Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 67. Auctioneers 16 TAC sec.sec.67.10, 67.20, 67.22, 67.40, 67.70 The Texas Department of Licensing and Regulation adopts new sec.sec.67.10, 67. 22, and 67.70 and amendments to sec.67.20 and sec.67.40, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8375). Section 67.10 defines "recurring basis" for owner's exemption; sec.67.20 adds a time requirement for reporting changes of address; sec.67.22 provides for two free reschedules for exam applicants who request rescheduling before the exam, and for payment of the exam fee if the applicant does not appear; sec.67.40 identifies the license holders from which the pro-rata share to be paid into the education and recovery fund will be due upon renewal; and sec.67. 70 establishes responsibilities of the license holder. The sections provide for more efficient processing of auctioneer license applications and clarifies responsibilities of license holders. No comments were received regarding adoption of the sections. The amendments and new sections are adopted under Texas Civil Statutes, Article 8700, which provide the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules to assure compliance with the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 5, 1993. TRD-9317283 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: January 27, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 463-3127 Chapter 75. Air Conditioning and Refrigeration Contractor License Law 16 TAC sec.sec.75.1, 75.10, 75.20, 75.30, 75.40, 75.50, 75.60, 75. 70, 75.80, 75.90, 75.100 The Texas Department of Licensing and Regulation adopts the repeals of sec.sec.75.1, 75.10, 75.20, 75.30, 75.40, 75.50, 75.60, 75.70, 75.80, 75.90, and 75.100, concerning air conditioning and refrigeration contractors, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7633). The repeals of these sections allow for the adoption of edited, renumbered, and reorganized sections. The sections will function the same. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 8861, which provide the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1993. TRD-9317322 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: January 28, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-3127 16 TAC sec.sec.75.1, 75.10, 75.20-75.25, 75.30, 75.40, 75.60, 75. 70, 75.80, 75.90, 75.91, 75.100 The Texas Department of Licensing and Regulation adopts new sec.sec.75.1, 75. 10, 75.20-75.25, 75.30, 75.40, 75.60, 75.70, 75.80, 75.90, 75.91, and 75.100. Section 75.100 is adopted with changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7633). Sections 75.1, 75.10, 75.20-75.25, 75.30, 75.40, 75.60, 75.70, 75.80, 75.90, and 75.91 are adopted without changes and will not be republished. The new sections, edit, renumber, and reorganize existing rules. Section 75. 100 was changed to reflect the wording of the rule in effect prior to the proposed amendment due to adverse comments received during the hearings. However, it is the intention of the agency to attempt to come to an agreement regarding the differences and publish a new proposed sec.75.100 if an agreement is reached. The sections will primarily function the same. Comments were received on sec.75.100(b) objecting to the addition of a set number of feet within which a disconnect could be installed. Comments were received on sec.75.100(c)(1) and (2) and on sec.75.100(d) in support of proposed changes. Comments were also received on sec.75.100(c)(1) in objection to expanding the scope of allowable fuel piping installation by contractors licensed under Article 8861, on sec.75.100(c)(2) in objection to allowing contractors licensed under Article 8861 to install drain piping associated with equipment covered by Article 8861, and on sec.75.100(d) in objection to requiring air duct cleaners doing certain work on equipment covered by Article 8861 to be licensed under the Act. Groups or associations making comments for the proposed section were Texas Air Conditioning Contractors Association, Dallas Air Conditioning Contractors Association, The Air Conditioning and Refrigeration Contractors Advisory Board, Austin Air Conditioning Contractors Association, and other individuals. Groups or associations making comments against the proposed section were State Board of Plumbing Examiners, Associated Master Plumbers of Harris County, Associated Plumbing-Heating-Cooling Contractors of Texas, Bay Area Municipal Inspectors Association, Wichita County Plumbing & Mechanical Contractors Association, Texas State Association of Plumbing Inspectors, Inc., city plumbing inspectors, and individuals. The agency takes the position that Article 8861 gives licensed air conditioning and refrigeration contractors the right to do certain piping work, and that an exemption in the Plumbing License Law also allows them this right. However, it is the intention of the agency to attempt to come to an agreement with the State Board of Plumbing Examiners on the differences in interpretation of the two statutes and to publish a new proposed section if an agreement is reached. The agency takes the position with respect to the rule for duct cleaners that this trade has expanded into some areas that are clearly within the scope of Article 8861. The new sections are adopted under Texas Civil Statutes, Article 8861, which provide the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purposes of the Act. sec.75.100. Technical Requirements. (a) Boilers. (1) The Texas Boiler Law, the Health and Safety Code, Chapter 755, provides for rules addressing the safe construction, installation, inspection, operating limits, alteration, and repair of boilers and their appurtenances. Those who alter or repair boilers or repair, test, set, or seal safety appliances must possess the applicable American Society of Mechanical Engineers certificate of authorization, National Board of Boiler and Pressure Vessel Inspectors Authorization for use of the "R" or VR Stamp or, in the case of owner/operators, a certificate of authorization issued by the department. These certificate holders are not required to hold a license as an air conditioning and refrigeration contractor. (2) All others who install, maintain, or service boilers used in the process of environmental air conditioning, commercial refrigeration, or process cooling or heating must comply with the Texas Boiler Law, the Health and Safety Code, Chapter 755, and Chapter 65 of this title (relating to Boilers), and shall also hold the applicable class license as an air conditioning and refrigeration contractor. (b) Electrical connections. (1) The new construction of environmental air conditioning, commercial refrigeration, and process cooling or heating systems begins after the first connection on the line side of any listed appliance. (2) Air conditioning and refrigeration contractors licensed under this law may replace and reconnect environmental air conditioning, commercial refrigeration, process cooling or heating systems, or component parts of the same or lesser amperage. On replacement environmental air conditioning, commercial refrigeration, process cooling or heating systems where the electrical disconnect has not been installed and is required by the National Electrical Code, the air conditioning and refrigeration contractor may install a disconnect directly adjacent to or on the replacement system and reconnect the system. (3) Control wiring of 50 volts or less may be installed and serviced by an air conditioning and refrigeration contractor licensed under this law. (4) All component parts may be serviced or replaced by an air conditioning and refrigeration contractor licensed under this law. (5) All electrical work shall be performed in accordance with standards at least as strict as that established by the current National Electrical Code. (c) Piping. (1) Fuel gas piping for new or replaced environmental air conditioning, commercial refrigeration, or process cooling or heating systems may be installed by a contractor licensed under this law. Fuel gas piping by a licensed contractor is limited to the portion of piping between the appliance and the existing piping system, connected at either an existing shut-off valve or an existing opening for such use. Existing piping systems, stops, or shut-off valves shall not be altered by a licensed contractor. (2) Drain piping associated with environmental air conditioning, commercial refrigeration, or process cooling or heating systems may be installed by a contractor licensed under this law. (3) Mechanical piping associated with environmental air conditioning, commercial refrigeration, or process cooling or heating systems shall be installed by a contractor licensed under this law. (d) Duct cleaning. Air duct cleaning may be performed by an unlicensed person or company if the task is limited to the air distribution system, from the discharge of the unit to the inlet of the unit, with no revisions, such as cutting, to the duct, and with no electrical connection. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 7, 1993. TRD-9317323 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: January 28, 1993 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-3127 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 145. Long-Term Care Subchapter G. Licensing and Medical Certification Standards For Nursing Homes 25 TAC sec.145.111 The Texas Department of Health (department) adopts an amendment under federal mandate to sec.145.111, concerning standards for nursing facilities jointly developed by the department and the Texas Department of Human Services (TDHS) that apply to licensure and to Medicaid certification. Specifically, sec.145.111 adopts by reference TDHS rules in 40 TAC, sec.sec.19.1-19.2216. The amendment provides for conformity to federally mandated changes based on final federal OBRA rules, including minor technical wording changes for clarification. The TDHS amendments to sec.sec.19.101, 19.203, 19.208, 19.301, 19.401, 19.602, 19.603, 19.701, 19.1101, 19.1501, and 19.1917 were published in the January 12, 1993, issue of the Texas Register (18 TexReg 198). The amendments to the standards conform with the final federal OBRA rules which became effective April 1, 1992, and a federal Health Care Financing Administration ruling on time limited agreements which became effective August 26, 1992. Since TDHS is the state Medicaid agency for nursing facilities and the department is the state certifying agency for participating Medicaid nursing facilities, both TDHS and the department are required to jointly adopt rules to implement the federal regulations mentioned previously. The amendment is adopted under federal mandate in accordance with the Federal Register, Volume 56, page 48826, 42 Code of Federal Regulations, Part 431, et al, which established new federal Medicaid regulations that the state Medicaid agency (TDHS) and the state certifying agency (department) are required to implement; the Human Resources Code, Chapter 32, which provides TDHS and the department with authority to jointly develop one set of standards for nursing facilities that applies to licensure and certification for participation in the medical assistance program under the Human Resources Code, Chapter 32, and to adopt by rule the standards any amendments to them; the Health and Safety Code, sec.242.037, which provides the Texas Board of Health with authority to adopt rules concerning the licensing of long-term care facilities; and Health and Safety Code, sec.12.001, which provides the Texas Board of Health with authority to adopt rules to implement every duty imposed by law on the board, the department, and the Commissioner of Health. sec.145.111. Standards for Nursing Homes Jointly Developed by the Texas Department of Health and the Texas Department of Human Services That Apply to Licensure and Medicaid Certification. (a) The Texas Department of Health adopts by reference the Texas Department of Human Services rules 40 TAC, sec. sec.19.1-19.2216, concerning Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification effective October 8, 1990, as amended: October 1, 1990, under federal mandate; September 1, 1991; March 17, 1992; April 1, 1992 under federal mandate; March 3, 1992 under federal mandate; April 1, 1992, and August 26, 1992, under federal mandates; February 1, 1993, March 1, 1993; and September 23, 1992 and August 26, 1992 under federal mandates. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9317443 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective dates: August 26, 1992, September 23, 1992 For further information, please call: (512) 834-6770 20 point=13.85p set=13.85p>Part II. Texas Department of Mental Health and Mental Retardation Client (Patient) Care Subchapter H. Behavior Management-Facilities Serving Persons With Mental Retardation 25 TAC sec.sec.405.156-405.169 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.405.156-405.169. Sections 405.158, 405.161-405.164, and 405.166 are adopted with changes to the proposed text as published in the September 29, 1992, issue of the Texas Register (17 TexReg 6669). Sections 405.156, 405.157, 405.159, 405.160, 405.165, and 405.167-405.169 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the adoption of the repeal of existing Chapter 405, Subchapter HH (concerning Restraint and Seclusion in Mental Retardation Facilities). The new subchapter replaces provisions incorporated in existing Chapter 405, Subchapter HH. In addition, the new subchapter incorporates key provisions of existing Chapter 405, Subchapter G (concerning Behavior Therapy Programs) as applicable to mental retardation facilities. Existing Chapter 405, Subchapter G will continue to apply to mental health facilities. A definition of "functional analysis" is added to sec.405.158 to clarify the term as intended in this subchapter. The definition of "protective device used to prevent self-injury" is replaced by the definition of "protective restraint" to clarify the intent. The definition of "personal restraint" is revised to delete "escorting" since simple escorting can be classified as physical guidance or physical prompting, while other forms of escorting would be considered personal restraint. Definitions of "physical guidance" and "physical prompting" have been added. In sec.405.161, it is clarified that all members of the behavior intervention committee should be knowledgeable regarding individual rights. Section 405.162(b) is completely restructured to make comprehension easier. Section 405.162(g), is revised to clarify that any significant increase in the intensity or duration of a highly restrictive procedure, unless specified in the original application, must be approved by the facility behavior intervention committee and the facility's specially constituted committee. Section 405.162(i) is revised to require that review of a program utilizing contingent low level electric shock shall be conducted by a behavior consultant not otherwise affiliated with the facility. Section 405.163(b) is revised to require that written informed consent must be obtained for any behavior intervention program which contains a restriction of the rights of an individual. In addition, it is clarified that in the event the superintendent/director approves a behavior intervention program for an individual, that approval must be obtained on an annual basis for highly restrictive procedures. Throughout sec.405.164, the term "protective device used to prevent self- injury" is deleted and replaced with "protective restraint." In addition, language is added clarifying provisions around the use of protective restraint in an emergency. Reference to the public responsibility committee's charge to investigate alleged violations of this subchapter is deleted from sec.405.166, as the responsibility is understood to be a part of the PRC's duty as outlined in Chapter 410, Subchapter A, relating to public responsibility committees. Comments on the proposed subchapter were received from four organizations, including the ARC/Texas; the ARC/Austin; Advocacy, Inc.; and Dallas County MHMR. All commenters expressed support for the proposed sections, although all offered recommendations for changes. Two commenters expressed support for the use of positive interventions to manage or re-direct behaviors. The commenters noted that behavior intervention programs must always be designed and applied in a humane and caring manner with the ultimate goal of growth and development, and must be based on a formal functional analysis and thorough assessment of each individual's existing competencies and characteristics. The commenters also stressed the value of training and monitoring. The department agrees with the commenters, and inherent in this subchapter is a commitment to ensuring that every behavior intervention program is designed to meet the specific needs of the particular individual in a manner that reflects respect for the individual, concern for the individual's dignity, and enhancement of the individual's development. Several commenters expressed concern with the use of aversive stimulus and recommended that its use be eliminated. The department responds that the use of any systematic behavior intervention conveys a responsibility for careful analysis, design, implementation, and monitoring. Treatment must always be conducted with respect for the individual as the highest priority, which includes a recognition that each individual has the right to the most effective treatment available. Within the framework of this subchapter, humane and effective treatment can be provided. As stated in sec.405.159(c), TXMHMR recognizes and expresses a commitment to the provision of treatment which is the least restrictive and most effective alternative available. Another commenter called for a prohibition on the use of low-level electric shock, and recommended that in the event the department did not assert such a prohibition, the consultant required to review and approve the program not be associated with TXMHMR in any other capacity. The department responds that the requirement that the program be reviewed and approved by a consultant creates an additional safeguard to ensure that such treatment represents the least restrictive and most effective alternative. Language has been added to sec.405. 162(i) requiring that the consultant not be otherwise affiliated with the facility. A commenter recommended that the use of other "highly restrictive procedures" be limited to those circumstances in which the behavior of the individual presents a danger to himself or others. The department responds that, as outlined in sec.405.162(d), a program employing highly restrictive procedures may not be initiated until at least two of three criteria have been met. One of those criteria is that the individual exhibits overt self- injurious behavior or is a danger to others. These criteria are established in order to ensure that the use of a highly restrictive procedure represents the most effective, least restrictive alternative available. Another commenter noted that the subchapter does not seem to distinguish or even consider the accepted realization that some people, including persons with mental retardation, need a therapeutic regime to treat a mental illness. The commenter noted that medications in this category would not fit the expected outline of conditions for behavior intervention programs. The department responds that the proposed rule adopts by reference ICF/MR standards and refers to standards of The Council for Accreditation (ACDD), and the subchapter as written requires that these procedures be implemented when medications are utilized for behavior management in keeping with the requirements of the applicable standards. A commenter stated that approximately half of the individuals living in state schools have been committed via a court process and have no legal guardian, advocate, or interested friend. The commenter noted that there is no one who serves in an advisory capacity (legal or otherwise) to the person who can receive input from the treatment team, evaluate the team's recommendations, and provide informed consent. The commenter expressed concern about the superintendent/director approving highly restrictive procedures for individuals in the absence of a parent of a minor child or legal guardian, and expressed concern about the objectivity of the members of the behavior intervention and specially constituted committees, which are appointed by the superintendent/director. The commenter asks, "Who represents the interests of the resident?" The department responds that everyone associated with the individual's care places the interests of the resident foremost. The members of the specially constituted committee include persons served, family members, and other outside representatives. By requiring that any highly restrictive procedure be routed through both the specially constituted committee and the behavior intervention committee, the department has established a number of checks and balances designed to safeguard the rights of each individual to the greatest extent possible. Regarding sec.405.161, two commenters requested that an independent advocate always serve as a member of the behavior intervention committee. The department responds that an independent advocate is included as a member of the specially constituted committee (required by ICF/MR regulations and this rule), which is specifically charged with the oversight of rights protection efforts. This committee is also required to review and approve programs utilizing highly restrictive procedures, and the independent advocate's input is better utilized in this capacity. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.158. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Applied behavior analysis-The systematic application of scientific principles of behavior to improve socially significant behavior to a meaningful degree and to demonstrate empirically that the procedures employed were responsible for the improvement in behavior. Behavior intervention -Systematic efforts to increase adaptive behaviors and to modify maladaptive or problem behaviors and replace them with behaviors that are adaptive and socially acceptable. Behavior intervention program-A written program prescribing the systematic application of behavioral techniques with regard to an individual and which contains: (A) clear specifications of behavioral objectives; (B) reliable and representative baseline data; (C) a functional analysis of the events which contribute to or maintain the targeted behaviors; (D) detailed procedures for implementing the program; (E) methods for evaluating program effectiveness; and (F) procedures for making necessary program revisions. Behavior management -All efforts to increase socially adaptive behavior and to modify maladaptive or problem behaviors and replace them with behaviors and skills that are adaptive and socially productive. This broad category includes behavior interventions, emergency procedures used to protect an individual or other persons due to the actions of that individual, and both formal and informal planned interactions intended to increase socially adaptive behavior and/or to modify maladaptive or problem behaviors. Behavioral services by the superintendent to chair the facility behavior intervention committee, consult with program directors, and coordinate activities of the facility behavior intervention committee. The behavioral services director shall: (A) be knowledgeable in the specifics of behavior management principles and theory; (B) be qualified to evaluate published behavior management research studies; and (C) have had applied experience with behavior management techniques. Emergency physical restraint-The application of any physical device, or the application of physical resistance by another person, to the body of an individual in such a way as to limit or control the physical activity of the individual, or to restrict the movement or normal functioning of a portion of an individual's body in those situations in which there is imminent probability of harm to the individual or others and when those behaviors reasonably could not have been anticipated. Functional analysis -A formal assessment of both antecedents and consequences that maintain problem behavior. Data may be collected utilizing a wide variety of techniques, including interview, observation, and analogue manipulation. Highly restrictive procedures-The use of drugs for behavior management, application of aversive stimuli, exclusionary time-out, physical restraint, or a requirement to engage in an effortful task or other techniques with similar degrees of restriction or intrusion to manage maladaptive behavior. (A) Application of aversive stimuli-Application of any stimulus which may be unpleasant or noxious, startling, or painful such that its intended effect is the suppression of the specific behavior upon which it is immediately contingent. For purposes of these rules, such stimuli include olfactory, auditory, gustatory, tactile, and other stimuli which may result in physical discomfort or pain. Included in this category is low-level electric shock applied to the extremities (legs or arms) contingent on behavior dangerous to self or others. (B) Contingent restraint-An intervention within a behavior intervention program involving the systematic application of any physical device, or the application of physical resistance by another person, to the body of an individual in such a way as to limit or control the physical activity of the individual following a previously identified response targeted for reduction or elimination. (C) Drugs for behavior management-Refers to medications prescribed and administered for the purpose of modifying the maladaptive behavior of an individual. (D) Effortful task-A task requiring physical effort by an individual following an undesirable response and in which the completion of the task is directed and may be manually guided by staff. Examples of effortful tasks include, but are not limited to: (i) Required exercise-A procedure in which an individual performs and may be guided by staff to perform a series of physical movements which are incompatible with the undesirable response which they systematically follow. An example would be the guided movement of a self-abusive individual's arms through a series of positions away from the body. (ii) Negative practice-A procedure in which an individual is required to repeatedly engage in an effortful task which is topographically similar to the undesirable response which 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 striking behavior. (iii) Restitutional overcorrection -A procedure in which an individual is required to correct the consequences of a disruptive response by performing a task which 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 in which an individual is required to repeatedly engage in an appropriate behavior related to the function of the undesirable response which 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 inappropriate social response. (E) Exclusionary time-out-A procedure by which an individual is placed alone in an enclosed area in accordance with an approved systematic behavior intervention program contingent upon the exhibition of a maladaptive behavior, in which positive reinforcement is not available and from which egress is denied, including prevention by staff, until appropriate behavior is exhibited. (F) Protective restraint-The use of any physical or mechanical device to limit or prevent severe self-injurious behavior that if left uncontrolled could result in serious tissue damage, medical complications, or death (e.g., life- threatening pica, self-mutilative biting). Individual-Any person admitted to and receiving the campus-based services of a facility serving persons with mental retardation. Informed consent -The knowing consent of an individual or his legally authorized representative, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion. The basic elements of information necessary for informed consent include: (A) a thorough explanation of the procedures to be followed, and their purposes, including identification of any procedures which are experimental; (B) a description of any attendant discomforts and risks reasonably to be expected; (C) a description of any benefits reasonably to be expected; (D) a disclosure of any appropriate alternative procedures; (E) an offer to answer any inquiries concerning the procedures; and (F) an instruction that the person is free to withdraw his consent and to discontinue participation in the project or activity at any time without prejudice to the individual. Mechanical restraint -The application of a physical device to restrict the movement of the whole or a portion of an individual's body except as part of a routine medical or dental procedure and for bodily support and positioning. Personal restraint -The application of physical pressure to the body of an individual in such a way as to restrict the movement of the whole or a portion of the body except as part of a routine medical or dental procedure. Excluded also are physical guidance and prompting procedures. Physical guidance -The guidance of the performance of a behavior using constant and continuous physical contact (also called manual guidance). Physical prompting -A form of minimal physical contact that is presented to cue the performance of a particular behavior. Physical restraint -The use of personal or mechanical restraint to restrict the movement or routine functioning of a portion of an individual's body. Physical restraint includes contingent restraint, protective restraint, and emergency restraint as defined herein. Specially Constituted Committee-A committee designated by the facility and operating in accordance with ICF/MR regulations (42 Code of Federal Regulations, sec.483.440(f)(3)(i)-(iii)). sec.405.161. Facility Behavioral Services Director; Facility Behavior Intervention Committee. (a) The superintendent/director of each facility shall appoint a facility behavioral services director. (b) A behavior intervention committee, consisting of a minimum of three members, shall be established at each facility. (1) The members of the committee shall be appointed by and serve at the pleasure of the superintendent/director of the facility. (2) The behavioral services director shall be a member and serve as chairperson of the committee. (3) The majority of the members shall have the technical skills and knowledge of applied behavior analysis necessary to evaluate the adequacy of proposed behavior intervention programs. (4) All members shall be knowledgeable regarding individual rights. (c) The behavior intervention committee shall: (1) establish and review policies and procedures related to the use of behavior management throughout the facility; (2) review and approve behavior intervention programs conducted in the facility; (3) participate in the establishment of guidelines for the evaluation of all facility programs utilizing behavior intervention techniques; and (4) ensure the technical adequacy of behavior intervention programs. sec.405.162. Initiation and Approval of Behavior Intervention Programs. (a) A behavior intervention program may not be initiated until the behavior intervention committee has reviewed and approved the program. (b) An assessment or functional analysis which involves the direct, systematic manipulation of environmental variables and which includes the evaluation of a highly restrictive procedure or which would pose a significant risk of injury to the individual or others (for example, cases of severe self-injury or aggression) may not be initiated until: (1) a written protocol for the evaluation has been developed, including: (A) the specific procedures or environmental variables to be manipulated; and (B) the specific length of time required for each phase of the evaluation; and (2) the protocol has been approved by: (A) the interdisciplinary team; (B) the facility behavioral services director; (C) the chair of the facility's specially constituted committee; and (D) the legally authorized representative of the individual as specified in sec.405.163 of this title (relating to Informed Consent). (c) A behavior intervention program involving restriction of the rights of an individual or which contains a highly restrictive procedure may not be initiated until a specially constituted committee has reviewed and approved the program. (d) A program employing highly restrictive procedures may not be initiated until less restrictive behavior intervention programs not employing highly restrictive procedures have been systematically attempted and failed to remove the problem behavior or behaviors and one of the two following criteria have been met: (1) the individual exhibits overt self-injurious behavior or is a danger to others; (2) the individual's behavior problems are so severe or their duration is so extensive that other therapeutic approaches are currently precluded or are ineffective. (e) A program employing highly restrictive procedures may not be initiated until a procedure for differentially reinforcing behaviors in such a way as to reduce or eliminate the undesirable response(s) is designed and simultaneously implemented with the program utilizing highly restrictive procedures. (f) Prior to implementation of a highly restrictive procedure, medical authorization by a licensed physician shall be placed in the record of each individual who is to participate in a behavior intervention program utilizing highly restrictive procedures stating that no medical contraindications exist for the utilization of the highly restrictive procedures specified within the program with regard to the particular individual for whom they are to be utilized. (g) Any significant increase in the intensity or duration of a highly restrictive procedure, unless specified in the original application (i.e., in the case of changes specified as a part of a plan of titration specified and approved in a plan including the use of drugs for behavior management), shall be approved by the facility behavior intervention committee and the facility's specially constituted committee and shall have medical authorization by a licensed physician. (h) Except for physical restraint and drugs for behavior management as specified in ICF/MR regulations, highly restrictive procedures shall not be utilized on an emergency basis. (i) Prior to implementation, any program utilizing contingent low level electric shock shall be reviewed and approved by a behavior consultant with expertise in the use of such procedures. This consultant shall not be an employee of TXMHMR and shall be authorized by the deputy commissioner for mental retardation services. sec.405.163. Informed Consent. (a) Written informed consent shall be obtained for any program involving medications for behavior management. (b) Written informed consent for any behavior intervention program which contains restriction of the rights of an individual or a highly restrictive procedure shall be obtained as follows. (1) If the individual has been admitted voluntarily and is 18 years of age or older, written informed consent shall be obtained from: (A) the individual, if legally competent to give such consent; or (B) the guardian of the person of the individual if the individual has been adjudicated incompetent by a court of competent jurisdiction. (2) If the individual has been admitted voluntarily under the Texas Health and Safety Code, Title 7, Subtitle D, and is under 18 years of age, written informed consent shall be obtained from the parent, managing conservator, or guardian of the person of the individual. (c) If the individual is not factually competent to give informed consent, and no guardian of the person has been established or all efforts to locate the responsible parent of a child under age 18 or guardian of the person have failed: (1) the facility behavior intervention committee and facility specially constituted committee shall confirm the need for and the probable desirable consequences of the program; and (2) the superintendent/director shall approve the program in writing. (d) Staff should be aware that informed consent can be withdrawn at any time. If informed consent is withdrawn, the program shall be discontinued. For all programs requiring informed consent, staff shall document that the right to withdraw such consent was communicated to the relevant party. (e) Written informed consent/approval shall be obtained on an annual basis for highly restrictive procedures. sec.405.164. Use of Physical Restraint; Use of Protective Restraint; Use of Mechanical Restraint. (a) Physical restraint shall only be used in a manner consistent with appropriate ICF/MR standards. (b) All reasonable steps shall be taken to ensure safety and dignity of individuals in all instances of restraint. (c) Only departmentally approved techniques shall be utilized during personal restraint. (d) The facility must develop written policy regarding the monitoring of emergency physical restraint which specifies any necessary action the interdisciplinary team must take to address the repeated use of emergency restraint. (e) Protective restraint may be used with authorization as an emergency measure in accordance with relevant accreditation standards or as a long-term intervention if used as a part of an approved behavior intervention program. (1) Prior to the use of the protective restraint, the interdisciplinary team must verify and document that a failure to utilize the protective device would place the individual in a clear position of imminent and significant harm, which could not be prevented by any other, less restrictive means. (2) The use of protective restraint within a behavior intervention program shall include a plan designed to systematically decrease and eliminate the need for the protective restraint and shall specify times at which the individual will be released from the restraint device. (f) Only appropriate mechanical restraints shall be utilized. The appropriateness of a mechanical restraint shall be determined as follows. (1) Mechanical restraints included in the document, "Acceptable Mechanical Restraints," which is referenced in sec.405.167 of this title (relating to Exhibits) as Exhibit A, are considered appropriate for systemwide use. Use of mechanical restraints listed in the document, "Unacceptable Mechanical Restraints," which is referenced in sec.405.167 of this title as Exhibit B, is prohibited. (2) Mechanical restraints not prohibited by "Unacceptable Mechanical Restraints," but which are not included in the list of "Acceptable Mechanical Restraints" may be utilized after being reviewed and approved by: (A) the interdisciplinary team; (B) the facility behavioral services director; (C) the chair of the facility's specially constituted committee; and (D) the facility superintendent/director or designee. (3) A complete description of any devices or techniques approved by the facility for use which are not included in the document "Acceptable Mechanical Restraints" shall be forwarded within 10 days of the facility approval to the deputy commissioner for mental retardation services for review. sec.405.166. Enforcement. (a) The facility superintendent/director shall be responsible for the enforcement of this rule. (b) Violation of this rule shall constitute grounds for appropriate disciplinary personnel action. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 11, 1993. TRD-9317448 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 1, 1993 Proposal publication date: September 29, 1992 For further information, please call: (512) 465-4670 Subchapter HH. Restraint and Seclusion in Mental Retardation Facilities 25 TAC sec.sec.405.841-405.849 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.841-405.849, concerning restraint and seclusion in mental retardation facilities, without changes to the proposed text as published in the September 29, 1992, issue of the Texas Register (17 TexReg 6673). The repeal of the sections is adopted contemporaneously with the adoption of the subchapter which replaces them, Chapter 405, Subchapter H, concerning behavior management-facilities serving persons with mental retardation, also in this issue of the Texas Register. The new subchapter adopts by reference applicable standards (ICF/MR and The Council for Accreditation) for behavior management. The subchapter expresses a commitment to the provision of treatment which is the least restrictive and most effective alternative, and includes provisions for continued improvement of behavioral services within facilities serving persons with mental retardation. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.2. 11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 11, 1992. TRD-9317449 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: February 1, 1993 Proposal publication date: September 29, 1992 For further information, please call: (512) 465-4516 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 12. Special Nutrition Programs Child and Adult Care Food Program 40 TAC sec.sec.12.3, 12.6, 12.14, 12.15, 12.24, 12.25 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.12.3, 12.6, 12.14, 12.15, 12.24, and 12.25, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8278). The justification for the amendments is to eliminate obsolete rules and to clarify existing rules to ensure consistency in the application of program policy. The amendments will function by providing a more accurate reflection of current policy. The department received one comment supporting the proposed change to sec.12. 15(e). Southwest Human Development Services, Inc., supports the deletion of sec.12.15(e) because it is no longer a federal requirement and it has clear fiscal implications for the citizens of Texas. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1993. TRD-9317424 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part II. Texas Turnpike Authority Chapter 54. Policies, Rules, Guidelines and Procedures for Private Involvement in TTA Projects 43 TAC sec.54.1, sec.54.2 The Texas Turnpike Authority (TTA) adopts new sec.54.1 and sec.54.2 concerning policies, rules, guidelines, and procedures for private involvement in TTA projects, without changes to the proposed text as published in the September 18, 1992, issue of the Texas Register (17 TexReg 6435). The new sections will enable the delineation of rules and guidelines governing private participation in TTA projects. The new sections enable TTA to initiate private participation in TTA projects or to review proposals from private entities. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 6674v, sec.20a, which provide the Texas Turnpike Authority with the authority to negotiate with and enter into contracts with entities regarding private participation in TTA projects, and to promulgate these rules, procedures, and guidelines for such purposes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Dallas, Texas, on January 6, 1993. TRD-9317430 John B. Ramming Executive Director Texas Turnpike Authority Effective date: February 1, 1993 Proposal publication date: September 18, 1992 For further information, please call: (214) 522-6200