direct staff supervision in an enclosed area in which positive
reinforcement is not available and from which egress is denied by a closed
door in accordance with Code of Federal Regulations (CFR), Title 42, §483.450(c),
concerning timeout rooms. The term does not include circumstances in which
staff remain in close proximity to an individual who has been directed to
an area that is removed from regular activities.
(C)
Application of aversive stimuli--Application of any stimulus
that may be unpleasant or noxious, startling, or painful such that its intended
effect is the suppression of the targeted behavior upon which it is immediately
contingent. Such stimuli include olfactory, auditory, gustatory, tactile,
and other stimuli that may result in physical discomfort or pain.
(D)
Effortful task--An activity requiring physical effort by
an individual that is directed and may be manually guided by staff. Examples
of effortful tasks include, but are not limited to:
(i)
Required exercise--A procedure whereby an individual performs
and may be guided by staff to perform a series of physical movements that
are incompatible with the undesirable response they systematically follow.
An example would be the guided movement of a self-injurious individual's arms
through a series of positions away from the body.
(ii)
Negative practice--A procedure whereby an individual is
required to repeatedly engage in an effortful task that is topographically
similar to the undesirable response the procedure systematically follows.
An example is a program in which an individual who strikes others is required
to repeatedly strike a punching bag following each occurrence of hitting others.
(iii)
Restitutional overcorrection--A procedure whereby an
individual is required to correct the consequences of a disruptive response
by performing a task that restores the environment to a state even more improved
than existed before the disruptive behavior. An example would be the requirement
that a disruptive individual polish all the tables in the residence as a consequence
of knocking over one of them.
(iv)
Positive practice overcorrection--A procedure whereby
an individual is required to repeatedly engage in an appropriate behavior
related to the function of the undesirable response the procedure systematically
follows. An example is a program in which an individual is required to repeatedly
practice an appropriate social behavior contingent upon exhibition of a targeted
behavior.
(8)
Human Rights Committee--Persons designated by a state MR
facility in accordance with 42 CFR §483.440(f)(3), concerning specially
constituted committee, who review, approve and monitor behavior therapy programs
and review monitor, and make suggestions about the state MR facility's policies,
procedures, and practices concerning behavior therapy programs.
(9)
Interdisciplinary team (IDT)--Mental retardation professionals
and paraprofessionals and other concerned persons, as appropriate, who assess
an individual's treatment, training, and habilitation needs and make recommendations
for services.
(A)
Team membership always includes:
(i)
the individual;
(ii)
the individual's LAR, if any; and
(iii)
persons specified by a state MR facility who are professionally
qualified and/or certified or licensed with special training and experience
in the diagnosis, management, needs, and treatment of individuals with mental
retardation.
(B)
Other participants in IDT meetings may include:
(i)
other concerned persons whose inclusion is requested by
the individual or the LAR; and
(ii)
at the discretion of the state MR facility, persons who
are directly involved in the delivery of mental retardation services to the
individual.
(10)
Individual--A person with mental retardation who resides
in a state MR facility.
(11)
LAR (legally authorized representative)--A person authorized
by law to act on behalf of an individual with regard to a matter described
in this subchapter, and may include a parent, guardian, or managing conservator
of a minor individual, or a guardian of an adult individual.
(12)
Legally adequate consent--A term consistent with provisions
of the Texas Health and Safety Code (THSC), Title 7, §591.006, which
states, in essence, that consent obtained from an individual with mental retardation
is legally adequate when each of the following conditions has been met:
(A)
legal status: The individual giving the consent:
(i)
is 18 years of age or older, or younger than 18 years of
age and is or has been married or had the disabilities of minority removed
for general purposes by court order as described in the Texas Family Code,
Chapter 31; and
(ii)
has not been determined by a court to lack capacity to
make decisions with regard to the matter for which consent is being sought.
(B)
comprehension of information: The individual giving the
consent has been informed of and comprehends the nature, purpose, consequences,
risks, and benefits of and alternatives to the procedure, and the fact that
withholding or withdrawal of consent shall not prejudice the future provision
of care and services to the individual with mental retardation; and
(C)
voluntariness: The consent has been given voluntarily and
free from coercion and undue influence.
(13)
State MR (mental retardation) facility--A state school
or state center operated by the department that provides residential services
to individuals with mental retardation.
(14)
Targeted behavior--An inappropriate behavior exhibited
by an individual that the IDT has identified for modification or reduction.
§415.404.General Provisions.
(a)
Each state MR facility must have and implement written
policies and procedures that:
(1)
do not conflict with this subchapter or 42 CFR §483.450(b),
concerning the management of inappropriate behavior;
(2)
emphasize the department's commitment to:
(A)
providing treatment and habilitation to an individual that
is:
(i)
the least restrictive and most effective alternative available;
and
(ii)
supportive and positive; and
(B)
reducing the necessity for the use of behavior therapy
programs involving highly restrictive procedures and other restrictions of
the rights and privileges of an individual;
(3)
describe the process to be followed for obtaining legally
adequate consent or other authorization before implementing a behavior therapy
program that utilizes highly restrictive procedures or otherwise restricts
the rights or privileges of an individual; and
(4)
detail the training and demonstration of competence requirements
for state MR facility staff.
(b)
The standards in this subchapter take precedence over other
applicable standards, including the Conditions of Participation for Intermediate
Care Facilities for Persons with Mental Retardation (42 CFR §§483.410-483.480
et. seq.), whenever the other applicable standards are less restrictive.
§415.405.General Principles for Behavior Therapy Programs.
A state MR facility will ensure that the following general principles
are incorporated in its written polices and procedures developed as described
in §415.404 of this title (relating to General Provisions) and followed
during the development, implementation, and monitoring of behavior therapy
programs for individuals.
(1)
The health, safety, welfare, rights, and privileges of
an individual must protected.
(2)
Only the least intrusive or restrictive intervention that
effectively modifies or replaces a targeted behavior will be employed as part
of a behavior therapy program.
(3)
Staff do not exercise control over an individual; rather,
staff offer an individual the needed and appropriate support that enables
the individual to modify or reduce inappropriate behavior.
(4)
Staff must attempt to understand an individual's motivation
for engaging in inappropriate behavior in order to effectively develop a strategy
for making changes to the individual's environment that will result in a modification
of or reduction in the inappropriate behavior.
(5)
Staff must ensure that an individual who exhibits inappropriate
behavior is treated with compassion and respect, in addition to being provided
with effective and appropriate services.
§415.406.Development, Implementation, and Monitoring of Effectiveness of Behavior Therapy Programs.
(a)
When a behavior therapy program must be developed. An individual's
treating psychologist, with input from the individual's interdisciplinary
team (IDT), must develop a written behavior therapy program for the individual
if:
(1)
the IDT recommends the use of a highly restrictive procedure
or other restriction of the individual's rights or privileges to modify or
replace a targeted behavior; or
(2)
the individual is receiving medications intended primarily
for the treatment of a psychiatric disorder.
(b)
Behavior therapy program developed based on functional
analysis.
(1)
The individual's treating psychologist will develop the
written behavior therapy program based on the results of a functional analysis.
(2)
Before a state MR facility implements a functional analysis,
a written protocol must be developed if the functional analysis involves any
of the following:
(A)
systematic changes in environmental and biological factors
that impact the individual;
(B)
evaluation of a highly restrictive procedure; or
(C)
a significant risk of injury to the individual or others
(e.g., the targeted behavior involves severe self-injury or aggression towards
others).
(3)
A written protocol, as described in paragraph (2) of this
subsection, must:
(A)
be developed by the treating psychologist;
(B)
describe the specific procedures or environmental variables
to be manipulated;
(C)
describe the length of time required for each phase; and
(D)
be reviewed and approved by:
(i)
the individual's IDT;
(ii)
the state MR facility's behavior services director; and
(iii)
the chair of the state MR facility's Human Rights Committee
(HRC).
(4)
Before conducting a functional analysis that involves any
of the characteristics described in paragraph (2)(A)-(C) of this subsection,
a state MR facility must obtain either legally adequate consent or authorization
by the head of the state MR facility as described in §415.406 of this
title (relating to Requirement to Obtain Legally Adequate Consent or Authorization
by the Head of the Facility).
(5)
If an individual is involved in a program outside the state
MR facility (e.g., attending public school or working), the functional analysis
must involve the outside program. Staff of the outside program will be invited
to participate in development of the protocol for the functional analysis
and, later, in the development of the behavior therapy program.
(c)
Development of behavior therapy program.
(1)
The determination by an individual's treating psychologist
and the IDT of which highly restrictive procedure to use in a behavior therapy
program will be based on:
(A)
evidence documented in professional and scientific literature
of the probability that the specific technique or procedure:
(i)
will be effective in modifying or replacing a targeted
behavior; and
(ii)
is appropriate for an individual's cognitive functioning
level, size, weight, known physical, medical, and emotional condition, and
age.
(B)
the results of the functional analysis conducted as described
in subsection (b) of this section.
(2)
As required by 40 TAC §90.42(e)(4)(A) (relating to
Standards for Facilities Serving Persons with Mental Retardation or Related
Conditions), if restraint is the highly restrictive procedure being considered
by the individual's IDT as an intervention in a behavior therapy program,
a physician must participate on the IDT that authorizes the use of restraint
and must concur with the IDT's recommendation concerning the use of restraint.
(3)
An individual's behavior therapy program must be developed
and implemented as described in this subchapter and 42 CFR §483.450 (Condition
of Participation: Client Behavior and Facility Practices).
(4)
The written behavior therapy program must:
(A)
describe the targeted behavior;
(B)
describe reliable and representative baseline data indicating
the frequency and severity of the targeted behavior;
(C)
summarize the results of a functional analysis of the targeted
behavior;
(D)
specify behavioral objectives;
(E)
describe detailed procedures for implementation of the
behavior therapy program to include:
(i)
the chosen intervention;
(ii)
the recommended replacement behavior and how it is to
be introduced; and
(iii)
the techniques to prevent the occurrence of the targeted
behavior;
(F)
provide instructions for an evaluation of the individual
by a nurse for injuries and overall well-being after the individual is released
from restraint, if restraint is the chosen intervention and the IDT determines
that an evaluation by a nurse is necessary;
(G)
describe methods for evaluating the program's effectiveness
to include collection and analysis of data;
(H)
describe procedures for making timely revisions to the
program based on an analysis of data if the specified behavioral objectives
are not met; and
(I)
specify the timeframes for reviewing the program.
(d)
Review and approval of and consent to a behavior therapy
program. Prior to initiation of a behavior therapy program, the state MR facility
must ensure that:
(1)
the behavior therapy program is reviewed and approved by:
(A)
the individual's IDT;
(B)
the state MR facility's Human Rights Committee (HRC); and
(C)
the state MR facility's behavior therapy committee; and
(2)
facility staff obtain and document in the individual's
record that legally adequate consent or authorization for the behavior therapy
program was obtained as described in §415.406 of this title (relating
to Requirement to Obtain Legally Adequate Consent or Authorization by the
Head of the Facility) after review and approval of the behavior therapy program
by, as appropriate:
(A)
the individual with the ability to provide legally adequate
consent;
(B)
the LAR of an individual who does not have the ability
to provide legally adequate consent; or
(C)
the head of the state MR facility, if the individual does
not have the ability to provide legally adequate consent and does not have
an LAR.
(e)
Use of a highly restrictive procedure.
(1)
Except as described in paragraph (2) of this subsection,
a behavior therapy program employing a highly restrictive procedure will not
be approved by an individual's IDT, the state MR facility's HRC, or the state
MR facility's behavior therapy committee unless a behavior therapy program
that employs less restrictive procedures has been systematically attempted
and failed to modify or replace the targeted behavior. Procedures for teaching
replacement behaviors must be implemented simultaneously.
(A)
If a highly restrictive procedure is being considered,
evidence must be present in the individual's record that describes other less
restrictive and less intrusive interventions, including verbal or other de-escalative
interventions, that have been employed and found to be ineffective in modifying
or replacing the targeted behavior.
(B)
If the highly restrictive procedure being considered is
restraint the individual's IDT must:
(i)
obtain written authorization from a physician, advanced
practice nurse, or physician assistant stating that the individual has no
known physical or medical condition that would constitute a risk to the individual
during the use of restraint;
(ii)
consider other factors that might be contraindications
to the use of restraint, including the individual's cognitive functioning
level, size, weight, emotional condition, including whether the individual
has a history of having been physically or sexually abused, and age; and
(iii)
limitations on specific techniques or mechanical devices
for restraint as documented in the individual's record in accordance with §415.355(b)(2)
and (c) of this title (relating to General Principles for the Use of Restraint).
(C)
If the individual's medical condition changes and becomes
a contraindication to the use of restraint, the physician must review the
authorization.
(D)
The state MR facility's HRC must approve any significant
increase in the intensity or duration of a highly restrictive procedure, unless
the behavior therapy plan specifies the conditions under which an increase
may occur.
(2)
If an individual's inappropriate behavior is so severe
(i.e., life threatening) or of such duration that other therapeutic approaches
are currently precluded, the individual's IDT, the HRC, and the behavior therapy
committee may approve and the state MR facility may implement a behavior therapy
program that employs a highly restrictive procedure without first attempting
a behavior therapy program that does not employ highly restrictive procedure.
(f)
Review by qualified mental retardation professional.
(1)
The individual's QMRP, as defined in 42 CFR §483.430(a),
concerning qualified mental retardation professional, must review the behavior
therapy program to assess whether the specified behavioral objectives are
being met:
(A)
during the quarterly review of the Individual Plan of Care;
or
(B)
more frequently, if the QMRP believes changes in the individual's
behavior, functioning level, or physical, or medical condition warrant it.
(2)
If the individual's QMRP determines that the behavioral
objectives specified in the program are not being met, or that significant
changes in the individual's behavior, functioning level, or physical or medical
condition have occurred, the QMRP must notify the individual's treating psychologist.
§415.407.Requirement to Obtain Legally Adequate Consent or Authorization by the Head of the Facility.
(a)
A state MR facility must obtain legally adequate consent
before implementing a behavior therapy program that utilizes a highly restrictive
procedure or otherwise restricts the rights or privileges of an individual,
except as provided in subsection (b) of this section.
(1)
If an individual has the ability to provide legally adequate
consent, the state MR facility will attempt to obtain legally adequate consent
from the individual.
(2)
If an individual lacks the ability to provide legally adequate
consent and has an LAR, the state MR facility will attempt to obtain legally
adequate consent from the LAR.
(3)
Efforts taken by the state MR facility to obtain legally
adequate consent from an individual or LAR must be documented in the individual's
record.
(b)
If an individual lacks the ability to provide legally adequate
consent and does not have an LAR, the head of the state MR facility, in accordance
with THSC, §592.054, may authorize implementation of a behavior therapy
program that utilizes a highly restrictive procedure or otherwise restricts
the rights or privileges of an individual
(c)
An individual with the ability to provide legally adequate
consent or the LAR of an individual who lacks the ability to provide legally
adequate consent may:
(1)
withhold consent to the implementation of a behavior therapy
program that utilizes a highly restrictive procedure or otherwise restricts
the rights or privileges of the individual; or
(2)
withdraw consent at any time to the continued implementation
of a behavior therapy program that utilizes a highly restrictive procedure
or otherwise restricts the rights or privileges of the individual.
(d)
If legally adequate consent is withheld or withdrawn by
an individual or LAR as described in subsection (c) of this section:
(1)
state MR facility staff must document in the individual's
record the time, date, and circumstances under which the withholding or withdrawal
of consent occurred; and
(2)
the individual's IDT must convene to discuss alternative
interventions to address the targeted behavior.
(e)
The consent to the behavior therapy program given by the
individual or LAR or authorization by the head of the state MR facility must
be reviewed by the individual's IDT and the state MR facility's HRC at least
annually and upon any substantive modification of the program or significant
change in the individual's medical condition
§415.408.Use of Restraint.
If restraint is used as part of a behavior therapy program, it must
be implemented as described in §415.355 of this title (relating to General
Principles for the Use of Restraint) and §412.357 of this title (relating
to Use of Restraint in a Behavior Therapy Program).
§415.409.Documenting and Reporting Behavior Therapy Programs That Use Highly Restrictive Procedures.
Each state MR facility must prepare and submit to the State Mental
Retardation Facilities division in Central Office a report for each fiscal
year quarter detailing the implementation of behavior therapy programs that
utilize highly restrictive procedures, to include:
(1)
the number of individuals 18 years of age or older for
whom approved behavior therapy programs were in place during each month of
the fiscal year quarter;
(2)
the number of individuals under 18 years of age for whom
approved behavior therapy programs were in place during each month of the
fiscal year quarter; and
(3)
a description of highly restrictive procedures utilized
in those programs.
§415.410.Staff Training in Behavior Therapy.
(a)
The state MR facility must inform each employee whose work
responsibilities involve direct contact with individuals of the employee's
role and responsibilities under this subchapter and under the state MR facility's
written policies and procedures related to this subchapter.
(b)
Before an employee assumes work responsibilities that might
require the employee to implement procedures described in a behavior therapy
program, the state MR facility will ensure that the employee receives training
and demonstrates competence in the specific procedures required by the behavior
therapy program.
(c)
The state MR facility will ensure that each employee whose
work responsibilities require the employee to implement procedures described
in a behavior therapy program must demonstrate competence in those procedures
at least annually, and whenever the procedures required by a behavior therapy
program are changed. If an employee does not demonstrate competence in the
required procedures, the state MR facility will ensure that the employee receives
training and demonstrates competence in those procedures.
(d)
Documentation of training and demonstrated competence for
each employee will be kept by the state MR facility.
§415.411.References.
Reference is made to the following statutes and regulations:
(1)
42 CFR §§483.410-483.480 et. seq., (Conditions
of Participation for Intermediate Care Facilities for Persons with Mental
Retardation);
(2)
42 CFR §483.430(a), concerning qualified mental retardation
professional;
(3)
42 CFR §483.440(f)(3), concerning specially constituted
committee;
(4)
42 CFR §483.450 (Condition of Participation: Client
Behavior and Facility Practices);
(5)
42 CFR §483.450(b), concerning the management of inappropriate
behavior;
(6)
42 CFR §483.450(c), concerning timeout rooms;
(7)
Texas Family Code, Chapter 31;
(8)
THSC, Title 7, §591.006;
(9)
THSC, §592.054;
(10)
§415.355 of this title (relating to General Principles
for the Use of Restraint) and §412.357 of this title (relating to Use
of Restraint in a Behavior Therapy Program); and
(11)
40 TAC §90.42(e)(4)(A) (relating to Standards for
Facilities Serving Persons with Mental Retardation or Related Conditions).
§415.412.Distribution.
(a)
This subchapter shall be distributed to:
(1)
members of the Texas Mental Health and Mental Retardation
Board;
(2)
executive, management, and program staff in Central Office;
(3)
heads of state MR facilities;
(4)
individual advocates and advocacy organizations, and
(5)
Texas Department of Human Services, Long Term Care Division.
(b)
The head of the state MR facility shall ensure that appropriate
staff receive copies of this subchapter.
(c)
A copy of this subchapter shall be made available upon
request to:
(1)
an individual;
(2)
the LAR of an individual;
(3)
the counsel of record of an individual or LAR;
(4)
an actively involved family member or friend of an individual;
(5)
a state MR facility employee; or
(6)
any interested party.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on January 12, 2004.
TRD-200400176
Rodolfo Arredondo
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: February 22, 2004
For further information, please call: (512) 206-5232