TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 3. TEXAS YOUTH COMMISSION

Chapter 95. YOUTH DISCIPLINE

Subchapter A. DISCIPLINARY PRACTICES

37 TAC §95.16

The Texas Youth Commission (the commission) adopts new §95.16, concerning Primary Intervention Program without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10227).

The justification for the new rule is to provide chronically disruptive youth with more target-specific behavioral intervention and enhanced opportunities to progress in the agency's Resocialization program. The new rule establishes a program which will function as a dorm-based intensive treatment intervention and disciplinary consequence for youth who repeatedly engage in non-violent behavior that disrupts facility operations or negatively impacts facility safety.

The commission received comments from Advocacy, Inc regarding the proposed new rule. The comments are summarized below, followed by the commission's response.

Comment: Regarding subsection (c)(3), a recommendation was made to add a psychologist or child psychiatrist to the Phase Assessment Team (PAT).

Response: The commission is not funded at a level which would allow for a psychologist or child psychiatrist to be present at every PAT. Every youth is assessed monthly, and to coordinate the presence of either of these professionals would require additional funding of psychiatric and psychological services. If a youth is seen by either of these professionals, there is a formal process by which feedback is provided to the PAT for incorporation in phase assessment and additional mental health adaptations in the behavioral phase assessment. There is also a process for PAT-identified youth suspected of having mental health conditions warranting additional assessment to be referred to psychology for screening/testing and then to psychiatry. However, given existing resources, there is a system in place to identify youth in need of formal assessment and increased clinical resources. The commission made no changes to the rule in response to the recommendation.

Comment: Regarding subsection (f)(4), the comment expressed concern that a psychologist, not a child psychiatrist, interviews the youth prior to the implementation of the Primary Intervention Program. The comment also expressed the belief that it is clinically appropriate and in the best interest of the youth to be evaluated by a child psychiatrist, who would be able to prescribe psychotropic medications if needed.

Response: The commission's practice is to screen youth via psychological clinical interview with a Masters or Ph.D. psychologist prior to referral to the psychiatrist. Psychologists have expertise in psychometric testing which may be used for differential diagnosis and a current measure of intellectual/adaptive functioning as deemed clinically necessary. All referrals are tracked through the Director of Clinical Services and Special Services Committee to ensure accountability. All youth deemed in need of psychiatric services are referred to psychiatry through the Psychology Departments at each TYC facility. This process ensures the necessary screening and differential diagnosis to best utilize psychiatric services and ensure that all youth on ongoing psychiatric caseloads are seen in a timely manner, in addition to newly identified youth. Some youth may be seen by psychiatry and receive psychological individual counseling. Every TYC facility has a formal referral procedure for psychological and psychiatric services. Any youth deemed in need of assessment for placement on psychotropic medication is referred to the Psychology Department and assigned, by the Director of Clinical Services, for a clinical assessment by an MA or Ph.D psychologist and referred to psychiatrist. Only a psychiatrist can prescribe psychotropic medication to a youth. As deemed necessary, some youth receive both psychiatric medication and monitoring and psychological counseling. The commission made no changes to the rule in response to the comments.

The new rule is adopted under the Human Resources Code, §61.075, which provides the TYC with the authority to order a child's confinement under conditions it believes best designed for the child's welfare and the interests of the public.

The adopted rule implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407475

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §95.17

The Texas Youth Commission (the commission) adopts the repeal of §95.17, concerning Behavior Management Program without changes to the proposal as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10229).

The justification for the repeal of this section is to allow for a significantly revised rule to be published in its place.

No comments were received regarding adoption of the repeal.

The repeal is adopted under the Human Resources Code, §61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its function.

The adopted rule implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 27, 2004.

TRD-200407497

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §95.17

The Texas Youth Commission (the commission) adopts new §95.17, concerning Behavior Management Program with changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10229). Changes to the proposed text consist of a revision to subsection (k)(2)(A). Clarification was added to reflect that a youth may not be transferred directly from a Behavior Management Program into Aggression Management Program. Upon a finding of true that a youth committed an AMP-eligible rule violation while assigned to a BMP, pursuant to §95.43 of this title the youth will be transferred to IDP while awaiting AMP admission. A minor revision occurred in subsection (i)(2)(A)(i); the word "least" was inadvertently omitted from the original proposal; therefore, the word was reinstated.

The justification for the new rule is to provide youth with enhanced opportunities to progress in the agency's Resocialization program and contribute to overall facility safety and order by reducing high-risk behaviors. The enhancement of the present program is designed to deliver target-specific treatment intervention in a highly secure environment, with a structured campus reintegration component.

The commission received comments from Advocacy, Inc. regarding the proposed new rule. The comments are summarized below, followed by the agency's response.

Comment: Regarding subsection (d)(1), a recommendation was made to include a child psychiatrist on the Special Services Panel.

Response: The commission disagrees with this recommendation. The Director of Clinical Services (DOCS), a licensed Ph.D. Psychologist (licensed by the State of Texas Examiners of Psychologists) chairs the Special Services Panel. Any youth for whom a Behavior Management Program (BMP) is determined prior to placement on a BMP to be clinically contraindicated would not be placed on a BMP. Psychological assessment prior to BMP placement ensures that appropriate clinical services and intervention are developed to best serve any youth having a psychiatric history. The commission believes that psychiatric services are best utilized for psychiatric assessment and medication monitoring for those youth currently being seen or referred. Any psychiatric information is communicated by the psychiatrist to the DOCS or available to the DOCS via an electronic medical record. The commission made no changes to the rule in response to the recommendation.

Comment: Regarding subsection (f)(1)(A), the comment expressed concern that a psychologist, not a child psychiatrist, interviews the youth prior to the implementation of a BMP. The comment also expressed the belief that it is clinically appropriate and in the best interest of the youth to be evaluated by a child psychiatrist, who would be able to prescribe psychotropic medications if needed.

Response: The commission's practice is to screen youth via psychological clinical interview with a Masters or Ph.D. psychologist prior to referral to the psychiatrist. Psychologists have expertise in psychometric testing which may be used for differential diagnosis and a current measure of intellectual/adaptive functioning as deemed clinically necessary. All referrals are tracked through the Director of Clinical Services and Special Services Committee to ensure accountability. All youth deemed in need of psychiatric services are referred to psychiatry through the psychology departments at each facility. This process ensures the necessary screening and differential diagnosis to best utilize psychiatric services and ensure that all youth on ongoing psychiatric caseloads are seen in a timely manner, in addition to newly identified youth. Some youth may be seen by psychiatry and receive psychological individual counseling. Every facility has a formal referral procedure for psychological and psychiatric services. Any youth deemed in need of assessment for placement on psychotropic medication is referred to the Psychology Department and assigned, by the Director of Clinical Services, for a clinical assessment by an MA or PH.D psychologist. Only a psychiatrist can prescribe psychotropic medication to a youth. As deemed necessary, some youth receive both psychiatric medication and monitoring and psychological counseling. The commission made no changes to the rule in response to the comment.

Comment: Regarding subsection (g)(2)(B), the comment expresses confusion about the language used to describe the relationship between the Individualized Education Program (IEP) and the BMP. A BMP should be part of the child's IEP, and therefore one should not be in effect without the other. Advocacy, Inc. would strongly recommend changing the language about the BMP and IEP.

Response: The commission disagrees with the recommendation. The Behavioral Management Program (BMP) should not be confused with a behavior intervention plan (BIP) specified in 34 CFR 300.519-529 and alluded to in 34 CFR 300.346(a)(2). A BMP is a non-educational, corrections implemented progressive dorm reintegration program. The goal is to address the aggressive or chronically disruptive behavior where dorm intervention based programs have been unsuccessful.

In most cases, the behaviors leading to consideration of a BMP have not interfered with the youth's educational progress, including progress toward achieving a youth's IEP goals and objectives. However, in accordance with 34 CFR 300.346(a)(2), whenever a youth engages in behavior in the classroom that the teacher, administrator, or parent believes significantly impedes the youth's learning or the learning of others, the teacher, administrator, or parent, must request that an ARD committee meeting be convened to discuss the potential need for further educational intervention(s), such as a BIP. It may be the ARD committee's decision to gather further evaluation data (either existing or new) as part of a Functional Behavioral Assessment (FBA), before determining the need for a BIP.

The convening of an ARD committee meeting to discuss the implications of disruptive or interfering behaviors on implementation of a youth's IEP has been designated at the commission as a Behavior Review ARD meeting. At this meeting the committee will specify, if appropriate, the need for the development of any positive behavioral interventions, strategies, and/or supports to address the behavior. These specified behavioral interventions, strategies, and supports constitute a BIP and would be incorporated into the youth's IEP.

A BIP is NOT to be confused with the commission's BMP that is developed and implemented accordance with §95.17. Whereas a BIP is developed by an ARD committee to address behavior concerns for a special education student only in the school setting, a BMP is developed, implemented, and monitored by correctional and treatment staff, with input from educational staff. In situations where a youth's behaviors lead to the development of an ARD-determined BIP, and a youth is also participating in the BMP, the youth's Phase Assessment Team (PAT) is required to coordinate information from the BMP and BIP to assess the youth's progress. The commission made no changes to the rule in response to the recommendation.

Comment: Regarding subsection (g)(5), the comment expressed a desire to see more information regarding dorm caseworkers' responsibilities and qualifications, and a recommendation that the qualifications of the position be at least LPC or MSW.

Response: The commission strives to recruit qualified, credentialed casework professionals; however, the barriers due to the rural locations of the commission facilities adds a challenge to this commitment. The majority of caseworkers, 68%, have a BA degree in social science. All caseworkers receive training in the Resocialization Program (44 hours), and ongoing case management and core intervention group supervision by their Program Administrator. The caseworker conducts Resocialization Core Groups, individual counseling, family contacts (including family therapy), case management, phase assessment, and may participate in behavioral intervention (behavior groups). The commission made no changes to the rule in response to the recommendation.

The new rule is adopted under the Human Resources Code, §61.075, which provides the Texas Youth Commission with the authority to order a child's confinement under conditions it believes best designed for the child's welfare and the interests of the public.

The adopted rule implements the Human Resources Code, §61.034.

§95.17.Behavior Management Program.

(a) Purpose. The Behavior Management Program (BMP) functions as a disciplinary consequence and a means for delivering intensive treatment interventions in a highly secure and structured environment for youth who have engaged in certain high-risk behaviors. This rule sets forth eligibility criteria, program completion requirements, and services to be provided to youth in the program.

(b) Authorized Facilities. The facilities authorized to administer the BMP are:

(1) Texas Youth Commission (TYC)-operated high restriction facilities; and

(2) residential facilities operating under contract with TYC which are approved by the TYC executive director or designee to administer a BMP.

(c) Applicability.

(1) The BMP is administered in the security unit except as noted herein. All standard security unit requirements and services as set forth in §97.36 of this title (relating to Standard Security Unit Program Requirements), unless otherwise noted herein, shall be observed while the youth is in the security unit.

(2) This rule does not apply to:

(A) the use of the same or adjacent space when used specifically as security intake. See §97.37 of this title (relating to Security Intake);

(B) the use of the same or adjacent space when used specifically as a security program. See §97.40 of this title (relating to Security Program);

(C) the use of the same or adjacent space when used specifically as detention in a TYC institution. See §97.43 of this title (relating to Institution Detention Program);

(D) the use of the same or adjacent space when used specifically as protective custody. See §97.45 of this title (relating to Protective Custody);

(E) the use of same or adjacent space when used specifically as temporary admission. See §85.41 of this title (relating to Temporary Admission Awaiting Transportation);

(F) the Aggression Management Program. See §95.21 of this title (relating to Aggression Management Program).

(d) Explanation of Terms Used.

(1) Special Services Panel--a panel that reviews the recommendation for a youth's admission to BMP. At a minimum, the panel includes a caseworker and a program administrator who are not responsible for direct supervision of the youth, and the director of clinical services (DOCS).

(2) Progress Review Team--a team which assesses youth progress through the stages of the BMP. At a minimum, the team includes the director of security, a staff psychologist, the security caseworker, the youth's dorm program administrator, and a representative from education.

(3) Individual Behavior Management Plan (IBMP)--a plan developed for each youth placed in the BMP which consists of objectives that address the behavior or cluster of behaviors that prevent the youth from successfully participating in regular programming.

(4) Security Unit--see definition in §97.36 of this title.

(5) Security Program--see program description in §97.40 of this title.

(6) Core Group--a daily meeting conducted by a caseworker with the youth on a dorm to help the youth develop an understanding of criminal behavior and thinking.

(7) Category I/II Rule Violations--see explanation in §95.3 of this title (relating to Rules of Conduct).

(8) Primary Intervention Program (PIP)--see program description in §95.16 of this title (relating to Primary Intervention Program).

(9) Admission, Review, and Dismissal (ARD) committee--a committee that makes decisions on educational matters relating to special education-eligible students.

(10) Individualized Education Program (IEP)--the program of special education and related services developed by a student's ARD committee.

(11) Institution Detention Program (IDP)--see program description in §97.43 of this title.

(e) Program Eligibility. A youth who knowingly engages in, aids, or abets someone else to engage in one or more of the following high risk behaviors is eligible for placement in a BMP:

(1) willful destruction of property of $50 or more;

(2) assault resulting in bodily injury;

(3) escape or attempted escape as defined in §95.3 of this title;

(4) fleeing apprehension which results in a significant disruption of campus operations;

(5) riotous conduct as defined in §95.3 of this title;

(6) sexual assault, aggravated sexual assault, or inappropriate sexual contact other than just kissing;

(7) possessing any item defined as a weapon in the Penal Code or threatening others with use of an object which could be used as a weapon;

(8) threatening imminent bodily injury as defined in §95.3 of this title;

(9) unauthorized possession or use of a controlled substance or marijuana;

(10) self-harm or threatening self-harm, which has been clinically assessed by a mental health professional as not motivated by mental illness pursuant to assessment procedures as set forth in §91.88 of this title (relating to Suicide Alert for Secure Programs);

(11) chronic disruptive behavior, as demonstrated by:

(A) five (5) or more admissions or extensions to the security program in a 30-day period, or ten (10) or more admissions or extensions to the security program in a three (3)-month period; and

(B) release within the previous six (6) months from a PIP or BMP; or

(12) behavior which is found in a due process hearing to be eligible for placement in the AMP pursuant to §95.21 of this title and subsequently denied admission to AMP.

(f) Admission Decision.

(1) Except as described in paragraph (2) of this subsection, the following is the process by which a determination shall be made to place a youth in a BMP.

(A) Upon a recommendation by staff for placement in a BMP, a psychologist shall interview the youth and document an assessment of the motivation for the behavior and the mental status of the youth to determine whether any therapeutic contraindications for admission exist.

(B) The assistant superintendent shall approve the request to hold a due process hearing in order to pursue placement in a BMP upon a determination by the Special Services Panel that:

(i) the youth poses a continuing risk for identified admitting behavior(s);

(ii) less restrictive methods of documented intervention have been attempted when appropriate; and

(iii) the mental status of the youth has been assessed and there are no therapeutic contraindications for admission to the BMP.

(C) A due process hearing shall be held in accordance with procedures set forth in §95.51 of this title (relating to Level I Hearing Procedure) or §95.55 of this title (relating to Level II Hearing Procedure). If there is a finding of true with no extenuating circumstances that the youth engaged in one of the behavioral criteria listed in subsection (e) of this section, the youth shall be admitted to the BMP.

(2) For youth in IDP that were denied admission to AMP, the superintendent or assistant superintendent shall make a determination whether or not to admit the youth to the BMP.

(g) Program Requirements.

(1) The BMP shall not exceed 90 days in duration.

(2) Special education services are provided in accordance with ARD committee decisions.

(A) If a determination is made by the principal that the youth's IEP cannot be implemented while the youth is on a BMP, an ARD committee meeting shall be held to develop an appropriate IEP to be implemented while the youth is in the security unit on a BMP.

(B) The ARD committee shall also determine whether or not the youth's IEP in effect prior to the BMP will be reinstated upon the youth's release from the BMP. If a determination is made not to reinstate the prior IEP, the committee shall reconvene upon the youth's release from BMP to develop a new IEP.

(3) An IBMP shall be developed for each youth.

(A) The plan will be developed by the youth's caseworker, in consultation with the security caseworker, psychologist, and education staff.

(B) The plan will consist of objectives that address the specific target behavior or cluster of behaviors that led to admission to the BMP, taking into consideration the psychologist's recommendations to address the motivation for the behavior.

(C) The plan must involve strategies for intervention and prevention.

(D) The plan must include a component which addresses transition to the general campus population.

(E) Objectives for release shall be clearly written in the IBMP.

(F) The plan shall be explained to the youth and he/she will sign the plan in acknowledgment.

(4) The IBMP and youth's progress with regard to target behaviors is reviewed and evaluated every seven (7) days by the Progress Review Team.

(5) The youth's dorm caseworker shall provide at least 45 minutes of individual counseling with the youth every 30 days.

(6) Youth shall spend time out of the security unit as described herein. Participation in campus programming is contingent upon compliance with programming. If a youth is non-compliant with programming, the security caseworker will determine appropriate programming based on the youth's conduct and level of risk, pending the weekly Progress Review Team assessment.

(h) Stage Determination for Youth Transferred from IDP while Awaiting AMP Admission.

(1) Upon a determination by the superintendent or assistant superintendent to place the youth on a BMP, the Progress Review Team will evaluate the youth's behavior and progress toward meeting goals and objectives while assigned to the IDP and determine the appropriate BMP stage at which the youth will begin progression through the BMP, not to exceed Stage 3.

(2) The number of days spent in IDP following the date of the youth's due process hearing will be credited toward the 90-day maximum in the BMP.

(i) Progress Through Program Stages. The program consists of five (5) stages. Movement through each stage is based on successful completion of performance objectives.

(1) Stage 1. Stage 1 shall last a minimum of seven (7) days.

(A) Services and Activities.

(i) At least five and one-half (5 1/2) hours daily of academic services will be provided in the security unit.

(ii) Daily counseling and progress reviews with the designated security caseworker, with a minimum of one weekly 20-minute session.

(iii) Weekly meetings by the Progress Review Team to discuss progress on IBMP objectives.

(iv) Target-specific materials (e.g., anger management, gang intervention strategies) and weekly opportunities to review and discuss material with staff.

(v) Weekly mental health status exams by a psychologist.

(B) Stage 1 Completion Criteria.

(i) Observe standardized security unit rules with no Category I rule violations and no more than three (3) Category II rule violations within the seven-day review period.

(ii) Meet short-term IBMP objectives and complete verbal and written assignments.

(2) Stage 2. Stage 2 shall last a minimum of seven (7) days.

(A) Services and Activities.

(i) At least five and one-half (5 1/2) hours daily of academic services will be provided in the security unit.

(ii) Five (5) hours per week of behavior group on the dorm, provided by appropriate staff.

(iii) Daily counseling and progress reviews with the designated security caseworker, with a minimum of one weekly 20-minute session.

(iv) Weekly meetings by the Progress Review Team to discuss progress on IBMP objectives.

(v) Target-specific materials (e.g., anger management, gang intervention strategies) and weekly opportunities to review and discuss material with staff.

(vi) Weekly mental health status exams by a psychologist.

(B) Stage 2 Completion Criteria.

(i) Observe standardized security unit rules with no Category I rule violations and no more than two (2) Category II rule violations within the seven-day review period.

(ii) Meet short-term IBMP objectives and complete verbal and written assignments.

(3) Stage 3. Stage 3 shall last a minimum of seven (7) days.

(A) Services and Activities.

(i) At least five and one-half (5 1/2) hours daily of academic services will be provided, consisting of at least four (4) hours on campus.

(ii) Five (5) hours per week of behavior group on the dorm, provided by appropriate staff.

(iii) Daily counseling and progress reviews with the designated security caseworker, with a minimum of one weekly 20-minute session.

(iv) Weekly meetings by the Progress Review Team to discuss progress on IBMP objectives.

(v) Target-specific materials (e.g., anger management, gang intervention strategies) and weekly opportunities to review and discuss material with staff.

(B) Stage 3 Completion Criteria.

(i) Observe standardized security unit rules with no Category I rule violations and no more than two (2) Category II rule violations within the seven-day review period.

(ii) Meet short-term IBMP objectives and complete verbal and written assignments.

(4) Stage 4. Stage 4 shall last a minimum of seven (7) days.

(A) Services and Activities.

(i) At least five and one-half (5 1/2) hours daily of academic services will be provided on campus.

(ii) Participation in youth's daily dorm program.

(iii) Weekly meetings by the Progress Review Team and youth's dorm caseworker to discuss progress on IBMP objectives.

(iv) Target-specific materials (e.g., anger management, gang intervention strategies) and weekly opportunities to review and discuss material with staff.

(B) Stage 4 Completion Criteria.

(i) Observe standardized security unit rules with no Category I rule violations and no more than one (1) Category II rule violation within the seven-day review period.

(ii) Meet short-term IBMP objectives and complete verbal and written assignments.

(5) Stage 5. Stage 5 shall not exceed 30 consecutive days in duration. Youth are released from the security unit immediately upon completion of Stage 4 and begin participating in a Primary Intervention Program (PIP) on an assigned general population dorm. Youth may earn phases in all areas of Resocialization while on this stage.

(A) Services and Activities. See §95.16 of this title for program components.

(B) Stage 5 Completion Criteria.

(i) Completion of 30 consecutive days with no Category I rule violations, no more than one (1) Category II rule violation in any seven-day review period, no security referrals in any seven-day review period and compliance with short term IBMP objectives; or

(ii) Completion of 90th day from initial admission to the BMP.

(j) Progress Reviews.

(1) For Stages 1 - 4. The Progress Review Team, in consultation with the youth's dorm caseworker when appropriate, reviews the youth's IBMP and evaluates the completion of stage requirements and the effectiveness of treatment strategies every seven (7) days.

(A) Stage Promotion. Youth who meet the established stage completion criteria must be promoted to the next stage.

(B) Stage Retention/Demotion.

(i) Youth who fail to meet established stage completion criteria may be retained on the same stage or demoted one or more stages.

(ii) The Progress Review Team shall make a determination whether to retain or demote based on the level of youth non-compliance with completion criteria.

(iii) Demotions of more than one stage may be administered only upon a youth's commission of a Category I rule violation during the review period.

(iv) A stage demotion requires a Level III due process hearing. See §95.57 of this title (relating to Level III Hearing Procedure).

(2) For Stage 5. The Phase Assessment Team (PAT), with initial consultation with the security caseworker, reviews the youth's PIP plan objectives and behavior on a weekly basis in accordance with §95.16 of this title.

(A) Stage Maintenance. Youth who meet the following requirements in each seven-day review are maintained on Stage 5 until completion of the program:

(i) comply with PIP plan objectives;

(ii) commit no Category I rule violations and no more than one (1) Category II rule violation; and

(iii) no security referrals.

(B) Stage Demotion.

(i) Youth who fail to meet stage maintenance requirements may be demoted one or more stages.

(ii) The PAT shall make a determination whether to demote based on the level of youth non-compliance with stage maintenance criteria.

(iii) Demotions of more than one stage may be administered only upon a youth's commission of a Category I rule violation during the review period.

(iv) A stage demotion requires a Level III due process hearing. See §95.57 of this title.

(k) Release from BMP.

(1) Program Completion. A youth has completed the program and shall be returned to regular programming when one of the following occurs:

(A) the youth has completed Stage 5 of the BMP; or

(B) the youth has completed 90 days from the date of initial admission to the BMP.

(2) Release without Program Completion. A youth shall be released from BMP when one of the following occurs prior to program completion:

(A) the youth is transferred to the AMP pursuant to §95.21 of this title;

(B) a determination by the superintendent or designee that the program has failed to be implemented as designed for reasons other than non-compliance of the youth;

(C) a decision by the superintendent or designee to release the youth to the general population based on:

(i) population concerns in the security unit; or

(ii) a recommendation by a mental health professional due to the youth's mental health condition.

(D) a decision by the receiving superintendent or designee not to continue the BMP after transfer of the youth to another high restriction facility; or

(E) placement on a new BMP upon a finding of true in a Level II hearing that the youth committed a rule violation listed in subsection (e) of this section while assigned to a BMP.

(l) Right to Appeal. The youth shall be notified in writing of his/her right to appeal the BMP placement to the executive director. See §93.53 of this title (relating to Appeal to Executive Director). The pendency of an appeal shall not preclude implementation of the decision.

(m) Family Notification. A youth's parents or guardian shall be notified within 24 hours of the hearing of the youth's admission to the BMP if allowable under §87.5 of this title (relating to Family Involvement).

(n) Impact on Length of Stay.

(1) A placement in a BMP will not impact a youth's classification minimum length of stay or any disciplinary minimum length of stay.

(2) Pursuant to a Level II hearing, certain youth who are assessed a disposition under this rule may also be assigned a disciplinary minimum length of stay disposition, but only if criteria have been met and if the youth was given notice of the specific disposition request. All policy and program requirements of §95.11 of this title (relating to Disciplinary Transfer/Assigned Minimum Length of Stay/Demotion of Phase Consequence) will apply to the assignment of such.

(3) Youth are not eligible to earn Resocialization phases while on Stages 1- 4 of the BMP.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407476

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §95.21

The Texas Youth Commission (the commission) adopts an amendment to §95.21, concerning Aggression Management Program without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10233).

The justification for amending the section is to provide appropriate services for youth pending admission to the Aggression Management Program with serious high-risk behaviors.

The amendment will allow for youth pending admission to the Aggression Management Program (AMP) with an assigned maximum length of stay will remain or be placed in the Institution Detention Program (IDP) at the youth's current placement. If the youth completes the maximum length of stay in the IDP prior to admission in AMP, the youth shall not be admitted to AMP.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.075, which provides the commission with the authority to determine services for the youth's confinement under conditions it believes best designed for the youth's welfare and the interests of the public.

The adopted rule implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407477

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


Subchapter B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §95.57

The Texas Youth Commission (the commission) adopts an amendment to §95.57, concerning Level III Hearing Procedure without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10236).

The justification for amending the section is afford a due process hearing for admission to the Primary Intervention Program (PIP) or a stage demotion in the Behavior Management Program (BMP) for disciplinary consequences.

The amendment will require a Level III hearing for admission to the PIP or a stage demotion in the BMP.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.075, which provides the commission with the authority to determine services it believes conducive to acceptable behavior.

The adopted rule implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407478

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


Chapter 97. SECURITY AND CONTROL

Subchapter A. SECURITY AND CONTROL

37 TAC §97.36

The Texas Youth Commission (the commission) adopts new §97.36, concerning Standard Security Unit Program Requirements, without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10237).

The justification for the new section is to provide standardized services to promote a safe environment for the youth and staff at the commission's institutions.

The new section will provide standard service delivery, contact, and security requirements for all programs administered through the commission-operated security unit.

No comments were received regarding adoption of the new section.

The new section is adopted under the Human Resources Code, §61.045, which provides the commission with the authority to take appropriate measures to ensure the safety of the youth and staff.

The adopted section implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407481

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §97.37

The Texas Youth Commission (the commission) adopts an amendment to §97.37, concerning Security Intake, with changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10239).

The justification for amending the section allows for a new reference regarding Standard Security Unit Program requirements to be incorporated in this rule.

The amendment will reference a new §97.36, regarding Standard Security Unit Program requirements, which is simultaneously adopted in this issue of the Texas Register .

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its function.

The adopted amendment implements the Human Resources Code, §61.034.

§97.37.Security Intake.

(a) Purpose.

(1) The purpose of this rule is to establish criteria and procedure for segregating youth from the general population under certain circumstances. Each Texas Youth Commission (TYC) operated institution or secure contract program provides for segregation programs. Placement in a segregation program may be imposed only in specific situations for specified periods of time. Youth who may be eligible for a placement in a segregation program may be initially referred to the security intake. Such youth are placed into a secure setting that is controlled exclusively by staff.

(2) If a youth from the community is referred to the institution for placement in protective custody, and the youth arrives without a formal assessment by a mental health professional (MHP), that youth will be placed in security intake, pending face-to-face assessment.

(b) Applicability.

(1) This rule does not apply to:

(A) the use of the same or adjacent space when used specifically as a Security Program. See §97.40 of this title (relating to Security Program);

(B) the use of the same or adjacent space when used specifically as detention in lieu-of-county detention or specifically as institution detention. See §97.43 of this title (relating to Institution Detention Program);

(C) the use of the same or adjacent space when used specifically as a disciplinary segregation program. See §95.17 of this title (relating to Behavior Management Program);

(D) the use of the same or adjacent space when used specifically as protective custody. See §97.45 of this title (relating to Protective Custody);

(E) the use of the same or adjacent space when used specifically as temporary admission. See §85.41 of this title (relating to Temporary Admission Awaiting Transportation); and

(F) the Aggression Management Program (AMP). See §95.21 of this title (relating to Aggression Management Program).

(2) Security intake is administered in the security unit. All standard security unit requirements and services as set forth in §97.36 of this title (relating to Standard Security Unit Program Requirements), unless otherwise noted herein, shall be observed while the youth is in the security unit.

(c) Referral and Admission Criteria. A youth may be admitted to security intake if there is reason to believe, based on overt acts by the youth, and/or under the following circumstances:

(1) the youth is a serious and continuing escape risk; or

(2) the youth is a serious and immediate physical danger to others and staff cannot protect others except by referring the youth to security intake; or

(3) the youth engages in or verbalizes overt or non-lethal suicide behavior as defined in §91.87 of this title (relating to Suicide Alert Explanation of Terms); or

(4) confinement is necessary to prevent imminent and substantial destruction of property; or

(5) confinement is necessary to control behavior that creates disruption of the youth's current program; or

(6) the youth requests confinement, unless self-referrals have been disallowed by the superintendent or designee; or

(7) staff requests detention for a youth.

(d) Referral and Admission Process.

(1) A youth may be referred to the security intake by staff or at the youth's own request.

(2) A youth may be held in security intake on referral for up to one (1) hour.

(3) The superintendent or designee may extend the one (1)-hour time limit up to one (1) additional hour, if requested and necessary, in order to make a proper decision.

(4) Within one (1) hour (or two (2) hours if an extension has been granted) of the youth's arrival at security intake, the designated staff shall determine whether criteria for admission have been met. If admission criteria are met, designated staff may admit youth to the security intake for up to 24 hours.

(5) Designated staff include the superintendent, assistant superintendent, administrative duty officer (ADO), program administrator (PA), institution placement coordinator (IPC), principal, psychologist, caseworker, or designated juvenile correctional officer (JCO) VI trained in the security intake policy and procedure to admit youth to the security intake program. On the late night shift, a JCO V trained in the security intake admission policy and procedure may admit a youth to security intake. The director of security may not admit a youth to security intake.

(6) If a youth is referred to security intake for danger of injury to self, this policy needs to be read in conjunction with §91.88 of this title (relating to Suicide Alert for Secure Programs). Security staff shall immediately contact an MHP and a trained designated staff who must initiate a suicide risk screening within one (1) hour from referral.

(7) The director of security or designee will review all admission decisions within one (1) working day to determine if admission criteria have been met. If the criteria are not met or policy and procedures are not followed, the youth will be released from the security unit. The director of security or designee shall not have been involved in the admission decision.

(8) A youth may appeal the admission decision to the security intake through the youth complaint system as defined in §93.31 of this title (relating to Complaint Resolution System).

(e) Security Intake Termination/Other Segregation Programs.

(1) Within 24 hours of admission to security intake, a youth shall be:

(A) released to the general population; or

(B) admitted to one of the following programs:

(i) Security Program--if it is determined that there are reasonable grounds to believe one or more of the security program admission criteria is occurring. See §97.40 of this title;

(ii) Institution Detention Program--if it is determined that there are reasonable grounds to believe one or more of the institution detention admission criteria is occurring. See §97.43 of this title;

(iii) Protective Custody--if it is determined by an MHP, following a face-to-face assessment, that protective custody admission criteria are occurring. See §97.45 of this title.

(2) If a youth is admitted to security intake for any reason other than danger of injury to self, the youth may be released by the director of security or any designated staff authorized to admit youth in this policy.

(3) Youth admitted to security intake for danger of injury to self may only be released from security intake to the general population under two circumstances:

(A) by an MHP in accordance with §91.88 of this title; or

(B) if an MHP does not assess the youth within 24 hours of admission to intake. The superintendent or assistant superintendent will be contacted immediately and the youth will be returned to the general population under one-to-one (1:1) observation until an MHP conducts a face-to-face suicide risk assessment.

(f) Restrictions.

(1) Segregation shall not be used for retribution at any time.

(2) No minimum length of time in security intake shall be imposed.

(3) The superintendent or assistant superintendent may place moratoriums on self-referrals to security intake for individual dormitories (such as during dorm shutdown), as well as campus-wide when appropriate.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407484

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §97.40

The Texas Youth Commission (the commission) adopts an amendment to §97.40, concerning Security Program, without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10240).

The justification for amending the section allows for a new reference regarding Standard Security Unit Program requirements to be incorporated in this rule.

The amendment will reference a new §97.36, regarding Standard Security Unit Program requirements, which is simultaneously adopted in this issue of the Texas Register .

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its function.

The adopted amendment implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407485

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §97.43

The Texas Youth Commission (the commission) adopts an amendment to §97.43, concerning Institution Detention Program with changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10241).

The justification for amending the section allows for a new reference regarding Standard Security Unit Program requirements to be incorporated in this rule.

The amendment will reference a new §97.36, regarding Standard Security Unit Program requirements, which is simultaneously adopted in this issue of the Texas Register .

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.034 and §61.075, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its function and to determine treatment and liberty under the supervision when behavior is conducive.

The adopted amendment implements the Human Resources Code, §61.034.

§97.43.Institution Detention Program.

(a) Purpose. The purpose of this rule is to establish criteria and procedures for detaining appropriate Texas Youth Commission (TYC) youth in an Institution Detention Program (IDP) operated within each TYC institution or secure contract program, who have charges against them pending or filed, or are awaiting a due process hearing or trial, or awaiting transportation subsequent to a due process hearing or trial.

(b) Applicability.

(1) This rule applies to TYC youth detained in TYC operated institutions or secure contract programs for pre-hearing or post-hearing pending transportation.

(2) The IDP is administered in the security unit except as noted herein. All standard security unit requirements and services as set forth in §97.36 of this title (relating to Standard Security Unit Program Requirements), unless otherwise noted herein, shall be observed while the youth is in the security unit.

(3) This rule does not apply to:

(A) TYC youth detained in community detention facilities. See §97.41 of this title (relating to Community Detention);

(B) the use of the same or adjacent space when used specifically as security intake. See §97.37 of this title (relating to Security Intake);

(C) the use of the same or adjacent space when used specifically as a Security Program. See §97.40 of this title (relating to Security Program);

(D) the use of the same or adjacent space when used specifically as disciplinary segregation. See §95.17 of this title (relating to Behavior Management Program);

(E) the use of the same or adjacent space when used specifically as protective custody. See §97.45 of this title (relating to Protective Custody);

(F) the use of the same or adjacent space when used specifically as temporary admission. See §85.41 of this title (relating to Temporary Admission Awaiting Transportation); and

(G) the Aggression Management Program (AMP). See §95.21 of this title (relating to Aggression Management Program).

(c) Explanation of Terms Used. Detention Review Hearing--the TYC Level IV hearing required by this policy.

(d) Criteria For Placement In An Institution Detention Program.

(1) Designated staff will conduct a review to determine whether admission criteria have been met.

(2) Admission Criteria For Detention Up To 72 Hours.

(A) A youth assigned to a TYC-operated institution or secure contract program may be admitted to the IDP (for up to 72 hours) if:

(i) the youth is awaiting transportation subsequent to a due process hearing or trial; or

(ii) a due process hearing or trial has been requested in writing or charges are pending or have been filed; and

(I) there are reasonable grounds to believe the youth has committed a violation; and

(II) one of the following applies:

(-a-) suitable alternative placement within the facility is unavailable due to on-going behavior of the youth that creates disruption of the routine of the youth's current program; or

(-b-) the youth is likely to interfere with the hearing or trial process; or

(-c-) the youth represents a danger to others; or

(-d-) the youth has escaped or attempted escape as defined in §95.3 of this title (relating to Rules of Conduct).

(B) A youth who is assigned to a placement other than a TYC operated institution or secure contract program may be detained in a TYC operated IDP (up to 72 hours):

(i) if a due process hearing or trial has been requested in writing; and

(ii) based on current behavior or circumstances and all detention criteria must have been met as defined in §97.41 of this title.

(C) A youth may appeal the admission decision to the IDP through the youth complaint system as defined in §93.31 of this title (relating to Complaint Resolution System).

(3) Admission Criteria For Detention Beyond 72 Hours.

(A) A youth who is assigned to a TYC-operated institution or secure contract program may be detained in the IDP beyond 72 hours based on current behavior or circumstances, and all other criteria in paragraph (2) of this subsection have been met.

(B) A youth who is assigned to a placement other than a TYC-operated institution or secure contract program may be detained in a TYC-operated IDP beyond 72 hours based on current behavior or circumstances and all detention criteria in §97.41 of this title have been met.

(4) A hearing will be scheduled as soon as practical but no later than seven (7) days, excluding weekends and holidays, from the date of the alleged violation.

(A) A due process hearing or trial is considered to be scheduled if a due process hearing date and time has been set or trial is pending.

(B) A youth whose due process hearing or trial has been held may be detained without a Level IV hearing when the youth is waiting for transportation:

(i) to the Texas Department of Criminal Justice--Institution Division (TDCJ-ID) following a transfer hearing; or

(ii) to a different placement following a Level I or II hearing.

(C) Transportation should be arranged immediately to take place within 72 hours and anything past that must have the superintendent's approval.

(e) Requirements To Hold Youth In IDP Pending Aggression Management Program Admission Approval.

(1) If a youth is found in a Level I or II hearing to have engaged in behavior which meets eligibility criteria for transfer to the Aggression Management Program (AMP), as set forth in §95.21 of this title and is awaiting an admission decision, an available bed, or transportation to the program, the youth shall remain, or be placed, in IDP.

(2) A youth pending AMP admission approval must be released from IDP:

(A) not later than the 30th day following the date of the Level I or II hearing; or

(B) the third working day after AMP admission is denied.

(3) If the youth is not released to AMP prior to the 30th day following the date of the youth's Level I or II hearing, the youth will be released to the Behavior Management Program (BMP) or to the general population as outlined in subsection (g)(2) of this rule.

(f) Detention Review Hearings Required For Any Youth Held In An Institution Detention Program.

(1) A youth, who meets admission criteria, may be detained in an IDP for up to 72 hours.

(2) For extensions beyond 72 hours, an initial detention review hearing (Level IV hearing) must be held on or before 72 hours from admission to the IDP, or the next working day.

(3) Subsequent detention review hearings must be held within ten (10) working days from the previous detention review hearing when a due process hearing or trial is not held and continued detention is necessary and appropriate based upon current behavior or circumstances that meet criteria. See §95.59 of this title (relating to Level IV Hearing Procedure).

(4) A detention review hearing is not required for:

(A) youth detained pending transportation as defined in this policy; or

(B) sentenced offenders awaiting a transfer hearing to TDCJ-ID as defined in §85.33 of this title (relating Program Completion and Movement of Sentenced Offenders), if the hearing date is set to take place within a reasonable period of time from the date of detention; or

(C) youth detained pending a decision to admit the youth to, or bed availability in, the AMP.

(5) Institution or a designated community staff will hold the required Level IV detention review hearings. The primary service worker (PSW) for youth not assigned to an institution will coordinate with institution staff to ensure that hearings are timely held or waived properly.

(6) If a Level IV hearing is not timely held or is not properly waived, the youth shall be released from the IDP.

(7) The youth is notified in writing of his/her right to appeal the Level IV hearing.

(g) Release From Institution Detention.

(1) For Youth Not Pending AMP Admission Approval.

(A) Release from IDP is determined by the outcome of a hearing or trial or upon the decision not to hold a hearing.

(B) If the youth is pending transportation, the youth is released from IDP upon transport.

(2) For Youth Pending AMP Admission Approval.

(A) If AMP staff approve admission to AMP, the youth will be released from IDP upon transport.

(B) If the youth is not released to AMP prior to the 30th day following the date of the youth's Level I or II hearing, the youth will be released to BMP pursuant to subsection (f)(2) of §95.17 of this title or to the general population based on the decision of the superintendent or assistant superintendent, if:

(i) a decision is made to admit the youth to AMP pending bed availability, and no beds become available;

(ii) a decision is made not to admit the youth to AMP; or

(iii) if no admission decision is made.

(h) Service Delivery In IDP.

(1) Youth assigned to the IDP will receive all standard security program services as set forth in §97.36 of this title.

(2) Youth pending AMP admission approval shall be provided the following additional services:

(A) a minimum of one 20-minute counseling session per week by the security caseworker;

(B) weekly objectives and goals focused on target-specific behaviors, developed by the security caseworker in consultation with the youth's dorm caseworker; and

(C) weekly meetings with a team consisting of the security caseworker, the youth's dorm program administrator, and a psychologist to discuss the youth's progress towards weekly goals.

(D) weekly mental health status exams by a psychologist.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407486

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301


37 TAC §97.45

The Texas Youth Commission (the commission) adopts an amendment to §97.45, concerning Protective Custody, without changes to the proposed text as published in the November 5, 2004, issue of the Texas Register (29 TexReg 10243).

The justification for amending the section allows for a new reference regarding Standard Security Unit Program requirements to be incorporated in this rule.

The amendment will reference a new §97.36, regarding Standard Security Unit Program requirements, which is simultaneously adopted in this issue of the Texas Register .

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Human Resources Code, §61.034, which provides the commission with the authority to make rules appropriate to the proper accomplishment of its function.

The adopted amendment implements the Human Resources Code, §61.034.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 22, 2004.

TRD-200407487

Dwight Harris

Executive Director

Texas Youth Commission

Effective date: January 21, 2005

Proposal publication date: November 5, 2004

For further information, please call: (512) 424-6301