Subchapter F. PRODUCTION, PROCESSING, AND DISTRIBUTION OF BOTTLED AND VENDED DRINKING WATER

The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts amendments to §§448.603, 448.701 and 448.706 concerning the regulation of training, client bill of rights, and restraint and seclusion in chemical dependency treatment facilities. The amendments to §§448.603 and 448.706 are adopted with changes to the proposed text as published in the March 31, 2006, issue of the Texas Register (31 TexReg 2823). Section 448.701 is adopted without changes and, therefore, will not be republished.

BACKGROUND AND PURPOSE

The rules amendments are necessary to implement legislation by the 79th Legislature, Regular Session, 2005. Specifically, amendments to the Health and Safety Code added Chapter 322 (Senate Bill (SB) 325), and, in particular, Subchapter B, relating to the restraint and seclusion of residents in certain health care facilities. These rules amendments implement statutory requirements relating to chemical dependency treatment facilities, and are required by SB 325 to be adopted by no later than June 1, 2006.

SECTION-BY-SECTION SUMMARY

Amendments to §448.603(d)(5) add requirements to the restraint and/or seclusion training program. Amendments to §448.701(a) clarify the responsibility of treatment facilities to implement and enforce client rights, and add to the rights for which the facility is responsible the right of the client and the client's legally authorized representative to be notified of the rules and policies related to restraints and seclusion. Amendments to §448.706 add to existing regulation of restraint and seclusion a definition of small residential facilities not subject to the new requirement for an observer when a prone or supine hold is used and define practices to promote the safe, limited, and appropriate use of restraint and seclusion in chemical dependency treatment facilities. Amendments were added specifically governing the use of a prone or supine hold; adding restrictions and safeguards relating to interventions and restraints to reduce their frequency and minimize the risk of harm; and requiring certain actions after an episode of restraint or seclusion to help reduce the frequency and increase the safety of any future use of restraint or seclusion. In addition, to avoid conflict with Health and Safety Code, §322.052(c), language requiring the authorization of personal restraint in certain facilities was removed from the rule. While removing the specific requirement that personal restraint be authorized, the amendment should not be read to prevent or discourage those facilities from retaining authorization for the use of personal restraint, if it could be necessary in certain circumstances to protect the safety of clients or others when less restrictive alternatives have been exhausted, and thus to fulfill the facility's duty to maintain a safe environment at all times and under all circumstances.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to oral and written comments received during the comment period regarding the proposed rules amendments, which the commission has reviewed and accepts. The commenters were Phoenix Houses of Texas, Inc., Advocacy, Inc., and Crisis Prevention Institute. The commenters were not against the rules amendments in their entirety; however, the commenters made recommendations for changes as discussed in the summary of comments.

Comment: Concerning §448.603(d)(5), Phoenix Houses of Texas, Inc., commented that few chemical dependency treatment facilities authorize the use of mechanical restraint or seclusion and suggested that, if a training requirement wholly relates to a type of restraint or seclusion which is not authorized by the facility, that training requirement need not be included in the facility's training program.

Response: The commission agrees with the commenter's suggestion. Section 448.603(d)(5) requires the listed training only where restraint or seclusion is used or authorized by the facility, but, in §448.603(d)(5)(D)(v)-(x), (xii) and (xiii), where the requirements are specific to restraint, seclusion, or a particular type of restraint (personal or mechanical), clarifying language has been added to require the training only if that type of restraint or seclusion is used or authorized by the facility. Specifically, in §448.603(d)(5)(D)(v), (vi), (x), (xii), and (xiii), the phrase "if the facility uses or authorizes the use of restraint" has been added after references to "restraint" or "being restrained"; in §448.603(d)(5)(D)(viii), the phrase "if the facility uses or authorizes the use of personal restraint" has been added after a reference to "personal restraint"; in §448.603(d)(5)(D)(vii), (x), (xii) and (xiii), the phrase "if the facility uses or authorizes the use of seclusion" has been added after references to "seclusion"; and, in §448.603(d)(5)(D)(ix), the phrase "if the facility has on premises, authorizes the use of, or uses any mechanical restraint devices" has been added after a reference to "restraint devices."

Comment: Concerning §448.603(d)(5), Crisis Prevention Institute (CPI), Inc., of Brookfield, WI. commented that CPI encourages competency-based testing as a component of training and advocates for re-testing every six to twelve months.

Response: The commission does not agree that testing and re-testing should be mandated. Section 448.603(d)(5) is consistent with Interventions in Mental Health Programs, §415.257, Subchapter F, Staff Training, that requires staff demonstrate competency before assuming job duties and the commission does not believe that it must reach the level of testing and re-testing if the staff are trained and can demonstrate competency as required. No changes were made based on this comment.

Comment: Concerning §448.603(d)(5)(D)(vi), Crisis Prevention Institute (CPI), of Brookfield, WI. suggests including the "risks of ALL restraints" since positional, compression, and restraint asphyxia may occur in positions other than prone or supine. CPI also suggests adding education on all risks of restraints: physical/physiological, psychological/emotional, and social risks.

Response: The commission disagrees with the commenter. The rule does not prohibit staff training that exceeds the minimum requirements. When a facility identifies risks associated with their client population the facility must include those risks into the staff-training program. No changes were made based on this comment.

Comment: Concerning §448.701, Advocacy, Inc., commented that the patient bill of rights notifies the client of the right to be told of the program's rules and regulations but the rule does not state that they will be told. The commenter understands that there are separate enforcement provisions of this right in the rules, in §448.701(a), which provides that the facility shall respect, protect, implement, and enforce each client right required to be contained in the facility's client Bill of Rights, and in §448.802(b), which provides that the facility shall obtain written authorization from the consenter before providing any treatment or medication, including that the consenter received and understood the their patient rights. The commenter continued that the regulations are formatted in such a way that it makes it difficult for public use.

Response: The commission appreciates the comments regarding the patient bill of rights but disagrees with the commenter. Section 448.802(b) not only ensures the client is told of their rights before any treatment is given it requires documentation that client and consenter have received the information and also understood the information. No changes were made based on this comment.

Comment: Concerning §448.706(f)(2), Advocacy, Inc., commented that it believes it is unclear from the language that authorization for mechanical restraint or seclusion still must be by a Qualified Credentialed Counselor (QCC), even though the QCC authorization may be based on the face-to-face evaluation of direct care staff initiating or implementing the procedure. The commenter suggested wording such as "authorization by the QCC for mechanical restraint or seclusion" to begin §448.706(f)(2), rather than simply "authorization for mechanical restraint or seclusion." The commenter also thought that including QCC in the term "direct care staff" authorized to perform the face-to-face evaluation upon which authorization is based fails to give the QCC the preferred role the QCC should have in performing the face-to-face evaluation, when available to do so.

Response: The commission agrees in part and disagrees in part with the commenter, and is making a change in response to the comment. With respect to the commenter's first point, the term "authorization" is used repeatedly in §448.706(f)(1)-(3) without repeating that it refers to authorization by the QCC since §448.706(f) (1)-(3) are already subject to the mandate for QCC authorization stated in §448.706(f). The commission therefore did not make the commenter's suggested change in relation to the first point.

The commission agrees, however, with the commenter's second point and has changed the proposed language for §448.706(f)(2) from "Authorization for mechanical restraint or seclusion shall be based on a face-to-face evaluation by the direct care staff initiating or implementing the procedure" to "Authorization for mechanical restraint or seclusion shall be based on a face-to-face evaluation by the authorizing QCC, if on site or reasonably available, or by the direct care staff initiating or implementing the procedure." The added language, which refers to the "authorizing QCC" also serves to address the commenter's first point by referring to the "authorizing" QCC.

Comment: Concerning §448.706(g), Crisis Prevention Institute (CPI), of Brookfield, WI suggests the release criteria be "as soon as possible when the acting-out individual is no longer an imminent threat of harm to self or others."

Response: The commission disagrees with the commenter. The phrase "as soon as possible" is not definable and release based on criteria defined by the facility serves to protect patients who have been restrained.

Comment: Concerning §448.706(j), Crisis Prevention Institute (CPI), of Brookfield, WI cautions the specific description of a restraint hold, as it may be difficult for an organization to determine if it is approved or not. General restrictions such as a prohibition of a prone restraint are clear and easily understood.

Response: The commission understands the commenter's concerns however, Texas Senate Bill 325, 79th Legislature, Regular Session (2005), codified at Health and Safety Code, Chapter 322, requires the department define acceptable restraint holds. No changes were made based on the comment.

Comment: Concerning §448.706(m), Crisis Prevention Institute (CPI), of Brookfield, WI recommends that this requirement apply to ALL residential facilities.

Response: The commission appreciates the comment, however, Texas Senate Bill 325, 79th Legislature, Regular Session (2005), codified at Health and Safety Code, Chapter 322, carves out an exemption for "small residential facilities" thereby limiting the department's authority to expand this particular requirement to small residential facilities. No changes were made based on this comment.

Comment: Concerning §448.706(r)(2), Crisis Prevention Institute (CPI), of Brookfield, WI recommends continuous monitoring for up to 24 hours following the release of a restraint.

Response: The commission appreciates the comment, yet disagrees with the commenter. Section 448.706(r)(2) is consistent with Interventions in Mental Health Programs in §415.273(a)(2), Subchapter F, which requires staff observe the individual for at least 15 minutes following release from restraint or seclusion. No changes were made related to this comment.

Comment: Concerning §448.706(s), Crisis Prevention Institute (CPI), of Brookfield, WI suggests that all persons involved in a restraint situation be debriefed, including all staff and bystanders.

Response: The commission agrees with the commenter regarding the recommendation that all staff be debriefed and as a result deleted the word "available". The rule was changed from "§448.706(s) As soon as possible after an episode of restraint or seclusion, "available" staff members involved in the episode, supervisory staff, the client, the legally authorized representative, if any, and, with the consent of the client, family members must meet to discuss the episode." to "§448.706(s) As soon as possible after an episode of restraint or seclusion, staff members involved in the episode, supervisory staff, the client, the legally authorized representative, if any, and, with the consent of the client, family members must meet to discuss the episode."

The commission disagrees that bystanders are not already included in the rule regarding who will be debriefed. Section 448.706(s) provides that the one of the purposes of the debriefing is, when clinically indicated or upon the request of individuals who witnessed the restraint to debrief persons who witnessed the restraint.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Cathy Campbell, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

Subchapter F. PERSONNEL PRACTICES AND DEVELOPMENT