Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Chapter 141.
GENERAL PROVISIONS
40 TAC §§141.51 - 141.55
The Texas Commission on Alcohol and Drug Abuse adopts new
sections §§141.51-141.55 concerning General Provisions without changes
to the proposed text as published in the March 3, 2000 issue of the
These sections contain information regarding notice of a claim, agency
counterclaim, timetable for negotiations and contested case hearings, conduct
of negotiations and mediation.
These new sections are adopted to establish a process for negotiating and
mediating certain contract disputes as required in Chapter 2260 of the Government
Code. These sections describe the process and timetable for filing a claim
of breach of contract; explain the steps involved if the commission files
a counterclaim; establish time limits for negotiations and contested case
hearings; specify the steps that must be taken prior to a contested case hearing;
spell out the circumstances under which a case may be submitted to the State
Office of Administrative Hearings; describe how negotiations may be conducted;
stipulate that mediation is an alternative and explain how that process will
be conducted.
No comments were received regarding the adoption of these new sections.
The new sections are adopted under the Texas Health and Safety
Code, Title 6, Subtitle B, §461.012(a)(15) which provides the Texas Commission
on Alcohol and Drug Abuse with the authority to adopt rules governing the
functions of the commission, including rules that prescribe the policies and
procedures followed by the commission in administering any commission programs.
The code affected by the adopted rules is the Texas Health and Safety Code,
Chapter 461.
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 May 24, 2000.
TRD-200003687
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: June 13, 2000
Proposal publication date: March 3, 2000
For further information, please call: (512) 349-6794
Chapter 254.
OPERATION OF THE TEXAS DEPARTMENT ON AGING
40 TAC §254.25
The Texas Department on Aging adopts the repeal of the existing §254.25
relating to Department Responsibilities for Carryover of Unexpended Department
Awarded Funds, without changes to the proposed text as published in the March
24, 2000, issue of the
Texas Register
(25
TexReg 2556) and will not be republished. The Department feels the relevant
issues described in this section are adequately covered in other rules of
the Agency.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003739
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 24, 2000
For further information, please call: (512) 424-6857
The Texas Department on Aging adopts the repeal of the existing §260.1
and adopts a new §260.1 relating to Area Agency on Aging Administrative
Responsibilities. The repeal of §260.1 is adopted without changes to
the proposed text as published in the March 17, 2000, issue of the
Texas Register
(25 TexReg 2323) and will not be republished. New §260.1
is adopted with changes to the proposed text as published in the March 17,
2000, issue of the
Texas Register
(25 TexReg
2323). The change is for clarification in subsection (h)(3). The purpose of
this new rule is to ensure Area Agencies on Aging have the information and
direction necessary to fulfill the obligations of their contracts with the
Texas Department on Aging. This knowledge will ensure proper administrative
oversight of the programs funded through the Older Americans Act and the State
of Texas for the benefit of older persons in Texas.
The adopted new section outlines the responsibilities of contractors for
the administration of an Area Agency on Aging. The new rule as adopted includes
subjects relating to the required structure of an Area Agency on Aging, the
requirements for proper program accountability, guidance for the review of
providers, instructions regarding record maintenance and retention, directions
for improving the visibility of the Area Agency on Aging and the Texas Department
on Aging, and other pertinent program requirements.
The Texas Department on Aging staff recommended to the Board on Aging the
addition of a requirement to recognize the Department as a primary funding
source in all electronic media advertising and information, including but
not limited to, television, radio, and the internet, including all web pages.
This is accomplished by using the phrase, whether written or spoken, "Funded
by the Texas Department on Aging." This addition will be an expansion of subsection
(i) of this rule. No comments regarding this proposed addition were made during
this review period.
Subsection (e)(2) of this adopted new section requires records to be maintained
for a minimum period of five years following the end of the federal fiscal
year to which the record pertains. This period appears to be in excess of
that required under the Uniform Grant Management Standards. The beginning
of the period required by the Uniform Grant Management Standards varies depending
upon when the final program reports are filed by the Texas Department on Aging
for a program year with the federal government. The five year period required
in subsection (e)(2) will adequately cover the maximum length of time that
would be required for records retention in the event the final federal filing
is made at the last available date. This will eliminate the need for the Texas
Department on Aging to notify all Area Agencies on Aging of when the retention
period begins for each program year.
No comments were received regarding adoption of the repeal and new rule.
40 TAC §260.1
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003740
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The new section is adopted under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
§260.1.Area Agency on Aging Administrative Responsibilities.
(a)
Purpose. This chapter establishes the responsibilities
of the area agency on aging in developing and maintaining an organized and
efficient system of administration that demonstrates accountability and compliance
with all terms and conditions of the contract.
(b)
Structure.
(1)
Organizational Structure. The organizational structure
of the area agency on aging shall be reflected through job descriptions, staffing
plans and organizational charts which demonstrate its ability to effectively
administer OAA programs and other programs funded by the Department.
(2)
Titles. Each individual selected to perform the duties
of the director shall be identified on the staffing pattern and in job descriptions
as either director, area agency on aging, or as manager, area agency on aging.
(3)
Staff Resources. All positions shall be budgeted based
on the projected percentage of time to be spent performing the duties of an
identified service(s), and documentation will be maintained to support the
actual time spent performing the duties of an identified service(s).
(4)
Conflicts of Interest. An area agency on aging, its
employees, volunteers working within programs of the area agency on aging,
its advisory board/committee members and its governing boards shall seek to
avoid conflicts-of-interest, in fact and perception, and provide proper notification
when potential conflicts-of-interest do occur. Subtitle C, Chapter 171, Local
Government Code shall apply to those persons and entities covered under that
title for all purposes.
(A)
An area agency on aging shall ensure no current employee,
current board member, aging advisory committee member nor representative of
the office of the state long-term care ombudsman, paid or volunteer, holds
a substantial financial interest, directly or indirectly, in the profits of
any entity from which services or goods are contracted or otherwise procured
by the area agency on aging or any long-term care facility, nor derives personal
profit, directly or indirectly, from any entity which would conflict in any
manner or degree with the performance of responsibilities of the employee,
board member, advisory committee member or any representative of the office
of state long-term care ombudsman, paid or volunteer.
(B)
No current employee, current board member or aging advisory
committee member, unless covered under Subtitle C, Chapter 171, Local Government
Code, who exercises any functions or responsibilities in the review or award
of any contract or the procurement of services or goods on behalf of the area
agency on aging, shall:
(i)
participate in any decision relating to the contract or
procurement of services or goods in which he/she has a direct or indirect
substantial personal financial interest; or
(ii)
have a substantial financial interest, directly or indirectly,
in the contract or procurement of services or goods or the proceeds thereof.
(C)
No representative of the office of the state long-term
care ombudsman, paid or volunteer, directly or indirectly, shall:
(i)
have direct involvement in the licensing or certification
of a long-term care facility or of a provider of a long-term care service;
(ii)
have a family member residing in a long-term care facility
to which the representative is assigned or provides advocacy;
(iii)
have ownership or direct investment interest in a long-term
care service;
(iv)
be employed by or participate in the management of a long-term
care facility; or
(v)
receive or have the right to receive, directly or indirectly,
remuneration under a compensation arrangement with an owner or operator of
a long-term care facility.
(D)
Area agencies on aging shall include a requirement in all
Requests for Proposal (RFP) for services to the elderly and requests for vendor
enrollment that any potential conflicts-of-interest be identified in the RFP
response. The notification of potential conflicts-of-interest shall include:
(i)
the person for which a potential conflict-of-interest exists;
(ii)
the relationship to any current or former board member,
current or former aging advisory committee member, or current or former employee;
and
(iii)
the nature of the potential conflict-of-interest.
(E)
The person for whom the potential conflict-of-interest
exists shall certify that he/she will abide by all rules established in this
subsection.
(c)
Accountability.
(1)
The area agency on aging shall meet programmatic and fiscal
performance targets (units, persons, unit cost) as outlined in the approved
budget, as amended, within a five percent variance allowed for units and persons.
(2)
The area agency on aging shall submit fiscal and programmatic
reports required by the Department in a timely, complete and accurate manner.
(3)
Extensions may be negotiated for reports by Department
contract managers according to the circumstances for the request.
(4)
All requests for extension must be made in writing
or through electronic notification to the Program and Fiscal Accountability's
Help Desk and requested on or before the due date of the report for which
a request is made.
(5)
The Department may grant up to two requests for extension
per report. An area agency on aging may be granted no more than six extensions
per federal fiscal year.
(6)
The area agency on aging shall comply with the terms
of all applicable interagency agreements, including, but not limited to, those
agreements that are legislatively mandated or entered into by the Department
on behalf of area agencies on aging.
(d)
Provider Review.
(1)
An area agency on aging shall conduct reviews of provider
program and fiscal activities on a regular and systematic basis. Reviews shall
be conducted through a desk audit and on-site review. A risk assessment will
be conducted annually to determine the necessity of an on-site review.
(2)
The area agency on aging shall conduct a risk assessment
and on-site review utilizing programmatic and fiscal monitoring work papers
developed and furnished by the Department.
(3)
The area agency on aging shall measure customer satisfaction
through an annual customer satisfaction survey sample of program participants/clients.
(4)
The area agency on aging will develop and follow policies
and procedures for imposing penalties and/or sanctions upon contractors/subcontractors
for non-performance of the contract agreement or non-compliance with service
delivery requirements.
(e)
Records. The area agency on aging must provide for the
development, maintenance, and retention of records in accordance with the
Uniform Grant Management Standards, Subpart C and as follows:
(1)
establish written procedures to adequately assure proper
development, maintenance and retention of all financial records, supporting
documents, statistical records and all other records relating to its performance;
(2)
maintain all records for a minimum of five years following
the end of the federal fiscal year to which the record pertains and until
any pending litigation, claim or audit findings, issuance or proposed disallowed
costs or other disputes have been resolved. A multi-site area agency on aging
may maintain all records at a designated central location;
(3)
give the Department, the Comptroller General of the
United States and the State of Texas through any authorized representatives,
the access to and right to examine all records, books, papers, contracts,
client records, unless specifically prohibited by law, or other documents
related to Department funded programs. Such examination may require access
to papers, billings, vouchers or other documents not directly related to the
area agency on aging if the purpose of such access is to review charges to
any indirect costs pool. Such right of access shall continue as long as such
records are in existence.
(4)
the area agency on aging shall require that subcontractors/service
providers adhere to paragraphs (1), (2) and (3) of this subsection, as applicable.
It is not required that subcontractors/service providers' records be kept
at the area agency on aging.
(f)
Targeting.
(1)
Area agencies on aging shall target service delivery in
accordance with the OAA, as amended.
(2)
The area agency on aging shall require that subcontractors/service
providers adhere to paragraph (1) of this subsection.
(g)
Visibility.
(1)
Each area agency on aging shall use the logo designed by
the Department to assure that a uniform, statewide symbol for area agencies
on aging designation for public information purposes is employed.
(2)
The logo below shall be used whenever an area agency
on aging develops printed material.
Figure: 40 TAC §260.1(g)(2)
(h)
Uniform Telephone Listings.
(1)
The telephone number of each area agency on aging, the
area agency on aging's information and assistance toll-free number and the
area agency on aging's nursing home ombudsman toll-free number shall appear
in each telephone directory published by the provider of local telephone service
for residents in any geographical area that lies in whole or in part in the
planning and service area served by the area agency on aging.
(2)
The listings shall appear in the unclassified sections
and government sections of the phone book. If the area agency on aging serves
a major metropolitan area, it shall list its toll-free number(s) in the classified
section of the telephone directory(ies).
(3)
The listing shall begin with the words "Area Agency
on Aging," and shall include the host agency, as applicable, and the phone
shall be answered "Area Agency on Aging" when the call is received in the
area agency on aging.
(i)
The area agency on aging shall cite the Texas Department
on Aging as its primary funding source using the phrase, "Funded by the Texas
Department on Aging" on all printed material.
(j)
Identification of Area Agency on Aging Facilities. A sign
will be predominantly displayed outside the location used as the Area Agency
on Aging.
(1)
This sign will adhere to local ordinances concerning signs.
(2)
The sign will conform to the uniform logo requirements
identified in this chapter.
(k)
Emergency Management.
(1)
When a disaster occurs, the area agency on aging will notify
the Department of its need to provide for emergency management activities,
provide information to the Department regarding the impact of the disaster
on the elderly population in its service area, provide emergency management
services in accordance with current AoA disaster relief guidelines and collect
pertinent data necessary to submit reimbursement requests for disaster services.
(2)
The area agency on aging shall consult with the appropriate
agencies that have an interest or role in meeting the needs of the elderly
in planning for, during, and after natural, civil defense and/or man-made
disasters. To accomplish this, the area agencies on aging shall:
(A)
appoint an emergency management coordinator;
(B)
participate in planning activities with other entities
and organizations that are charged to meet the needs of disaster victims in
emergency situations, as appropriate;
(C)
require by contract stipulation that service providers
develop plans for emergency management; and
(D)
provide technical assistance as necessary to subcontractor/service
provider staff regarding emergency management activities.
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 May 26, 2000.
TRD-200003741
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The Texas Department on Aging adopts the repeal of the existing §260.2
and adopts a new §260.2 relating to Area Agency on Aging Fiscal Responsibilities,
without changes to the proposed text as published in the March 17, 2000, issue
of the
Texas Register
(25 TexReg 2326) and
will not be republished. The purpose of this new rule is to ensure Area Agencies
on Aging have the information and direction necessary to fulfill the obligations
of their contracts with the Texas Department on Aging. This knowledge will
ensure proper fiscal administration and oversight of the programs funded through
the Older Americans Act and the State of Texas for the benefit of older persons
in Texas.
The adopted new section outlines the fiscal responsibilities of contractors
for the financial administration of an Area Agency on Aging. The new rule
as adopted includes subjects relating to purchasing, audit requirements, the
development and approval of an indirect costs allocation plan, contract certifications,
budget submissions, contracting, funding match requirements, and other pertinent
fiscal requirements.
No comments were received regarding adoption of the repeal and new rule.
40 TAC §260.2
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003742
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The new section is adopted under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
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 May 26, 2000.
TRD-200003743
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The Texas Department on Aging adopts the repeal of the existing §260.15
relating to Responsibilities of Contractor for Carryover of Unexpended Older
Americans Act Funds and Any Other Unexpended Funds Issued by the Department,
and adopts a new §260.15 relating to Criteria for Administering Carryover
of Unexpended Funds, without changes to the proposed text as published in
the March 17, 2000, issue of the
Texas Register
(25 TexReg 2329) and will not be republished. The purpose of this new rule
is to ensure Area Agencies on Aging have the information and direction necessary
to fulfill the obligations of their contracts with the Texas Department on
Aging. Additionally, the Area Agencies on Aging will understand the requirements
for obtaining second year spending authority for unexpended funds of a program
year. This knowledge will ensure proper administrative oversight of the funds
provided through the Older Americans Act and the State of Texas for the benefit
of older persons in Texas.
The adopted new section outlines the criteria to be met in order to receive
unexpended funds from one year with authority for expenditure in a second
program year. Additionally, the adopted new section describes the process
for establishing a carryover funding pool and the requirements to be met for
participation in the distribution of the funds in the pool.
No comments were received regarding adoption of the repeal and new rule.
40 TAC §260.15
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003744
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The new section is adopted under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
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 May 26, 2000.
TRD-200003745
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The Texas Department on Aging adopts the repeal of the existing §260.17
and adopts a new §260.17 relating to Approval of Direct Services Applications
from Area Agencies on Aging, without changes to the proposed text as published
in the March 17, 2000, issue of the
Texas Register
(25 TexReg 2330) and will not be republished. The purpose of this
new rule is to ensure Area Agencies on Aging have the information and direction
necessary to fulfill the obligations of their contracts with the Texas Department
on Aging. This knowledge will ensure proper administrative oversight of the
programs funded through the Older Americans Act and the State of Texas for
the benefit of older persons in Texas.
The adopted new section outlines the necessary criteria for receiving approval
to provide direct services to the elderly of Texas. The new rule as adopted
includes subjects relating to the conditions required to make a request for
direct service provision, services exempted from a waiver request, the waiver
process, and other pertinent program requirements.
No comments were received regarding adoption of the repeal and new rule.
40 TAC §260.17
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003746
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The new section is adopted under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
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 May 26, 2000.
TRD-200003747
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The Texas Department on Aging adopts the repeal of the existing §260.19
and adopts a new §260.19 relating to Direct Purchase of Service (DPS),
without changes to the proposed text as published in the March 17, 2000, issue
of the
Texas Register
(25 TexReg 2332) and
will not be republished. The purpose of this new rule is to ensure Area Agencies
on Aging have the information and direction necessary to fulfill the obligations
of their contracts with the Texas Department on Aging. This knowledge will
ensure proper administrative oversight of the programs funded through the
Older Americans Act and the State of Texas for the benefit of older persons
in Texas.
The adopted new section outlines the responsibilities of contractors when
using the Direct Purchase of Service procurement methodology as they administer
the programs under the Older Americans Act. The new rule as adopted includes
subjects relating to when the DPS procurement method can be used, the DPS
system structure, provider monitoring, and other pertinent program requirements.
No comments were received regarding adoption of the repeal and new rule.
40 TAC §260.19
The repeal is adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
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 May 26, 2000.
TRD-200003748
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
The new section is adopted under Texas
Human Resources Code §101.021, which provides the Texas Department on
Aging with the authority to promulgate rules governing the operation of the
Department.
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 May 26, 2000.
TRD-200003749
Gary Jessee
Program Specialist
Texas Department on Aging
Effective date: June 15, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 424-6857
Chapter 720.
24-HOUR CARE LICENSING
Subchapter O. GENERAL POLICIES AND PROCEDURES
40 TAC §§720.1001 - 720.1013
The Texas Department of Protective and Regulatory Services
(TDPRS) adopts new §§720.1001-720.1013, in its 24- Hour Care Licensing
chapter. New §§720.1001, 720.1003-720.1008, 720.1011-720.1013 are
adopted with changes to the proposed text published in the February 11, 2000,
issue of the
Texas Register
(25 TexReg 1061).
New §§720.1002, 720.1009, and 720.1010 are adopted without changes
to the proposed text and will not be republished. The new sections are adopted
in Subchapter O, General Policies and Procedures.
Section 720.1001 creates a new definition section that contains definitions
applicable to the use of behavior intervention. Section 720.1002 establishes
the precedence of §§720.1001-720.1013 over all other rules in Chapter
720. Section 720.1003 outlines the requirements for each residential child-care
facility and/or child-placing agency's behavior intervention policies and
procedures. Section 720.1004 creates rules regulating the use of less restrictive
forms of behavior intervention, such as quiet time and time out. Section 720.1005
outlines the general requirements for the use of different types of restraint.
Section 720.1006 creates consolidated and revised rules regulating the use
of emergency medication. Section 720.1007 creates consolidated and revised
rules regulating the use of personal restraint. Section 720.1008 creates consolidated
and revised rules regulating the use of mechanical restraint. Section 720.1009
creates consolidated and revised rules regulating the use of protective devices.
Section 720.1010 creates consolidated and revised rules regulating the use
of supportive devices. Section 720.1011 creates consolidated and revised rules
regarding the use of seclusion. Section 720.1012 creates consolidated and
revised rules regulating required training in behavior intervention for foster
parents and child care facility staff. Section 720.1013 creates rules regulating
the evaluation of behavior intervention policies and procedures.
The new sections will function by ensuring that children's rights in residential
child-care settings are better protected; the risk of a child being wrongfully
restrained, medicated, or secluded or abused due to improper use of restraint,
emergency medication, or seclusion is lowered; and child caregivers are better
able to positively manage children's behavior.
The adoption of these new rules culminates an effort spanning more than
two years, which included a public meeting on April 9, 1998, and numerous
work sessions with Licensing staff, the Texas Department of Mental Health
and Mental Retardation, Advocacy, Inc., child-care providers, and other stakeholders.
Two earlier versions of these rules were published, but withdrawn as a result
of significant public comments received. Specifically, proposed rules were
proposed in the Fall of 1998, but withdrawn by the Board at its January 7,
1999, meeting to obtain further input from interested stakeholders. At the
direction of the Board, a workgroup was convened consisting of child-care
providers and other stakeholders, which met six times during the summer of
1999. A second set of rules was published in the November 5, 1999, issue of
the
Texas Register
(hereinafter referred to
as the "November proposed rules"). During the public comment period staff
again received numerous public comments, and a third set of proposed rules
was published in the February 11, 2000, issue of the
Texas Register
.
Once again TDPRS received numerous public comments, some in support of
the February proposed rules and others favoring a return to the November proposed
rules. After careful consideration of all public comments received, these
rules are adopted with changes which TDPRS believes create a fair balance
between the need to protect the heath, safety, and well-being of children
and the resources and capabilities of child-care providers.
During the comment period, TDPRS received comments from 24 child-care facilities,
child placing agencies, organizations, and individuals. The following eight
organizations and individuals opposed adoption of the proposed rules because
they believed the rules were not stringent enough: Advocacy, Inc.; Dallas
Affiliate of the National Alliance for the Mentally Ill; National Alliance
for the MentalIy Ill Texas Board; Federation of Families for Children's Mental
Health Board; Texas Department of Mental Health and Mental Retardation; Texas
Health and Human Services Commissioner; Texas State Senator Mike Moncrief;
and one individual. The following 10 facilities, organizations, and individuals
supported adoption of the proposed rules: Austin Children's Shelter; Helping
Hand Home for Children; Settlement Home for Children; Devereux Texas Treatment
Network; Lutheran Social Services of the South; Salesmanship Club Youth Camp;
Sherwood and Myrtie Foster's Home for Children (This facility supported adoption
with requested changes.); Texas Association of Leaders in Children and Family
Services; Texas Center for Adolescent Rehabilitation and Education, Inc. (T-Care);
and one individual. (This individual supported adoption, but requested clarification.)
The following three facilities and one individual neither supported nor opposed
adoption of the proposal, but requested changes and clarification of the proposed
rules: The Brown Schools, Inc.; Alamo Adoption Agency, Inc; Coastal Bend Youth
City; and one individual. Christ's Haven for Children and one individual opposed
adoption of the proposed rules because they believed them to be too stringent.
A summary of the comments and TDPRS's responses follows:
General comments:
1) Several commenters supported the rules published in February of 2000,
stating that these rules offered a sound balance between the protection of
children and the manageability of the regulations for the providers. A similar
number of commenters disagreed, stating that the rules published in November
of 1999 were just stringent enough to adequately protect children while the
rules published in February of 2000 chose the convenience of the providers
over safety issues and the quality of care for children.
Response: TDPRS held one public meeting, numerous workgroups representing
all stakeholders, and published three different versions of these rules to
achieve a balance between all stakeholders' issues and concerns. TDPRS believes
that the current rules proposed for adoption create a fair balance between
the need to protect the heath, safety, and well-being of children and the
resources and capabilities of child-care providers.
2) Several commenters argued that standards for facilities licensed by
TDPRS should be raised to be consistent with those required of psychiatric
facilities, and that there should be more coordination between the Texas Department
of Mental Health and Mental Retardation (MHMR) and TDPRS because the risk
of implementing restraints and seclusions were the same regardless of the
setting. One of these commenters suggested that, at the least, facilities
which care for seriously emotionally disturbed children should have to meet
MHMR regulations. A similar number of commenters argued that facilities licensed
by TDPRS have the primary purpose of providing child care, not treatment or
medical care, and that the imposition of medical model regulations on their
facilities would be costly, if not impossible, to meet.
Response: While TDPRS agrees that there should be consistency between its
regulations and those regulations imposed by MHMR, TDPRS also believes that
there is room for variation in the two sets of rules that can accommodate
the differences between the child care industry and facilities operated or
regulated by MHMR, without compromising the health, safety, or well-being
of children. TDPRS still believes the rules proposed for adoption are very
consistent with the MHMR regulations and differ only in areas where the model
of child care dictates different resources and personnel than the medical
model reflected in the MHMR rules.
3) TDPRS received several comments which, together, stated that (1) the
Level of Care (LOC) reimbursement rates paid by Child Protective Services
for foster children are not adequate to support the changes proposed by the
new rules; (2) that TDPRS should not adopt rules which would increase the
cost to providers without increasing the LOC reimbursement rates; and (3)
increasing the LOC reimbursement rates would reduce child injuries and deaths
more than revisions to the Licensing regulations.
Response: While TDPRS recognizes that there are fiscal impacts in the proposed
rules, the rules themselves deal only with the regulation of child care, whose
purpose is to protect the health, safety, and well-being of children and not
with the reimbursement of providers under contracts not regulated by the Child
Care Licensing Division.
4) One commenter stated a better way to avoid misuse of restraints and
seclusions and resulting injuries would be to increase the funding and resources
of the Licensing program so that the current standards could be better enforced
through more frequent monitoring.
Response: While TDPRS agrees that the enforcement of Child Care Licensing
regulations is important, TDPRS does not have control over funding and resources
allocated to Child Care Licensing. Furthermore, TDPRS believes there to be
basic clarifications and protections in the proposal that are necessary to
ensure the health, safety, and well being of children in care, regardless
of resources.
5) One commenter stated that the regulations should not apply to privately-funded
facilities.
Response: Chapter 42 of the Human Resources Code requires all child-care
facilities to obtain a license from TDPRS and allows TDPRS to promulgate minimum
standards for these facilities. The statute requires TDPRS to protect the
health, safety, and well being of children in all licensed facilities, and
does not distinguish between privately-funded and publicly- funded facilities.
6) One commenter stated that TDPRS's estimates for the cost to those who
comply with the training requirements in §720.1012 are inaccurate. The
commenter stated that an accurate estimate would be double that in the preamble
(or $100 to $200 per employee) and requested that TDPRS revise the estimate
for training costs. The same commenter stated that TDPRS's estimates for the
cost to those who comply with requirements for obtaining orders for mechanical
restraint or seclusion are low and requested that TDPRS use current psychiatric
rates in estimating costs and carefully evaluate the amount of time it will
take to comply with the proposed new regulations.
Response: TDPRS surveyed providers and trainers in October of 1998 and
again in May of 2000 to determine that the average behavior intervention training
costs $500 for a group of 10 to 12 staff. Given that most facilities and agencies
already offer some type of training in this area under contractual regulations,
the cost should not be new. Furthermore, the rules were specifically written
to allow facilities and agencies to have one of their staff trained as a trainer
and subsequently train their staff and foster parents in-house. Given the
current training costs and the flexibility of the rules, TDPRS believes its
fiscal analysis of the training costs is sound.
Currently, TDPRS rules require PRN orders from a licensed psychologist
or a licensed psychiatrist for the use of seclusion or mechanical restraint.
The rules proposed for adoption require emergency orders from a licensed psychiatrist
for the use of mechanical restraint. Considering the Medicaid reimbursement
rate in October of 1998 of $78.47 per hour for a licensed psychiatrist, TDPRS
determined that obtaining an emergency order would cost $19.62 (or 15 minutes
of the licensed psychiatrist's time). The current Medicaid reimbursement rate
for psychiatrists is $76.92, creating a cost of $19.23 for an emergency order.
Regarding seclusion, the rules proposed for adoption require PRN orders from
a licensed psychiatrist (no change from current rule) or emergency orders
for a licensed psychologist (change from current rule). Provided the Medicaid
reimbursement rate of $62.61 per hour in October of 1998 for a licensed psychologist,
TDPRS determined that obtaining an emergency order would cost $15.86 (or 15
minutes of the licensed psychologist's time). The current Medicaid reimbursement
rate for psychiatrists is $76.92, increasing the fiscal impact to $19.23 per
emergency order for seclusion from a licensed psychologist.
7) One commenter stated because experience and literature on preventing
medical errors suggest that shorter and more straightforward procedures are
easier to both perform and enforce, TDPRS should revise the rules to be less
complex and should apply simplified procedures uniformly across all domains
with few exceptions.
Response: TDPRS has balanced the goal of providing simple, straightforward,
rules with repeated and varied requests from the public for further clarification
and elaboration on the different proposals published for public comment.
8) One commenter suggested that residential treatment centers (RTCs) that
are co-located with psychiatric hospitals should follow the same standard
of care as psychiatric hospitals, just as RTCs that are dually licensed with
psychiatric hospitals are now required to do under the Texas Department of
Health requirements.
Response: TDPRS is willing to pursue this idea in the future, but would
like more time to research it fully.
9) One commenter suggested that child-care facilities which serve children
who have not been previously identified as having specific behavioral health
diagnoses should not use restraint (personal, mechanical, or chemical) or
seclusion.
Response: In the rules proposed for adoption, chemical restraint is prohibited,
mechanical restraint is allowed only in residential treatment centers and
institutions serving mentally retarded children, and seclusion is permitted
only in residential treatment centers, institutions serving mentally retarded
children, and emergency shelters. TDPRS believes that all child caregivers
must have the ability to use personal restraint to protect children from their
own endangering behavior or the endangering behavior of other children, with
or without a physician's order, and therefore did not make a change to the
rule proposal regarding this comment.
10) One commenter stated that treatment by medical doctors/family practitioners
should be more accepted and incorporated into these rules. Psychiatrists are
only marginally familiar with the children they treat and family practitioners/pediatricians
have more experience in treating aberrant behavior than in the past.
Response: General medical doctors are allowed to order emergency medications,
protective devices, and supportive devices in this proposal. TDPRS continues
to recognize licensed psychiatrists and psychologists as the professionals
trained to order more severe behavior interventions, such as mechanical restraints
or seclusions, based on feedback received from providers and stakeholders
in numerous work sessions.
11) One commenter expressed concern that the proposal did not address adjudicated
youth.
Response: Licensing is not mandated nor are its rules designed to regulate
the care of adjudicated youth.
12) One commenter stated that the rules propose a broad solution over a
variety of settings and child severities without appropriate acknowledgement
of same.
Response: TDPRS believes this proposal represents basic protections that
are appropriate for all children, regardless of their assigned level of care
or their child care environment.
Comments concerning §720.1001:
1) One commenter requested that foster parents and staff not be defined
together as a "caregiver" in §720.1001(1).
Response: While TDPRS understands the difference between foster parents
and facility staff, for the purposes of these rules, one term was necessary
to define those persons having direct contact with and responsibility for
the care of children. TDPRS is adopting without change.
2) In regards to the definition of "caregiver qualified in behavior intervention"
in §720.1001(2), TDPRS received comments that (1) the definition should
set higher restrictions on the age, education, and licensure status of individuals
who would be allowed to initiate emergency interventions; (2) in light of
recent deaths due to restraints, TDPRS should study the patterns of employment
in residential facilities; (3) the definition is inadequate and it is not
clear what the "minimum standard qualifications" are and what training and
experience are required; and (4) no rules should require the presence of medical
staff in an emergency shelter.
Response: To adopt a universal set of regulations for all foster homes,
child-care facilities, and child-placing agencies, TDPRS had to create a broad
definition of a "caregiver qualified in behavior intervention." The intention
is for these caregivers to meet the minimum standards required for foster
parents or child caring staff that are set forth in the minimum standards
for the applicable facility type AND meet the minimum training requirements
set forth in §720.1013 (relating to Behavior Intervention Training).
The rules do not require the presence of medical staff in an emergency shelter.
TDPRS will be privy to more detailed documentation of restraints and seclusions
under the proposed rules and will be able to study patterns of employment
in relation to restraint deaths. TDPRS is adopting without change.
3) In regards to the definition of "emergency medication" in §720.1001(7),
TDPRS received comments that: (1) the definition of emergency medication should
distinguish between medication a child voluntarily takes to reduce stress
and anxiety (a therapeutic application) and medication administered to sedate
or subdue a child (a restraint); (2) there should be a more clear definition
of the use of psychoactive medication as a restraint; (3) the definition should
distinguish between medications that have a restraining or behavior changing
effect but that are administered for medical reasons other than the restraint
of the child, such as benadryl or medication for seizures; (4) TDPRS should
define chemical restraint and emergency psychoactive medication in the same
way the Texas Department of Mental Health and Mental Retardation does. More
specifically, TDPRS should prohibit the use of drugs solely to immobilize
or sedate people as a mechanism of control, as this is chemical restraint
and is prohibited in the state of Texas; and (5) TDPRS should revise and expand
the definition of emergency medication to permit its use in non-emergency
situations in order to protect the health and safety of children, especially
because of verbal threats or verbal attacks.
Response: TDPRS agrees that the definition and regulation of emergency
medication was not sufficiently clear in either the November or the current
proposed rules. Therefore, TDPRS has added a definition of chemical restraint
in §720.1001(3) and prohibited its use in §720.1006. TDPRS has also
revised the definition of emergency medication in §720.1001(8) and provided
clarification about the use of medication for other purposes in §720.1006(a)(4).
The purpose of these changes is to make it clear that immobilizing or sedating
a child as a mechanism for control is not permitted; that the use of emergency
medication is the use of a medication in an emergency situation whose purpose
is to modify the child's behavior; and that medications used primarily for
medical reasons other than the modification of a child's behavior are not
emergency medications or chemical restraint.
4) Two commenters stated that escorting should not be considered a personal
restraint. The definition as written is expansive and penalizes both the child
who may need physical touch as a reminder and the provider. One commenter
stated that documentation for escorting should not be required.
Response: The definition already distinguishes between escorting and re-direction
or guidance of a child that does not physically resist moving with the caregiver
and the situation does not escalate into a need to physically force the child
to move. There are also certain exceptions to the definitions of personal
restraint (and hence escorting) in §720.1007(a)(1)-(2). Escorting, given
this definition and the above exceptions, employs the same amount of force
and carries the same amount of risk as a personal restraint and therefore
should be regulated as such. TDPRS is adopting without change.
5) TDPRS received several comments regarding the definition of emergency
situation and imminent significant risk. One commenter stated that this definition
of "emergency situation" is not operational or applicable to real situations
because trying to determine what harm will occur during a situation is impossible.
TDPRS received several comments regarding the definition of "imminent significant
risk." In summary, the commenters stated that (1) the definition of imminent
significant risk should hinge upon a risk of substantial bodily harm; (2)
providers cannot anticipate the level of harm posed by an out-of-control child
and should therefore not be required to make difficult, subjective, judgements
while a child's behavior is escalating. Therefore, the definition should hinge
upon a risk of bodily harm; and (3) the definition does not allow for interventions
in situations that are not of imminent significant risk, but are disruptive,
such as young children from pulling hair or scratching each other.
One commenter suggested that imminent significant risk and emergency situation
be combined into one definition of an emergency situation which would be "a
situation in which it is immediately necessary to restrain or seclude a child
to prevent: (A) imminent probable death or substantial bodily harm to the
child because the child overtly or continually is threatening or attempting
to commit suicide or serious bodily harm; or (B) imminent physical harm to
others because of threats, attempts, or other acts the patient overtly or
continually makes or commits, and preventative, de-escalative, or verbal techniques
have proven ineffective at diffusing the potential for injury. These situations
may include aggressive acts by the individual, including serious incidences
of shoving or grabbing others over their objections."
Response: TDPRS has revised the definition of emergency situation to reflect
the last commenter's suggested definition. The new definition creates a higher
level of risk necessary for restraint or seclusion of a self-endangering child
than for a child posing harm to others. Because restraining a self-endangering
child is merely replacing one risk (self injury) with another (restraint/seclusion),
TDPRS believes the new definition properly balances relative risk of harm
to children and others. The new definition of emergency situation has been
incorporated into §720.1007 so that the use of personal restraint may
only be used in emergency situations (with exceptions noted in subsection
(a)(1)-(2)).
6) One commenter wanted mitts to be allowed as protective devices in the
definition of "protective devices" in §720.1001(18) for self-abusive
patients.
Response: Mitts used to prevent voluntary self-injury do not meet the definition
of a mechanical restraint or a protective device and would therefore not be
regulated as such. TDPRS is adopting without change.
7) Several commenters stated concern that sending a child to his room would
be interpreted as a seclusion and would require written orders. They argued
that this would prevent caregivers from using the common parenting tool of
time out or groundings to the child's room. Other commenters expressed concern
that the definition would allow children to be placed in situations where
their egress was prevented and believed that any intervention in which a child
is involuntary placed in a situation in which his egress is prevented should
be defined and regulated as a seclusion.
Response: TDPRS believes that caregivers must retain the ability to use
time outs and groundings and that these interventions are not seclusions if
the child is not alone or is not physically forced to remain in a designated
area. The definition of seclusion had been changed to make it clear that if
a caregiver uses physical force or a physical barrier to prevent a child's
egress, the intervention becomes either a personal restraint or a seclusion.
8) TDPRS received several comments that the definition of "substantial
bodily harm" in §720.1001(23) is too vague, is too severe, requires difficult
and subjective judgement, and does not contain provisions for suicide or assaultive
precautions for children who are in severe psychiatric crisis.
Response: This definition is used in the definition of "emergency situation"
to create a level of risk necessary to justify the use of restraint and seclusion.
The definition of "emergency situation" discusses suicidal and assaultive
behavior. TDPRS is adopting the definition of substantial bodily harm without
change.
Comment concerning §720.1002: One commenter stated that this section
is meaningless as it is not operationally or procedurally defined.
Response: This section is not a requirement for facilities, but instead
establishes the precedence of the administrative rules in the sections over
any other rules in Chapter 725 in the event of conflict with the rules. This
will allow Licensing staff to clean up any conflicting rules as they revise
all Licensing rules during its review of all Licensing rules. TDPRS is adopting
without change.
Comments concerning §720.1003:
1) One commenter asked if the requirements in §720.1003 applied to
children from ages zero to seven.
Response: Yes, §720.1003 applies to children of all ages.
2) Several commenters opposed the requirement that facilities and agencies
submit their policies for approval, saying the requirement would be costly
for both the facilities and TDPRS. Two commenters went further to say that
such a requirement of private agencies goes beyond the scope of the law. Two
different commenters, however, supported the requirement as a new protection
for children. One commenter suggested that rather than the requirement to
submit policies for approval, there be a behavioral intervention manual or
a set of standards against which the facilities' policies will be evaluated
and that this manual or set of standards be provided to the regulated facilities
and agencies. This commenter also suggested that a committee of qualified
(licensed/credentialed) clinicians be established to review and approve the
policies.
Response: TDPRS recognizes the burden and time constraints of a requirement
for facilities to submit all behavior intervention policies and procedures
for approval before implementation, and has therefore removed the requirement
in subsection (e) and modified the requirement in subsection (f), so that
facilities must only notify TDPRS of changes to policies and procedures, but
do not need to wait for approval before implementing those changes.
3) One commenter suggested that TDPRS consider requiring a means to track
the extent to which youth actually provide comments about restraint/seclusion.
Response: To track such data, TDPRS would have to require facilities to
submit documentation on every youth comment on restraint or seclusion. This
would be an unreasonable burden on facilities. TDPRS is adopting without change.
4) One commenter suggested that facilities be required to remind children
of their rights quarterly and that there be a more direct connection between
the child and TDPRS so that commenting on restraints to facility staff will
not be so difficult for children.
Response: While the intent of this suggestion is understandable, TDPRS
expects providers to create an environment in which children's rights are
supported. TDPRS is adopting without change.
Comments concerning §720.1004: Several commenters advocated for specific
regulations of the use of time out and quiet time. TDPRS proposed such regulations
in November of 1999, but received many opposing comments stating that quiet
time and time out are parenting tools that are non-physical and should be
encouraged. These commenters felt that regulating time out and quiet time
sends a message that quiet time and time out were restrictive practices that
shouldn't be used, while the commenters believe them to be excellent tools
for de-escalating aggressive behavior and helping children calm themselves.
In response to these comments, TDPRS did not propose regulations for the use
of quiet time and time out in its February 2000 publication of rules. The
absence of these regulations remained an issue in the February public comment
period. Several commenters stated that the removal of these regulations (from
the November proposal) meant that providers would not have guidance on the
appropriate use of these essential de-escalation techniques and, furthermore,
that the regulations set necessary parameters differentiating time out and
quiet time from seclusion. These commenters did not believe that the regulations
were too restrictive or created disincentives to using these interventions.
Response: It is not the intent of TDPRS to place undue burdens on the use
of time out or quiet time, but only to encourage their use as less-restrictive
interventions and distinguish these restrictions from seclusion. Therefore,
TDPRS has not re-introduced regulations for the use of time out or quiet time,
but has clarified in subsection (b) that facilities' policies and procedures
must require that caregivers attempt and prove ineffective the use of less
restrictive, de-escalative, and preventive techniques for the emergency use
of any restraint or seclusion, and added subsection (d) to clarify that any
time a caregiver uses physical force or a physical barrier to restrain a child
or prevent a child from leaving a quiet time or time out, the intervention
becomes a restraint or a seclusion.
Comments concerning §720.1005:
1) One commenter stated that the phrase "if such less restrictive techniques
can be used without endangering the safety of the individuals involved" at
the end of this paragraph should be removed because it creates a major loop
hole which will enable providers to skip attempts to prevent the need for
restraints and de-escalate children.
Response: TDPRS added the phrase in question in response to a comment on
the November 1999 proposal that stated using less-restrictive techniques is
not always appropriate, especially when a child is attacking other children.
However, the revised definition of "emergency situation" in §720.1001(10)
allows for the use of restraint or seclusion or a lesser standard of harm
to others and addresses both commenters' concerns. Therefore, the phrase has
been removed.
2) One commenter asked the meaning of administering a restraint or seclusion.
Response: In this rule, "administered" means implemented or managed by
a person.
Comments concerning §720.1006:
1) One commenter requested that TDPRS prohibit the use of emergency medication
in children under the age of nine because of the potential adverse consequences.
Response: TDPRS believes that the ordering physician has the responsibility
for deciding when a medication is appropriate and when it may have adverse
consequences. TDPRS is adopting without change.
2) One commenter stated that the orders should include "specific behaviors
and circumstances under which medication may be administered."
Response: The rules published in November of1999 contained the language
suggested by the commenter; however TDPRS removed the word "specific" from
the rule in response to a comment that a requirement for "a complete description
of specific behaviors and circumstances under which medication may be administered
to restrain the child" in the order was problematic, especially if a child
exhibited endangering behaviors that were not specified in the order, and
could create confusion for providers and licensing workers. TDPRS agrees with
this comment and has left the rule as it was proposed in February of 2000.
3) One commenter objected to the use of PRN orders, with the exception
of foster care. Another commenter objected to the use of PRN orders for emergency
medication under any circumstances. This commenter felt that not only should
physicians issue emergency orders for the use of emergency medication, but
that the regulations should specify how often the physician should be consulted
during the process of each intervention.
Response: TDPRS believes it appropriate to defer to the professionals who
issue the orders, especially given that there are not medical personnel on
staff to issue emergency orders. TDPRS is adopting without change.
4) One commenter expressed concern that too often what occurs is simply
verbal orders to stop a behavior, documented as "verbal redirection attempted
without success." The attempt at de-escalation is intended to be thoughtful
and meaningful. Again please add the "the specific alternative strategies."
Response: While TDPRS understands the intent of this suggestion, we believe
the required documentation will be adequate. Best practices around good documentation
can be covered in training. TDPRS is adopting without change.
5) One commenter asked: What does "participating in the emergency medication"
mean?
Response: To clarify the meaning of this documentation, §720.1006(d)(2)(E)
has been revised to read: "the name of the caregiver(s) participating in the
intervention that led to the need for emergency medication and the name of
the caregiver(s) who administered the emergency medication."
6) One commenter asked: What does injury sustained as a result of the use
of medication mean, extrapyramidal affects, toxicity?
Response: The rule language in §720.1006(d)(2)(G) has been revised
to read "any injury the child sustained as a result of the incident or any
adverse effects caused by the use of medication."
7) One commenter stated that the term "following the end of the emergency
medication" is not operational. The commenter asked, "Does the end mean the
last dosage, the dissipation of effects, what degree of dissipation, the resumption
of routine medications, a set time period after last dosage?"
Response: Because an emergency medication is only a medication used to
modify a child's behavior in an emergency situation, the rules assume there
will be a time when the child's behavior is no longer being affected by that
medication and that would be the "end" of the emergency medication.
Comments concerning §720.1007:
1) One commenter stated that personal restraint should only be allowed
if ordered by a physician who considered psychological and physical contraindications
to personal restraint, particularly because personal restraint is the form
of restraint most likely to evoke a highly reactive response from children
and adolescents who have been previously physically or sexually abused or
traumatized. The same commenter stated that facilities who were unwilling
or unable to obtain a physician's order for all types of restraint and seclusion
should not serve children who may require personal restraint.
Response: TDPRS added requirements for reviewing contraindications to personal
restraint either when writing an order or treatment team recommendations (§720.1007(b)(2))
or when retroactively reviewing the frequent personal restraints of a child
(§720.1007(a)(4)(C)(ii)). Regarding the second comment, TDPRS believes
that all child caregivers must have the ability to use personal restraint
to protect children from their own endangering behavior or the endangering
behavior of other children, with or without a physician's order, and therefore
did not make any further changes to the rules regarding this comment.
2) TDPRS received several comments regarding §720.1007(a)(1) as it
was published in February 2000, which, in general, expressed confusion about
the distinction between subparagraphs (A)-(D), and the rationale behind them.
One commenter requested that subparagraphs (B), (C) and (D) be removed because
the situations described in them could be covered by the 59 second or less
restraint allowed in subparagraph (A). Another commenter supported the clarification
in subparagraph (A), that brief interruption of normal dangerous childhood
behaviors is not restraint. The commenter also pointed out that TDMHMR prohibits
the use of restraint or seclusion as an intervention for property damage or
any other "disruption of the therapeutic milieu." The same commenter requested
more specifications concerning application of the provision to persons with
a developmental age under five and clarification of "inciting" behavior in
subparagraph (D).
Response: TDPRS provided clarification and consistency by rewriting new
subsections (a)(1)-(2). Subsection (a)(1) describes the exception which allows
personal restraint to prevent significant property damage, which is not an
emergency situation, but clarifies that this restraint is still subject to
all the other regulations imposed in the section. Subsection (a)(2) describes
circumstances under which personal restraint is allowed and regulated only
under subsection (c).
3) One commenter stated that in (b)(9), personal restraint cannot be used
simultaneously with mechanical restraint and asked that the word "mechanical
restraint" be deleted from this subsection. This commenter also requested
clarification on who would be providing the clinical justification for the
simultaneous use of personal restraint and emergency medication.
Response: TDPRS has incorporated this suggestion and "mechanical restraint"
has been removed from this subsection. Furthermore, TDPRS has clarified in §720.1007(c)(10)
and §720.1006(c)(2)(A) that the physician ordering the emergency medication
must provide the clinical justification for its combined use with personal
restraint.
4) One commenter requested that certain forms of restraint that have been
demonstrated to be especially dangerous should be prohibited in the rules,
specifically (1) face down restraint with back pressure; (2) any technique
that obstructs the airways or impairs breathing; (3) any technique that obstructs
vision; and (4) any technique that restricts the recipient's ability to communicate.
Response: Because the rules require that staff (1) initiate personal restraint
in a way that minimizes the risk of physical discomfort, harm, or pain to
the child; (2) use only the minimal amount of force that is reasonable or
necessary; and (3) ensure adequate breathing and circulation when restraining
a child, TDPRS agrees that holds shown to have compromised the breathing or
circulation of children in restraint deaths nationwide and prohibited in the
regulations of at least one state should likewise be prohibited in these rules.
Therefore, TDPRS has added the prohibitions to §720.1007(c)(2).
5) The rules proposed by TDPRS in November of 1999 included maximum time
limits for the personal restraint of a child. In response to many comments
that the time limits were arbitrary and that children should never be released
from a restraint until they are no longer a danger to themselves or others,
TDPRS removed these time limits in the February 2000 proposal. While TDPRS
received numerous comments supporting the removal of these time limits, there
were also several comments opposing the removal of the time limits because
of safety concerns, including the surge in deaths nationwide and the phenomenon
of "restraint asphyxiation." One of these commenters also pointed out that
there are time limits imposed on personal restraint in MHMR facilities even
alongside requirements that require more experience, better trained staff
and more facility resources. One commenter requested a maximum time limit
of only 15 minutes.
Response: TDPRS has reconsidered the maximum amount of time caregivers
should be permitted to restrain a child. The Texas Department of Mental Health
and Mental Retardation, the Health Care Finance Administration, and the Joint
Commission on Accreditation of Healthcare Organizations impose time limits
of two hours for children 9-17 years and one hour for children under nine
years in all their regulated settings. However, caregivers in these settings
must have emergency orders from a physician before restraining a child. Because
caregivers in TDPRS-regulated child care may personally restrain a child with
PRN orders or without orders at all, TDPRS believes that a shorter time limit
is necessary to protect children and caregivers. Therefore, TDPRS has reinstated
the time limits proposed in November of 1999.
6) One commenter stated that the follow-up discussion required in §720.1007
be required no later than 12 hours, or at least no later than 24 hours, as
required in the November proposal.
Response: TDPRS changed the time limit for follow-up discussions from 24
hours (in the November proposal) to 72 hours in the February proposal in response
to a comment that expressed concern that a large majority of the clients are
not capable of or willing to discuss the incident within 24 hours. However,
TDPRS recognizes that 72 hours can be a very long time to a child and therefore
has changed the maximum time limit for follow-up discussions to 48 hours in §720.1006(c)(3), §720.1007(d)(1)(C), §720.1008(e)(1)(C),
and §720.1011(e)(1)(C).
7) One commenter asked that TDPRS rewrite §720.1007(e)(3) to read
"the specific alternative strategies."
Response: While TDPRS understands the intent of this suggestion, TDPRS
believes the required documentation will be adequate. Best practices around
good documentation can be covered in training. TDPRS is adopting without change.
8) One commenter asked that TDPRS rewrite §720.1007(e)(7) to read
"the specific de-escalating strategies."
Response: While TDPRS understands the intent of this suggestion, TDPRS
believes the required documentation will be adequate. Best practices around
good documentation can be covered in training. TDPRS is adopting without change.
Comments concerning §720.1008:
1) One commenter stated that permitting mechanical restraint only in emergency
situations was limiting and does not ensure the safety of others and asked
that TDPRS revise and expand the standard to include verbal threats. Another
commenter requested that the use of mechanical restraints be explicitly limited
to unanticipated emergency situations.
Response: Because mechanical restraint is such a severe form of restraint,
the rules prohibit its use until a situation reaches the level of an emergency.
Concerning verbal threats and attacks, the rules were written on the assumption
that restraint is a last resort and that when a child is behaving in such
a way that may indicate future risk of harm, it is much more appropriate for
staff to de-escalate the behavior rather than to initiate a restraint.
Regarding the comment that mechanical restraint be permitted only in unanticipated
emergency situations, TDPRS believes this would be very difficult to follow
and enforce and also limits a psychiatrist from being able to prescribe the
most appropriate intervention in any emergency situation. Because a psychiatrist
is not permitted to write a PRN order for mechanical restraint, he could not
prescribe a mechanical restraint for routine emergency situations.
2) One commenter asked: "In (a)(4)(B) who reviews for medical contraindications;
and in (C) why a psychiatrist would be qualified to assess alterations of
commercially available devices as opposed to an orthopedist or physical therapist?
Response: TDPRS revised §720.1008(a)(4) to clarify that it is the
psychiatrist who approves the alternative use of a mechanical restraint device
and who reviews for contraindications for the alternative use of that device.
Physical therapists and orthopedists are not permitted to approve the alternative
use of a mechanical restraint device because it is the psychiatrist who orders
the use of the mechanical restraint and who is qualified to review medical
and psychiatric contraindications.
3) One commenter stated that the time limit of one hour for children aged
9 to 17 in a mechanical restraint is more restrictive than HCFA standards
and should be consistent. Another commenter recommended limiting the time
that children can be in mechanical restraint to 15 minutes, with increases
in increments 15 minutes maximally.
Response: The HCFA rules regulate hospitals where there are higher standards,
more resources, and a constant availability of medical staff. This is why
they are allowed to implement mechanical restraints for longer periods of
time. The HCFA rules do not regulate any facilities regulated by TDPRS. TDPRS
is adopting without change.
4) One commenter stated that the rule should state the maximum amount of
time a child could be mechanically restrained if a psychiatrist permits continuation
beyond the time limits in (b)(6); that the amount of time that physician has
to countersign an order should be reduced to 24 hours; and that the rules
specify how often the psychiatrist must see the restrained child.
Response: TDPRS added a maximum time limit for continuation by a psychiatrist's
permission of 12 hours in §720.1008(b)(7), but did not change the amount
of time that the psychiatrist has to countersign such an order because the
provider community has indicated it is not feasible to obtain such a countersignature
in 24 hours and because TDPRS does not think that obtaining the countersignature
in 72 hours creates a risk to the health and safety of the child that has
already been restrained. Regarding the commenter's third request, TDPRS made
no changes because a child cannot be mechanically restrained for more than
12 hours and the regulations for MHMR facilities require only that the physician
see the child twice in one day.
5) One commenter recommended reducing the time period for explaining what
actions the child must take to be released from restraint to 10 minutes.
Response: The 15-minute increment of time mirrors the MHMR rules on restraint,
which also require that explanations or attempted explanations be made every
15 minutes. TDPRS is adopting without change.
6) One commenter suggested adding "a bath daily or more frequently if needed"
to §720.1008(c)(10).
Response: TDPRS made no changes because a child cannot be mechanically
restrained for more than 12 hours, making a daily bath unnecessary.
7) One commenter stated that in (c)(11), personal restraint cannot be used
simultaneously with mechanical restraint and asked that the word "personal
restraint" be deleted from this subsection. This commenter also requested
clarification on who would be providing the clinical justification for the
simultaneous use of mechanical restraint and emergency medication.
Response: TDPRS has incorporated this suggestion and "personal restraint"
has been removed from this subsection. Furthermore, TDPRS has clarified in §720.1008(c)(11)
and §720.1006(c)(2)(B) that the physician ordering the emergency medication
and the psychiatrist ordering the mechanical restraint must consult and together
provide the clinical justification for their combined use.
8) One commenter recommended reducing the timelines for documentation of
mechanical restraint to eight hours.
Response: TDPRS believes that documentation within 24 hours can be as accurate
as documentation made within eight hours and that caregivers are allowed the
flexibility to find a time when they can concentrate on the documentation.
TDPRS is adopting without change.
Comments concerning §720.1011:
1) One commenter asked that TDPRS revise and expand the use of seclusion
beyond emergency situations, specifically including situations when children
make verbal threats or attacks.
Response: Because seclusion is such a severe form of restraint, the rules
prohibit its use until a situation reaches the level of an emergency situation,
which has been redefined in §720.1001(10). Concerning verbal threats
and attacks, the rules were written on the assumption that restraint is a
last resort and that when a child is behaving in such a way that may indicate
future risk of harm, it is much more appropriate for staff to de-escalate
the behavior rather than to initiate a restraint. TDPRS is adopting without
change.
2) Several commenters stated that only a physician or psychiatrist should
be able to order seclusion as there are medical implications which a psychologist
is not trained to consider. Another commenter, however, stated that because
seclusion is a mental health/behavior health procedure and not a medical procedure,
Licensed Master Social Workers with Advanced Clinical Practice (LMSW-ACP)
and Licensed Professional Counselors (LPC) should be able to order seclusion.
Response: TDPRS consulted with the Texas State Board of Social Work Examiners
which licenses LMSW-ACP. The Board did not support permitting social workers
at any level to order seclusion. On the other hand, the Texas State Board
of Examiners of Psychologists and the Texas Psychological Association have
commented that the ordering of seclusion does fall into the purview of the
psychological profession. TDPRS is adopting without change.
3) Two commenters objected to the use of PRN orders and one of the commenters
further stated that TDPRS's rules should specify how often the ordering physician
should visit the secluded child. Another commenter stated that no justification
was provided for distinguishing discretionary decision making between a psychiatrist,
a general physician, and a psychologist and that general physicians did not
have the training to identify and properly treat the behavior of children.
Response: TDPRS did remove the ability for general physicians to write
orders for the use of seclusion. However TDPRS believes that because it is
rare for a licensed child-care facility to have a resident psychiatrist, that
the regulations must be flexible and allow for PRN orders from these professionals.
PRN orders from licensed psychologists are not allowed.
4) One commenter stated that heightened observation is not operationally
defined.
Response: Orders requiring heightened observation would be orders requiring
observation of a child for specific behaviors or reactions to the seclusion.
5) One commenter recommended limiting the time that children can be in
seclusion to 15 minutes, with increases in increments 15 minutes maximally.
Response: The rules already state that children must be observed continuously
and released from seclusion as soon as they are no longer a danger to themselves
or others or if an emergency health situation occurs. TDPRS believes that
a 15- minute interval time limit would not necessarily decrease any risk to
children. TDPRS is adopting without change.
6) One commenter stated that no justification is provided for distinguishing
between procedures for determining emergency situations prior to the use of
seclusion in institutions serving children with mental retardation, residential
treatment centers (RTC), emergency shelters, or RTCs with autistic clients.
There should be more vigilance in emergency shelters where fewer trained staff
are employed.
Response: The rule only allows for the use of seclusion in emergency shelters
while shelter staff are obtaining immediate medical attention. Emergency shelters
require this ability because they are not privy to the backgrounds and diagnosis
of the children they admit and may need to seclude a dangerous child while
they obtain emergency assistance. TDPRS is adopting without change.
7) One commenter stated that bedding should not be a requirement as it
presents a serious risk to obstruction to viewing the child and provides material
that can be fashioned into noose-like tools to self harm.
Response: TDPRS currently requires that bedding be available for children
as a comfort to them in seclusion. If a child shows a pattern of obstructing
the view of himself with bedding or tries to harm himself with materials from
the bedding, than the caregiver who is continuously observing the child should
intervene to protect the child. In these cases seclusion may not be the most
appropriate intervention for that child. TDPRS is adopting without change.
8) One commenter believes that there are no assurances that the person
observing the child via video camera would be close enough to intervene in
an emergency, which is the point of continuous observation.
Response: TDPRS had assumed that observation via video would take place
in close proximity to the child and agree this is not clear in the rule. Therefore,
the rule has been changed to remove permission to observe children via video
camera.
9) One commenter asked that §720.1011(c)(12) be eliminated because
a child who is calm enough to go to the bathroom and eat a meal should not
be returned to seclusion if seclusion really is an emergency measure to be
used only to protect the child and others from harm.
Response: With this rule, TDPRS is trying to protect the bodily needs of
children. The decision to release a child from seclusion belongs to the facility
and the clinicians. If, after allowing the child to go to the bathroom, a
caregiver does not feel it necessary to return the child to the seclusion,
then the child does not have to return to seclusion. It is the expectation
of TDPRS that a child will rarely be given meals and bathroom breaks during
a seclusion, but the right of the child to be hydrated, fed, and provided
with bathroom opportunities must be protected. TDPRS is adopting without change.
10) One commenter asked that TDPRS identify specific exit criteria that
are descriptive and observable and/or a timeframe of 15 minutes, arguing that
this approach would assure the safety of all involved.
Response: It is the ordering psychiatrist/physician/psychologist's responsibility
to describe the release behaviors. If a child is demonstrating those behaviors,
five minutes is more than adequate time to evaluate the genuineness of the
release behaviors. Continuing to seclude the child for 15 minutes after he
has demonstrated the release behaviors is a substantial extension of that
seclusion. TDPRS is adopting without change.
11) One commenter stated that in (c)(13), personal restraint cannot be
used simultaneously with seclusion and asked that the word personal restraint
be deleted from this subsection. This commenter also requested clarification
on who would be providing the clinical justification for the simultaneous
use of seclusion and emergency medication.
Response: TDPRS has incorporated this suggestion and "personal restraint"
has been removed from this subsection. Furthermore, TDPRS has clarified in §720.1011(c)(13)
and in §720.1006(c)(2)(C) that the physician ordering the emergency medication
and the psychiatrist or psychologist ordering the seclusion must consult and
together provide the clinical justification for their combined use.
Comments concerning §720.1012:
1) Several commenters opposed the requirement that facilities and agencies
submit their training policies and curricula for approval, saying the requirement
would be costly for both the facilities and TDPRS. Two different commenters,
however, supported the requirement as a new protection for children. One commenter
suggested that rather than the requirement to submit training policies and
curricula for approval, there be a uniform standard of training or curricula
against which the facilities policies will be evaluated. Another commenter
also suggested that a committee of qualified (licensed/credentialed) clinicians
be established to review and approve the policies and that TDPRS establish
a 30-day time frame for this review.
Another commenter stated that TDPRS needs to be sure that caregivers are
trained in the safest methods possible and suggested that TDPRS review the
relationship with deaths and the PMAB tactics of holding and approve or disapprove
the training curricula of facilities depending on this information.
Response: TDPRS recognizes the burden and time constraints proposed by
a requirement for facilities to submit all behavior intervention training
policies and curricula for approval prior to implementation, and has therefore
removed the requirement in subsection (a)(2). TDPRS has revised the requirements
in subsections (a) and (b) so it is clear that all training curricula must
meet the components listed in subsection (b). Regarding the second comment,
TDPRS will make the most of the new data which will be provided under the
adopted rules and will continue to adjust training standards to best protect
children.
2) One commenter recommended that only new caregivers who had been trained
in the previous six months and employed within the previous year should be
exempt from pre-service training requirements in (b)(1).
Response: The trainer should be able to certify competency regardless of
the amount of time since the last training. TDPRS is adopting without change.
3) Two commenters objected to the use of video in training because physical
intervention training requires a demonstration of competency, which cannot
be achieved when staff watch a video only. One of these commenters stated
that the use of video as part of instruction be permitted if staff are required
to demonstrate skill competency.
Response: TDPRS provided clarification and limited the ability to video
conference because the rule says that video instruction may be used as part
of a curriculum as long as an instructor is available to discuss the video.
Furthermore, video instruction is not permitted to train staff on the implementation
of restraints or seclusions.
4) One commenter suggested that TDPRS should require more than four clock
hours of annual training. The commenter pointed out that the Texas Youth Commission
(TYC) requires annual clock hours on restraint techniques and six hours of
basic communication and verbal crisis intervention.
Response: The TYC population requires care by staff with more extensive
training in restraint. TDPRS is adopting without change.
5) One commenter questioned whether it was really TDPRS's intent that caregivers
qualified to implement mechanical restraints had to be a registered nurse
while caregivers qualified to administer emergency medications did not.
Response: Yes, TDPRS's intent was to require registered nurses to administer
mechanical restraint because the requirements to check for circulation, skin
color, and respiration must be conducted at least every 15 minutes. TDPRS
does not require registered nurses to administer emergency medication because
these personnel are not available in foster homes and other basic child-care
facilities where caregivers are able to administer prescription medication.
Furthermore, the ordering physician can make a decision as to whether or not
the caregiver is capable of safely administering the emergency medication.
Comments concerning §720.1013:
1) The rules proposed by TDPRS in November of 1999 included requirements
that any time a child was (1) administered emergency medication more than
twice in a 30-day period; (2) secluded or mechanically restrained more than
twice in a seven-day period; or (3) personally restrained more than three
times in a seven-day period, a review of the frequency and effectiveness of
these interventions was triggered, to be completed in seven days. In response
to numerous comments that the triggered reviews would impose unreasonable
burdens on facility resources and staff time, TDPRS removed these triggered
reviews in the February 2000 proposal, but included a requirement in §720.1013(a)
that the frequency of interventions be reviewed each time the child's plan
of service or treatment plan is reviewed. While TDPRS received numerous comments
supporting this change, there were also several comments opposing the removal
of the triggered reviews because of the need to address the safety and therapeutic
effectiveness of the interventions, especially given the facilities' ability
to use these interventions under PRN orders. One of these commenters asked
that TDPRS require frequent interventions be reviewed at least on a monthly
basis.
Response: TDPRS does agree that the health, safety, and well-being of a
child who is being frequently restrained is better protected by reviews of
that child's behavior and the effectiveness of the intervention. Therefore,
TDPRS reinstated the triggered reviews in §720.1006, §720.1007, §720.1008,
and §720.1011. However, because TDPRS also recognizes the amount of staff
time and resources required by these reviews, TDPRS has allowed for 30 days,
rather than seven days, to conduct the review. The rules also allow for the
regularly scheduled review in §720.1013(a) to serve as the triggered
review if it is held within the 30-day timeframe.
2) One commenter stated that the requirements in subsection (a) should
only apply to children six years of age and older. This commenter also stated
that the TDPRS should provide an evaluation tool to facilitate compliance
with this requirement.
Response: Again the rules in the proposal apply to all children, regardless
of age, unless otherwise noted. TDPRS will be happy to work on an evaluation
tool which will help providers meet this requirement.
In addition to the changes resulting from public comment, TDPRS has made
a correction in §720.1007(a)(1)(B). The proposal contained the phrase
"from immediate dangers for example." It has been corrected to read "from
immediate danger- for example."
Under section 2007.003(b) of the Texas Government Code, the department
has determined that Chapter 2007 of the Government Code does not apply to
these rules. Accordingly, the department is not required to complete a takings
impact assessment regarding these rules.
The new sections are adopted under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The new sections implement the Human Resources Code, §§42.001-42.077.
§720.1001.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings. The following definitions take precedence over all
other similar definitions in this chapter, in the event of a conflict.
(1)
Caregiver - A foster parent and/or child-care facility
staff member.
(2)
Caregiver qualified in behavior intervention - A caregiver
who meets minimum standard qualifications and is further qualified by training
and experience in crisis management and the proper use of de-escalation techniques,
restraints, and/or seclusion allowed in the child-care facility.
(3)
Chemical restraint - The use of any chemical, including
pharmaceuticals, through topical application, oral administration, injection,
or other means, solely for the purpose of immobilizing a child or sedating
a child as a mechanism of control.
(4)
Child - An individual younger than 18 years of age
in placement at a child-care facility.
(5)
Child-care facility - A facility licensed or certified
by the department to provide assessment, care, training, education, custody,
treatment, or supervision for a child who is not related by blood, marriage,
or adoption to the owner or operator of the facility, for 24-hours per day,
whether or not the facility is operated for profit or charges for the services
it offers.
(6)
Child-placing agency - A person, including an organization,
other than the natural parents or guardian of a child who plans for the placement
of or places a child in a child-care facility, agency foster home, agency
foster group home, or adoptive home.
(7)
Department - The Texas Department of Protective and
Regulatory Services (TDPRS).
(8)
Emergency medication - The use of any chemical, including
pharmaceuticals, through topical application, oral administration, injection,
or other means, in an emergency situation solely for the purpose of modifying
a child's behavior.
(9)
Emergency order - An order given in an emergency situation
for the immediate use of restraint, emergency medication, or seclusion. An
emergency order is limited to the specific emergency situation and is not
valid on a standing or PRN order basis.
(10)
Emergency situation - A situation in which it is
immediately necessary to restrain, seclude, or administer emergency medication
to a child to prevent imminent:
(A)
probable death or substantial bodily harm to the child
because the child overtly or continually is threatening or attempting to commit
suicide or serious bodily harm; or
(B)
physical harm to others because of threats, attempts, or
other acts the child overtly or continually makes or commits, and preventative,
de-escalative, or verbal techniques have proven ineffective in defusing the
potential for injury. These situations may include aggressive acts by the
child, including serious incidences of shoving or grabbing others over their
objections. These situations do not include verbal threats or verbal attacks.
(11)
Escorting - Use of physical force by a caregiver
to move or direct a child to another location. Escorting is a type of personal
restraint. Escorting does not include the re-direction or guidance of a child
that does not physically resist moving with the caregiver and the situation
does not escalate into a need to physically force the child to move.
(12)
Imminent significant risk - Risk that is immediate.
Given the situation, a prudent person must be able to conclude that bodily
harm will occur to either the child or to another person if there is no immediate
intervention. Imminent significant risk does include the probability of imminent
harm resulting from a child running away. Imminent significant risk does not
include:
(A)
harm that might occur over time or at a later time; or
(B)
verbal threats or verbal attacks.
(13)
Involuntary self-injury - Involuntary movements
that are potentially self-injurious (e.g., helmets for individuals with seizures,
use of bedrails to prevent individuals from falling out of bed, seat belts
to prevent individuals from falling out of wheelchairs).
(14)
Mechanical restraint - The application of a device
for the purpose of restricting the free movement of the whole or a portion
of a child's body in order to control physical activity.
(15)
Personal restraint - The application of physical
force, including escorting, without the use of any device for the purpose
of restricting the free movement of the whole or a portion of a child's body
in order to control physical activity.
(16)
Physical force - Pressure applied to a child's body
that reduces or eliminates the child's ability to move freely.
(17)
PRN order - Pro re nata or "as needed according to
circumstances" order.
(18)
Protective devices - Mechanical restraints used to
prevent involuntary self-injury, to permit wounds to heal, or to administer
medication prescribed by a physician.
(19)
Quiet time - A procedure in which a child voluntarily
enters and remains in a designated area for a period of time.
(20)
Restraint - The use of physical force alone, the
use of a device, or the use of emergency medication in order to assist a child
in regaining control. This includes personal restraint, mechanical restraint,
and emergency medication as defined in this section.
(21)
Seclusion - The placement of a child, for any period
of time, in a room or other area where the child is alone and is physically
prevented from leaving by a locked or barricaded entryway. An intervention
that restricts a child to a room which involves a caregiver placing his or
her body between the child and the exit from that area (e.g. standing in the
doorway of a room) is not a seclusion because the child is not alone. If a
caregiver uses physical force or a physical barrier to restrain a child or
prevent a child from leaving, the intervention becomes a personal restraint
regulated under §720.1007 of this title (relating to Personal Restraint)
or seclusion regulated under §720.1011 of this title (relating to Seclusion).
(22)
Standing orders - An order or prescription in force
permanently or until specifically changed or canceled.
(23)
Substantial bodily harm - Physical injury serious
enough that a prudent person would conclude that the injury required professional
medical attention. It does not include minor bruising or the risk of minor
bruising or similar forms of minor bodily harm that will resolve healthily
without professional medical attention.
(24)
Supportive devices - Mechanical restraints used to
posturally support an individual or to assist individuals who cannot obtain
and/or maintain normal bodily functioning as outlined in §720.1010 of
this title (relating to Supportive Devices).
(25)
Time out - A procedure in which a child is restricted
to a designated area, including his room, for a period of time for purposes
of behavior modification, but is not physically prevented from leaving by
a locked or barricaded entryway. A caregiver may close a door or stand in
an entryway to enforce the time out, as long as the door is not locked.
§720.1003.Required Behavior Intervention Policies and Procedures.
(a)
All child-care facilities and child-placing agencies must
have policies and procedures consistent with §§720.1001 through
720.1013 of this title (relating to Definitions, Behavior Intervention Precedence,
Required Behavior Intervention Policies and Procedures, Less Restrictive Behavior
Interventions, Restraint and Seclusion: General Requirements, Emergency Medication,
Personal Restraint, Mechanical Restraint, Protective Devices, Supportive Devices,
Seclusion, Behavior Intervention Training, and Evaluation of Behavior Interventions)
addressing behavior interventions.
(b)
These policies and procedures must include a complete description
of permitted behavior interventions.
(c)
The child-care facility and/or child-placing agency must
set, in its behavior intervention policies, the specific intervention techniques
that will be used within the parameters set by minimum standards.
(d)
The facility's behavior intervention procedures must include
all child-care facility and/or child-placing agency requirements for and restrictions
on the use of permitted interventions.
(e)
The facility must notify the Texas Department of Protective
and Regulatory Services of any changes to these policies and procedures before
implementation of the changes.
(f)
The child-care facility and/or child-placing agency must
follow its written behavior intervention policies and procedures.
(g)
The child-care facility must post the behavior interventions
allowed in the child-care facility in a place where the children/clients can
view them, or at admission, must provide each child and parent(s) or managing
conservator with a personal copy of the behavior interventions allowed in
the facility.
(h)
Prior to or at admission, a caregiver must explain to children,
based on their level of functioning and comprehension, the child-care facility's
policies and practices on the use of restraint. The explanation must include
who can use a restraint, the actions caregivers must first attempt to defuse
the situation and avoid the use of restraint, the kinds of situations in which
restraint may be used, the types of restraints authorized by the agency under
which the home operates, when the use of a restraint must cease, what action
the child must exhibit to be released from the restraint, and the way to report
an inappropriate restraint. This explanation must be documented in the child's
record.
(i)
Prior to or at admission, children must be notified, based
on their level of functioning and comprehension, of their right to voluntarily
provide comments on any restraint or seclusion, including the incident that
led to the restraint/seclusion and the manner in which staff intervened, in
which they are the subject or to which they are a witness. This notification
must include an explanation of the process for submitting such comments, which
must be easily understood and accessible. This notification need not be made
after every restraint and seclusion that occurs at the facility as long as
the process for submitting such comments has been made clear and accessible.
For example, a facility could create a standardized form that is easily accessible
or give children the permission to submit such comments on regular paper to
any staff person.
§720.1004.Less Restrictive Behavior Interventions.
(a)
A child-care facility and/or child-placing agency's policies
and procedures must address the use of less restrictive and intrusive behavior
interventions as preventive measures and de-escalating interventions to avoid
the need for the use of restraint or seclusion.
(b)
A child-care facility and/or child-placing agency's policies
and procedures must require that caregivers attempt and prove ineffective
preventive, de-escalative, and less restrictive techniques before the emergency
use of restraint or seclusion.
(c)
Less restrictive measures may include, but are not limited
to, quiet time and time out.
(d)
If a caregiver uses physical force or a physical barrier
to restrain a child or prevent a child from leaving a quiet time or time out,
the intervention becomes a personal restraint regulated under §720.1007
of this title (relating to Personal Restraint) or seclusion regulated under §720.1011
of this title (relating to Seclusion).
§720.1005.Restraint and Seclusion: General Requirements.
(a)
Before the use of restraint or seclusion, a caregiver qualified
in behavior intervention must make the determination that the situation is
an emergency situation. The basis for this decision must be documented.
(b)
Any form of restraint or seclusion may only be administered
by a caregiver qualified in behavior intervention.
(c)
No type of restraint or seclusion may be used as:
(1)
punishment;
(2)
a convenience for caregivers; or
(3)
a substitute for program treatment.
(d)
All reports to Licensing of child death, suicide attempts,
and incidents in which a child experiences substantial bodily harm must include
the complete documentation of any emergency medications, restraints, and/or
seclusions which were implemented within 48 hours prior to the incident.
§720.1006.Emergency Medication.
(a)
General.
(1)
The use of emergency medication is only permitted in emergency
situations and only when ordered by a licensed physician.
(2)
The use of chemical restraint is prohibited.
(3)
The use of chemical sprays, drops, ointments, or any
form of topically-administered substance, including tear gas and pepper sprays,
for emergency medication is prohibited.
(4)
Medications that have a secondary effect of immobilizing
or sedating a child or modifying the behavior of a child, but are administered
solely for medical reasons other than immobilizing or sedating a child or
modifying the behavior of the child (e.g. benadryl for an allergic reaction
or medication to control seizures) are not emergency medications or chemical
restraints and are not regulated as such under this chapter.
(b)
Orders for emergency medication.
(1)
A licensed physician's order allowing emergency medication
must include information on administering the medication and a complete description
of the behaviors (e.g. hitting, biting, kicking) and circumstances under which
medication may be administered to restrain the child.
(2)
The physician ordering emergency medication must first
take into consideration any potential medical contraindications, including
psychiatric contraindications such as sexual abuse, and behavioral contraindications
such as substance abuse.
(3)
The physician ordering emergency medication may use
PRN orders as long as all of the information in paragraphs (1) and (2) of
this subsection is included in the order. PRN orders for emergency medication
must be reviewed by the physician at least every three months.
(4)
If a child has been restrained with emergency medication
more than twice within a 30-day period, the physician, along with the treatment
team and a licensed psychiatrist, must review the child's placement, treatment
plan, and the orders for emergency medication within 30 calendar days of the
third emergency medication. The review must include an examination of alternatives
for managing the child's behavior and the establishment of a plan for reducing
the need for emergency medication. In the instances when a child does not
have a treatment team or a treatment plan, the orders for emergency medication
must be reviewed by the physician, a licensed psychiatrist, and the person
responsible for developing the child's plan of service. In emergency shelters,
the orders for emergency medication must be reviewed by the administrator
of the emergency shelter, the physician, and a licensed psychiatrist. This
review must take place as soon as possible and no later than 30 days after
the third emergency medication. The regularly scheduled review of the child's
plan of service or treatment plan can serve as this review as long as it meets
the requirements of this subsection and takes place no later than 30 days
after the third emergency medication. This review must be documented in the
child's record.
(c)
Implementation of emergency medication.
(1)
A caregiver qualified in behavior intervention must administer
the medication only after conducting an assessment of the precipitating behaviors
and circumstances and determining that an emergency situation exists.
(2)
Emergency medication may be simultaneously implemented
in combination with personal restraint, seclusion, or mechanical restraint
only if specifically allowed by the written orders and only if the specified
restraint(s) or seclusion are allowed in the facility by the rules in this
section. These orders must include clinical justification for the combination.
(A)
Clinical justification for the combination of emergency
medication and personal restraint must be provided by the physician ordering
the emergency medication.
(B)
Clinical justification for the combination of emergency
medication with mechanical restraint must be coordinated and provided by both
the psychiatrist ordering the mechanical restraint and the physician ordering
the emergency medication, if they are different persons.
(C)
Clinical justification for the combination of emergency
medication with seclusion must be coordinated and provided by both the psychiatrist
or psychologist ordering the seclusion and the physician ordering the emergency
medication, if they are different persons.
(3)
A child must be provided with an opportunity
to discuss the situation which led to the need for emergency medication and
the caregiver's reaction to that situation privately as soon as possible and
no later than 48 hours after the cessation of the emergency medication. The
goal of the discussion is to allow the child to discuss his behavior and the
precipitating circumstances that constituted the emergency situation; the
strategies attempted before the use of the restraint and the child's reaction
to those strategies; and the restraint itself and the child's reaction to
the restraint.
(4)
Caregivers involved in the emergency medication must
make every attempt to debrief concerning the incident.
(d)
Documentation of emergency medication.
(1)
The use of emergency medication must be documented in the
child's record as soon as possible and no later than 24 hours after the initiation
of the restraint.
(2)
Documentation must include:
(A)
the child's name;
(B)
a description and assessment of the precipitating circumstances
and the specific behaviors which constituted the emergency situation;
(C)
the use of alternative strategies attempted before the
use of emergency medication and the child's reaction to those strategies;
(D)
the time the emergency medication was administered;
(E)
the name of the caregiver(s) participating in the intervention
that led to the need for emergency medication and the name of the caregiver(s)
who administered the emergency medication;
(F)
the specific medication used;
(G)
any injury the child sustained as a result of the incident
or any adverse effects caused by the use of medication;
(H)
the actions the caregiver took to facilitate the child's
return to normal activities following the end of the emergency medication;
and
(I)
the child's reaction to the opportunity offered in subsection
(c)(3) of this section, the date and time the discussion was offered, the
date and time the discussion took place (if applicable), and the actual discussion
itself, (if applicable).
§720.1007.Personal Restraint.
(a)
General.
(1)
Personal restraint may only be used in emergency situations
as defined in §720.1001 of this title (relating to Definitions), or to
administer intra-muscular medication or other medical treatments prescribed
by a physician. In situations where a child is significantly damaging property,
but is not posing a risk of harm to himself or others, a short personal restraint
may be used to intervene only to immediately prevent the damage and only if
less restrictive techniques have been attempted and have failed. The child
must be released from this restraint as soon as the damaging behavior has
been de- escalated. A personal restraint used to intervene in significant
property damage is regulated as a personal restraint under this chapter.
(2)
The interventions listed in subparagraphs (A)-(C)
of this paragraph are not subject to the requirements of paragraph (4) of
this subsection or subsections (b), (d), and (e) of this section. Any serious
incident report of an injury resulting from a short personal restraint that
is made to Licensing must include documentation of the restraint and the precipitating
circumstances and specific behaviors which led to the restraint.
(A)
Short personal restraints that last no longer than one
minute.
(B)
A short personal restraint used to intervene in a situation
of imminent significant risk when a child's behavior is being restrained because
of an external hazard and caregivers must protect the child, particularly
a young child, from immediate danger - for example, preventing a toddler from
running into the street or coming in contact with a hot stove. The restraint
must end immediately after the danger is averted.
(C)
A short personal restraint used as a physical response
to intervene when a child under the age of five (chronological or developmental
age) demonstrates disruptive behavior, such as a tantrum in a public place.
The physical response must be an appropriate response to the disruptive behavior
and efforts to de-escalate the behavior must have failed. The restraint must
end as soon as the disruptive behavior has been de-escalated.
(3)
Before the use of personal restraint, other preventive,
de-escalative, less restrictive techniques must be attempted and proven ineffective
at defusing the situation.
(4)
A facility must have procedures for addressing the
administration of more than three personal restraints of the same child within
a seven-day period. Procedures for addressing the frequency of the interventions
must include either individualized, written orders allowing for more frequent
restraints, recommendations from the child's treatment team which allow for
more frequent restraints, or a retroactive review of the frequent restraints
and the child's behavior that necessitated the restraints.
(A)
Written orders for personal restraint must meet the requirements
outlined in subsection (b) of this section and must include clinical justification
and a plan for reducing the need for personal restraint.
(B)
Recommendations from a treatment team allowing for more
frequent restraints must meet the requirements outlined in subsection (b)
of this section and must include clinical justification and a plan for reducing
the need for personal restraint.
(C)
A retroactive review of frequent restraints must include
a review of the records of the personal restraints, an examination of alternatives
for managing the child's behavior, and the establishment of a plan for reducing
the need for personal restraint.
(i)
The review must be conducted as soon as possible and no
later than 30 days after the fourth personal restraint by the persons responsible
for the child's plan of service and/or treatment. The review must meet the
requirements of a service plan or treatment team review.
(ii)
The review must include consideration of potential medical
(including psychiatric) contraindications, including a child's history of
physical or sexual abuse. This consideration must be documented.
(iii)
The regularly scheduled review of the child's plan of
service or treatment plan can serve as this review as long as it meets the
requirements of this subsection and takes place no later than 30 days after
the fourth restraint.
(iv)
The review must be documented.
(v)
If there are more than three such reviews within a 90-day
period, the child must be examined by a licensed psychiatrist, a licensed
psychologist, a licensed master social worker with advanced clinical practice,
or a licensed professional counselor. The professional conducting the examination
must make treatment plan or plan of service recommendations regarding the
use of personal restraint.
(b)
Recommendations or written orders for personal restraint.
(1)
A licensed psychiatrist or licensed psychologist may write
orders for the use of personal restraint for a specific child. A child's treatment
team may write recommendations for the use of personal restraint for a specific
child. Orders and treatment team recommendations must state that personal
restraint may only be used in emergency situations.
(2)
The psychiatrist or psychologist ordering personal
restraint or the treatment team recommending personal restraint must first
take into consideration any potential medical (including psychiatric) contraindications,
including a child's history of physical or sexual abuse. This consideration
must be documented in the child's records.
(3)
The psychiatrist or psychologist ordering personal
restraint may use PRN orders. PRN orders for personal restraint must be reviewed
by the psychiatrist or psychologist at least every three months. The review
must be documented in the child's record.
(4)
Orders and treatment team recommendations for personal
restraint must designate the specific procedure authorized, including any
specific measures for ensuring the child's health, safety, and well-being,
and the protected, private nature of the setting.
(5)
Orders and treatment team recommendations must include
the circumstances under which the intervention may be used, instructions for
observation of the child while in restraint, the behaviors that indicate the
child is ready to be released from restraint, the number of times a child
may be restrained in a seven-day period, and the amount of time the child
may be restrained regardless of behaviors exhibited.
(c)
Implementation of personal restraint.
(1)
When personal restraint is appropriate, it must be discontinued
as soon as the child's behavior no longer constitutes an emergency situation.
(2)
Personal restraint must be initiated in a way that
minimizes the risk of physical discomfort, harm, or pain to the child. Only
the minimal amount of reasonable and necessary physical force may be used
to implement personal restraint. During any personal restraint, a caregiver
qualified in behavior intervention must monitor the child's breathing and
other signs of physical distress and take appropriate action to ensure adequate
respiration, circulation, and overall well-being. The caregiver monitoring
the child should not be the same caregiver that is restraining the child.
Appropriate action includes responding when a child indicates he cannot breathe.
Any personal restraint that employs a technique listed in subparagraphs (A)-(D)
of this paragraph is prohibited:
(A)
restraints that place a child face-down and place pressure
on the child's back;
(B)
restraints that obstruct the airways of the child or impair
the breathing of the child;
(C)
restraints that obstruct the caregiver's view of the child's
face; or
(D)
restraints that restrict the child's ability to communicate.
(3)
For children and adolescents ages 9 to 17 years,
maximum time in personal restraint must not exceed one hour. For children
under age nine years, a personal restraint must not exceed 30 minutes.
(4)
Continuation of personal restraint(s) beyond the stated
maximum is permitted only if an order from a licensed psychiatrist allowing
for the continuation exists. Such an order must meet all of the criteria in
subsection (b) of this section and must include a clinical justification for
the amount of time it permits the child to be restrained.
(5)
Only a caregiver qualified in behavior intervention
may apply personal restraint.
(6)
When a child must be personally restrained, the caregiver
must consider the characteristics of the immediate physical environment and
the permitted forms of personal restraint and act to protect the child's safety.
Caregivers must make every effort to act to protect the child's privacy, including
shielding the child from onlookers. Caregivers must make every effort to act
to protect the child's personal dignity and well-being, including ensuring
that the child's body is appropriately covered.
(7)
If an emergency health situation occurs during personal
restraint, the child must be released immediately and treatment obtained.
(8)
As soon as possible after personal restraint is started,
appropriate caregiver(s) must explain to the child in restraint the behaviors
the child must exhibit to be released from the restraint or have the restraint
reduced, and permit the child to make suggestions about what actions the caregiver(s)
can take to help the child de-escalate.
(9)
If the child does not appear to understand what action
he must take to be released from the restraint, the caregiver(s) must attempt
to re-explain it every 15 minutes until understanding is reached or the child
is released from restraint.
(10)
Personal restraint may be simultaneously implemented
in combination with emergency medication only if specifically allowed by written
orders and only if the specified restraint(s) is allowed in the facility by
the rules in this section. These orders must include clinical justification
for the combination. The clinical justification for the combination of emergency
medication and personal restraint must be provided by the physician ordering
the emergency medication.
(d)
Personal restraint follow-up.
(1)
When a child is released from personal restraint, the caregiver(s)
must take appropriate actions to help the child return to normal activities.
A child does not have to return to the activities he was engaged in prior
to the restraint or the activities in which the group is participating at
the time the child is released from restraint. The actions of the caregiver(s)
must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to discuss the
situation which led to the need for personal restraint and the caregiver's
reaction to that situation privately as soon as possible and no later than
48 hours after the release from restraint. The goal of the discussion is to
allow the child to discuss his behavior and the precipitating circumstances
that constituted the emergency situation; the strategies attempted before
the use of the restraint and the child's reaction to those strategies; and
the restraint itself and the child's reaction to the restraint.
(2)
Staff involved in the personal restraint must
make every attempt to debrief concerning the incident.
(e)
Documentation of personal restraint. The use of personal
restraint must be documented as soon as possible and no later than 24 hours
after the initiation of the restraint. Documentation must include:
(1)
the child's name;
(2)
a description and assessment of the precipitating
circumstances and the specific behaviors which constituted the emergency situation,
and if applicable, the specific behaviors which continued to constitute an
emergency situation;
(3)
the use of alternative strategies attempted before
the use of personal restraint and the child's reaction to those strategies;
(4)
the time the restraint began;
(5)
the name of the caregiver(s) participating in the
restraint;
(6)
the specific restraint techniques used;
(7)
the de-escalating strategies employed during the restraint;
(8)
the total length of time the child was restrained;
(9)
all attempts to explain to the child what behaviors
were necessary for release from the restraint;
(10)
any injury the child sustained as a result of the
incident or the use of restraint, and the care or treatment provided;
(11)
the actions the caregiver(s) took to facilitate the
child's return to normal activities following release from restraint; and
(12)
the child's reaction to the opportunity offered in
subsection (d)(1)(C) of this section, the date and time the discussion was
offered, the date and time the discussion took place (if applicable), and
the actual discussion itself, (if applicable).
§720.1008.Mechanical Restraint.
(a)
General.
(1)
The use of mechanical restraints is prohibited in all child-care
facilities except residential treatment centers and institutions serving mentally
retarded children.
(2)
Mechanical restraints may only be used in emergency
situations and only under orders that meet the requirements of subsection
(b) of this section.
(3)
Before the emergency use of a mechanical restraint,
other preventive, de-escalative, less restrictive techniques must be attempted
and proven ineffective at defusing the situation.
(4)
Only commercially available devices specifically designed
for the safe and comfortable restraint of humans may be used as mechanical
restraints. Any alteration of commercially available devices must be reviewed
and approved by a licensed psychiatrist who must:
(A)
base the approval on the individual child's special physical
needs; and
(B)
take into consideration any potential medical contraindications,
including psychiatric contraindications, for example history of sexual abuse.
(5)
Mechanical restraint devices must be inspected
after each use to ensure that they are in good repair and are free from tears
or protrusions that may cause injury. Damaged devices may not be used to restrain
a child.
(6)
The following types of devices must not be used to
restrain children:
(A)
those with metal wrist or ankle cuffs;
(B)
those with rubber bands, rope, cord, or padlocks or key
locks as fastening devices;
(C)
long ties, such as leashes; or
(D)
bed sheets or blankets.
(b)
Mechanical restraint orders.
(1)
No form of mechanical restraint may be used with a child
without emergency orders from a licensed psychiatrist.
(2)
The psychiatrist ordering mechanical restraint must
first take into consideration any potential medical and or psychiatric contraindications,
including a child's history of physical or sexual abuse. This consideration
must be documented in the child's records.
(3)
PRN orders for mechanical restraints are not permitted.
(4)
Orders for mechanical restraint must designate the
specific device or devices authorized, including any specific measures required
to ensure the child's health, safety, and well being.
(5)
Orders must include the circumstances under which
the intervention may be used, instructions for observation of the child while
in restraint, the behaviors that indicate the child is ready to be released
from restraint, and the maximum amount of time the child may be restrained
regardless of behaviors exhibited.
(6)
For children and adolescents ages 9 to 17 years, maximum
time in mechanical restraint must not exceed one hour. For children under
age nine years, this must not exceed 30 minutes. If a child is released from
mechanical restraint and then restrained again within the same 12-hour period,
the time spent in restraint is cumulative and may not exceed the stated maximums.
(7)
Continuation beyond the maximum amount of time permitted
by the original order requires authorization from the prescribing psychiatrist
and must not exceed 12 hours total. Authorization to extend must be obtained
before the end of the time period or the restraint must be discontinued. If
authorization for continuation is obtained over the telephone, continuation
orders must be documented and the psychiatrist must personally sign, date,
and indicate the time on the telephone order within 72 hours of the time the
order was issued. For additional regulations required when the restraint is
continued beyond the maximum amount of time, see subsection (c)(10) of this
section.
(8)
If a child has been mechanically restrained for more
than three hours or has been mechanically restrained more than twice within
a seven-day period, the ordering psychiatrist, along with the treatment team,
must review the child's placement, treatment plan, and the orders for mechanical
restraints as soon as possible and no later than 30 days after the mechanical
restraint that lasted more than three hours or the third mechanical restraint.
The review must include an examination of alternatives for managing the child's
behavior and the establishment of a plan for reducing the need for mechanical
restraint. The regularly scheduled review of the child's plan of service or
treatment plan can serve as this review as long as it meets the requirements
of this subsection and takes place no later than 30 days after the mechanical
restraint that lasted more than three hours or the third mechanical restraint.
The review must be documented in the child's record.
(c)
Implementation of mechanical restraint.
(1)
Mechanical restraint must not be implemented without the
required orders.
(2)
When mechanical restraint is the appropriate intervention,
it must be discontinued as soon as the child is no longer a danger to himself
or others.
(3)
Mechanical restraint must be initiated in a way that
minimizes the risk of physical discomfort, harm, or pain to the child. Only
the minimal amount of reasonable and necessary physical force may be used
to implement mechanical restraint.
(4)
Only a caregiver qualified in behavior intervention
may apply mechanical restraint.
(5)
The child-care facility and/or child-placing agency
must provide a protected, private, observable environment for a child placed
in restraint. The environment must safeguard the child's personal dignity
and well being.
(6)
If an emergency health situation occurs during mechanical
restraint, the child must be released immediately and treatment obtained.
(7)
As soon as possible after mechanical restraint is
started, the appropriate caregiver(s) must explain to the child in restraint
the behaviors the child must exhibit to be released from the restraint or
have the restraint reduced and permit the child to make suggestions about
what actions the caregiver(s) can take to help the child de-escalate.
(8)
If the child does not appear to understand what actions
he must take to be released from the restraint, a caregiver must attempt to
re-explain it every 15 minutes until understanding is reached or the child
is released from restraint.
(9)
A caregiver qualified in behavior intervention must
provide continuous face-to-face observation of a child in mechanical restraint.
In addition to the continuous observation, a caregiver qualified in behavior
intervention must ensure that the child has adequate respiration and circulation
at all times. Checks for circulation, skin color, and respiration must be
conducted at least every 15 minutes by a caregiver qualified in behavior intervention,
in addition to continual observation.
(10)
If a mechanical restraint continues, with the appropriate
orders specified in subsection (b)(7) of this section, beyond the maximum
one hour, a child must be allowed:
(A)
bathroom privileges at least once every two hours;
(B)
an opportunity to drink water or other appropriate liquids
at least once every two hours;
(C)
regularly prescribed medications unless otherwise ordered
by the physician;
(D)
regularly scheduled meals and snacks served in a safe and
appropriate manner;
(E)
an environment that is free of safety hazards, adequately
ventilated during warm weather, adequately heated during cold weather, and
appropriately lighted; and
(F)
an opportunity for range of motion or exercise for at least
five minutes of each hour a child is in restraint.
(11)
Mechanical restraint may be simultaneously implemented
in combination with emergency medication only if specifically allowed by the
written orders and only if the specified restraint(s) or seclusion are allowed
in the facility by the rules in this section. These orders must include clinical
justification for the combination. The clinical justification must indicate
what behaviors continued to be exhibited that constituted an emergency despite
the mechanical restraint. The clinical justification for the combination of
emergency medication with mechanical restraint must be coordinated and provided
by both the psychiatrist ordering the mechanical restraint and the physician
ordering the emergency medication, if they are different persons. Mechanical
restraint may not be simultaneously implemented in combination with seclusion.
(d)
Release from mechanical restraint.
(1)
When a child exhibits release behaviors described in the
written order, a caregiver qualified in behavior intervention must release
the child from restraint. The child must be released no later than five minutes
after the child begins exhibiting the required behaviors.
(2)
If a child falls asleep in mechanical restraint, he
must be released from the restraint. The child must then remain under continuous
observation until he awakens and is evaluated.
(e)
Mechanical restraint follow up.
(1)
When a child is released from mechanical restraint, the
caregiver(s) must take appropriate actions to help the child return to normal
activities. This must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to discuss the
situation which led to the need for mechanical restraint and the caregiver's
reaction to that situation privately as soon as possible and no later than
48 hours after the release from restraint. If the child refuses the opportunity
to discuss the restraint, he shall be allowed to discuss the matter at any
subsequent time. The goal of the discussion is to allow the child to discuss
his behavior and the precipitating circumstances that constituted the emergency
situation; the strategies attempted before the use of the restraint and the
child's reaction to those strategies; and the restraint itself and the child's
reaction to the restraint.
(2)
Staff involved in the mechanical restraint must
make every attempt to debrief concerning the incident.
(f)
Documentation of mechanical restraint. The use of mechanical
restraint must be documented as soon as possible and no later than 24 hours
after the initiation of the restraint. Documentation must include:
(1)
the child's name;
(2)
a description and assessment of the precipitating
circumstances and the specific behaviors which constituted the initial emergency
situation, and if applicable, the specific behaviors which continued to constitute
an emergency situation;
(3)
the use of alternative strategies attempted before
the use of mechanical restraint and the child's reaction to those strategies;
(4)
the time restraint began;
(5)
the name of caregiver(s) participating in the restraint;
(6)
the specific restraint device used;
(7)
the de-escalating strategies employed during the restraint;
(8)
the total length of time the child was restrained;
(9)
continuous observation and regular respiration and
circulation checks;
(10)
all attempts to explain to the child what behaviors
were necessary for release from the restraint;
(11)
any injury the child sustained as a result of the
incident or the use of restraint;
(12)
the actions that the caregiver(s) took to facilitate
the child's return to normal activities following release from restraint;
and
(13)
the child's reaction to the opportunity offered in
subsection (e)(1)(C) of this section, the date and time the discussion was
offered, the date and time the discussion took place (if applicable), and
the actual discussion itself, (if applicable).
§720.1011.Seclusion.
(a)
General.
(1)
The use of seclusion is prohibited in all child-care facilities
except residential treatment centers, child-care facilities serving children
with autistic-like behavior, and emergency shelters.
(2)
Seclusion may only be used in emergency situations.
Emergency shelters may only use seclusion in an emergency situation and only
until the child is no longer a danger to himself or others or until immediate
medical attention can be obtained.
(3)
Before the emergency use of seclusion, other preventive,
de-escalative, less restrictive techniques must be attempted and proven ineffective
at defusing the situation.
(b)
Seclusion orders.
(1)
No form of seclusion may be used with a child without appropriate
orders in the child's record. Only a licensed psychiatrist or licensed psychologist
may write orders for the use of seclusion for a specific child. The professional
ordering seclusion must first take into consideration any potential medical
and or psychiatric contraindications, including a child's history of physical
or sexual abuse. This consideration must be documented in the child's records.
Orders for seclusion are not required in an emergency shelter.
(2)
A licensed psychiatrist ordering seclusion may use
PRN orders. PRN orders are not permitted to extend the maximum amount of time
allowed in seclusion as outlined in paragraph (5) of this subsection. PRN
orders for seclusion must be reviewed by the psychiatrist at least every three
months. PRN orders from a licensed psychologist are not permitted.
(3)
Orders for seclusion must include any specific measures
for ensuring the child's health, safety, and well being.
(4)
Orders must include the circumstances under which
the seclusion may be used, any instructions for heightened observation of
the child while in seclusion, the behaviors that indicate the child is ready
to be released from seclusion, and the maximum amount of time the child may
be secluded regardless of behaviors exhibited.
(5)
For children and adolescents ages 9 to 17 years, maximum
time in seclusion must not exceed two hours. For children under age nine years,
this must not exceed one hour. If a child is released from seclusion and then
secluded again within the same 12-hour period, the time spent in seclusion
is cumulative and may not exceed the stated maximums.
(6)
Continuation beyond the maximum amount of time permitted
by the original order requires authorization from the prescribing psychiatrist
or psychologist and is allowed only subsequent to a face-to-face evaluation
with the child by a caregiver qualified in behavior intervention. Authorization
to extend must be obtained before the end of the time period or seclusion
must be discontinued. If authorization for continuation is obtained over the
telephone, continuation orders must be documented and the psychiatrist or
psychologist must personally sign, date, and indicate the time of the telephone
order within 24 hours of the time the order was issued. For additional regulations
required when the seclusion is continued beyond the maximum amount of time,
see subsection (c)(12) of this section.
(7)
If a child has been secluded for more than 12 hours
or has been secluded more than twice within a seven-day period, the ordering
psychiatrist or psychologist, along with the treatment team, must review the
child's placement, treatment plan, and the orders for seclusion as soon as
possible and no later than 30 days after the seclusion that lasted more than
12 hours or the third seclusion. The review must include an examination of
alternatives for managing the child's behavior and the establishment of a
plan for reducing the need for seclusion. The regularly scheduled review of
the child's plan of service or treatment plan can serve as this review as
long as it meets the requirements of this subsection and takes place no later
than 30 days after the seclusion that lasted more than 12 hours or the third
seclusion. The review must be documented in the child's record.
(c)
Implementation of seclusion.
(1)
When seclusion is the appropriate intervention, it must
be discontinued as soon as the child is no longer a danger to himself or others.
(2)
Seclusion must be initiated in a way that minimizes
the risk of physical discomfort, harm, or pain to the child. Only the minimal
amount of reasonable and necessary physical force may be used to implement
seclusion.
(3)
Only a caregiver qualified in behavior intervention
may place a child in seclusion.
(4)
Seclusion must not be implemented without the required
orders, except for the emergency use of seclusion in an emergency shelter.
If orders do not exist for a child in residential treatment centers or child-care
facilities serving children with autistic-like behavior and seclusion is necessary
to protect the child from endangering himself or others, a caregiver qualified
in behavior intervention may place a child in seclusion, but must obtain and
document a licensed psychiatrist's or psychologist's verbal order by telephone
no later than one hour following initiation of the seclusion. The psychiatrist
or psychologist must personally sign, time, and date the telephone order within
24 hours of the time the order was issued.
(5)
The child-care facility and/or child-placing agency
must provide a protected, private, observable environment for a child placed
in seclusion. The environment must safeguard the child's personal dignity
and well being.
(6)
A room used for seclusion must have at least 40 square
feet of floor space, be free of safety hazards, be adequately ventilated during
warm weather, be adequately heated during cold weather, and be appropriately
lighted.
(7)
The seclusion room must have at least a mat and bedding,
except when the psychiatrist writes orders to the contrary specific to a child.
(8)
If an emergency health situation occurs during seclusion,
the child must be released immediately and treatment obtained.
(9)
As soon as possible after seclusion is started, the
caregiver(s) must explain to the child in seclusion the behaviors the child
must exhibit to be released from seclusion, and permit the child to make suggestions
about what actions the caregiver(s) can take to help the child de-escalate
the situation.
(10)
If the child does not appear to understand what actions
he must take to be released from seclusion, a caregiver must re- explain it
every 15 minutes until understanding is reached or the child is released from
seclusion.
(11)
Caregivers must continuously observe a child placed
in seclusion. This observation can take place through such means as a window
or a one-way mirror.
(12)
If a seclusion continues, with the appropriate orders
specified in subsection (b)(6) of this section, beyond the maximum two hours,
a child must be allowed:
(A)
bathroom privileges at least once every two hours;
(B)
an opportunity to drink water or other appropriate liquids
at least once every two hours;
(C)
regularly prescribed medications unless otherwise ordered
by the physician; and
(D)
regularly scheduled meals and snacks served in a safe and
appropriate manner.
(13)
Seclusion may be simultaneously implemented
in combination with emergency medication only if specifically allowed by the
written orders and only if the specified restraint(s) or seclusion are allowed
in the facility by the rules in this section. These orders must include clinical
justification for the combination. The clinical justification for the combination
of emergency medication with seclusion must be coordinated and provided by
both the psychiatrist or psychologist ordering the seclusion and the physician
ordering the emergency medication, if they are different persons. Seclusion
may not be simultaneously implemented in combination with mechanical restraint.
(d)
Release from seclusion.
(1)
When a child exhibits release behaviors described in the
written order, a caregiver qualified in behavior intervention must release
the child from seclusion. The child must be released no later than five minutes
after the child begins exhibiting the required behaviors. Children in emergency
shelters must be released as soon as they are no longer a danger to themselves
or others, or until immediate medical attention can be obtained.
(2)
If a child falls asleep in seclusion, the door must
be unlocked. The child must remain under continuous observation until he awakens
and is evaluated.
(e)
Seclusion follow up.
(1)
When a child is released from seclusion, the caregiver(s)
must take appropriate actions to help the child return to normal activities.
This must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to discuss the
situation which led to the need for seclusion and the caregiver's reaction
to that situation privately as soon as possible and no later than 48 hours
after the release from seclusion. The goal of the discussion is to allow the
child to discuss his behavior and the precipitating circumstances that constituted
the emergency situation; the strategies attempted before the use of the restraint
and the child's reaction to those strategies; and the restraint itself and
the child's reaction to the restraint.
(2)
This subsection does not apply to emergency shelters.
(3)
Staff involved in the seclusion must make every attempt
to debrief concerning the incident.
(f)
Documentation of seclusion. The use of seclusion must be
documented as soon as possible and no later than 24 hours after initiating
the seclusion. Documentation must include:
(1)
the child's name;
(2)
a description of the precipitating circumstances and
the specific behaviors which constituted an emergency situation;
(3)
the use of alternative strategies attempted before
the use of seclusion and the child's reaction to those strategies;
(4)
the time seclusion began;
(5)
the name of the caregiver(s) participating in the
seclusion;
(6)
the de-escalating strategies employed during seclusion;
(7)
the total length of time the child was secluded;
(8)
all attempts to explain to the child what behaviors
were necessary for release from the seclusion;
(9)
any injury the child sustained as a result of the
incident or the use of seclusion;
(10)
the actions that the caregiver(s) took to facilitate
the child's return to normal activities following release from seclusion;
and
(11)
the child's reaction to the opportunity offered in
subsection (e)(1)(C) of this section, the date and time the discussion was
offered, the date and time the discussion took place (if applicable), and
the actual discussion itself, (if applicable).
§720.1012.Behavior Intervention Training.
(a)
Training policies and procedures. All child-care facilities
and child-placing agencies must have a training policy for behavior intervention.
The policy must include the amount and type of training required for different
levels of caregivers (if applicable), training content, and how the training
will be delivered. Child-care facilities and child-placing agencies must require
training in the use of restraints or seclusion allowed by the child-care facility
and/or child-placing agency's behavior intervention policies.
(b)
Pre-service training.
(1)
All new caregivers who will have contact with children
must complete a pre-service training curriculum of behavior intervention that
meets the requirements in paragraphs (3)-(7) of this subsection prior to being
responsible for the care of children.
(2)
New caregivers who already meet both of the requirements
set out in subparagraphs (A) and (B) of this paragraph are not required to
complete the required pre-service training. These qualifications must be documented
in the caregiver's record. The new caregiver has:
(A)
been employed in a residential child care setting within
the previous year; and
(B)
received training within the previous year in the types
of behavior intervention used at the child-care facility and/or child- placing
agency where the caregiver will be employed, and the new caregiver can demonstrate
his or her knowledge and understanding of the training.
(3)
The training must be direct delivery training
provided by a qualified instructor. The use of video instruction as part of
a training curriculum is considered direct delivery training as long as the
instructor is available for questions during the training. Training on the
implementation of restraints or seclusion must be delivered directly by the
instructor and cannot be delivered by a video.
(4)
A qualified instructor is an instructor certified
in a recognized method of therapeutic behavior intervention or is an instructor
who is able to document knowledge of the subject material, training delivery
methods and techniques, and training evaluation or assessment methods and
techniques.
(5)
The training must be competency-based and the trainer
must require participants to demonstrate skill competency at the end of the
training.
(6)
Facilities whose policies do not allow for the use
of any type of restraint or seclusion, including personal restraint, must
require a pre-service training that meets the curriculum requirements in subparagraphs
(A)-(G) of this paragraph. Facilities whose policies allow for the use of
any one type of restraint or seclusion must require pre-service training that
meets all of the curriculum requirements listed in this paragraph and require
that at least three quarters of the pre-service training focus on early identification
of potential problem behaviors and strategies and techniques of less restrictive
interventions. The training components are:
(A)
developing and maintaining an environment or milieu that
supports positive constructive behaviors;
(B)
causes of behaviors potentially harmful to self or others
in children and adolescents including aspects of the environment or milieu;
(C)
early signs of behaviors that may become dangerous to self
or others;
(D)
strategies and techniques the child can use to avoid harmful
behaviors;
(E)
teaching children to use the strategies and techniques
to avoid harmful behavior and supporting the children's efforts;
(F)
less restrictive strategies caregivers can use to intervene
in potentially harmful behaviors;
(G)
less restrictive strategies caregivers can use to work
with oppositional children; and
(H)
strategies for re-integration of children into the milieu
after restraint or seclusion.
(7)
The remainder of the pre-service behavior intervention
training for caregivers who are providing care in a home or facility whose
policies allow for the use of any one type of restraint or seclusion must
focus on the:
(A)
different roles and responsibilities of caregivers qualified
in behavior intervention and caregivers who are not qualified in behavior
intervention; and
(B)
safe implementation of the restraints and/or seclusion
permitted by the rules in this chapter and by the child-care facility and/or
child-placing agency's policies and procedures.
(8)
If a child-care facility and/or child-placing
agency's behavior intervention policies do not allow for a certain type of
restraint, the child-care facility and/or child-placing agency does not have
to offer training in the use of that restraint or seclusion.
(9)
The pre-service training curriculum must include drawings,
photographs, or videos of each personal restraint intervention permitted by
the child-care facility and/or child-placing agency policy.
(10)
The pre-service training curriculum must include
drawings or photographs of each mechanical restraint device permitted by the
child-care facility policy and complete specifications from the manufacturer.
Any modifications to the specifications from the manufacturer on the use of
a mechanical restraint device must be shown along with the required approval
from a licensed psychiatrist.
(c)
Annual training.
(1)
All caregivers having contact with children must complete
at least four clock hours annually of behavior intervention training specific
to the behavior interventions allowed by the facility's policies.
(2)
Annual training must focus on reinforcing basic principles
covered in the initial training and developing and refining caregivers' skills.
The facility may determine the content of the annual training based on the
facility's evaluation of behavior intervention needs in the facility or homes.
Training in any of the areas specified in subsection (b)(6) of this section
and training in the proper use and implementation of restraints and/or seclusion
is acceptable.
(3)
The four clock hours will be considered part of the
overall annual training requirements.
(4)
All annual training must be direct delivery training
provided by a qualified instructor, as described in subsection (b)(4) of this
section.
(d)
Caregiver qualified in behavior intervention.
(1)
Only caregivers designated as caregivers qualified in behavior
intervention may implement any form of restraint or seclusion.
(2)
The child-care facility and/or child-placing agency
must have policies that specify the qualifications for assuming the responsibility
for restraint and/or seclusion implementation, including required experience
and training requirements.
(3)
If a residential treatment center or institution serving
mentally retarded children allows the use of mechanical restraint, the facility
must address the caregivers qualified to implement mechanical restraint separately.
These caregivers must be registered nurses, at a minimum.
(4)
All child-care facility and/or child-placing agency's
policies must be compliant with the types of interventions the child-care
facility and/or child-placing agency is permitted to use under minimum standards
and the needs of the specific population for whom the child-care facility
and/or child-placing agency provides care.
(5)
The policy on caregivers qualified in behavior intervention
must also include an evaluation component for determining when a specific
caregiver meets the requirements of a caregiver qualified in behavior intervention,
and an on-going program to evaluate caregivers qualified in behavior intervention
and the use of restraint and seclusion. In regards to agency homes, the child-placing
agency, not its agency homes, is responsible for these evaluations.
§720.1013.Evaluation of Behavior Interventions.
(a)
Individual case evaluations. For each child in care, the
child-care facility and/or child-placing agency must evaluate the use and
effectiveness of behavior intervention techniques as part of each child's
plan of service or treatment plan. The evaluation must take place at each
review of the child's plan of service or treatment plan. The evaluation must
focus on:
(1)
the frequency, patterns, and effectiveness of specific
behavior interventions;
(2)
strategies to reduce the need for behavior interventions
overall; and
(3)
specific strategies to reduce the need for use of
personal, emergency medication, and/or mechanical restraint or seclusion,
where applicable.
(b)
Child-care facility and/or child-placing agency policy
evaluation.
(1)
The child-care facility and/or child-placing agency must
develop an overall evaluation program with the following objectives:
(A)
development and maintenance of an environment or milieu
that supports positive and constructive behaviors on the part of children
in care;
(B)
safe, appropriate, and effective use of any form of restraint
or seclusion; and
(C)
elimination or reduction of physical injuries and any other
negative impact of necessary restraints or seclusions on the child's behaviors
or emotional development.
(2)
The child-care facility and/or child-placing
agency evaluation must include an evaluation of the facility's policies and
procedures, including the facility's training policy and curriculum.
(3)
The results of the regular evaluation must be made
available to the Texas Department of Protective and Regulatory Services. In
regards to agency homes, the child-placing agency, not its agency homes, is
responsible for these evaluations.
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 May 26, 2000.
TRD-200003769
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: September 1, 2000
Proposal publication date: February 11, 2000
For further information, please call: (512) 438-3437
Chapter 809.
CHILD CARE AND DEVELOPMENT
The Texas Workforce Commission (Commission) adopts amendments to §§809.12,
809.46 and 809.124 relating to Child Care Services. Sections 809.12 and 809.46
are adopted with changes to the proposed text as published in the March 31,
2000, issue of the
Texas Register
(25 TexReg
2776). Section 809.124 is adopted without changes and will not be republished.
Purpose: The purpose of the amendments is to remove references to the categorical
child care plans that local workforce development boards (Boards) have previously
submitted to the Commission, because the Commission is designing an integrated
planning process to consolidate the separate plans relating to child care
and workforce training and services into one integrated plan for each local
workforce development area (workforce area). The Commission anticipates that
a more integrated planning process will assist Boards in coordinating and
utilizing local funds in a more efficient manner.
Goals: Child care services are provided to low-income families to create
and promote long-term self-sufficiency by enabling parents to work or attend
educational or training activities. Such services offer affordable, accessible,
and quality child care that promotes the physical, social, emotional, and
intellectual development and safety of children. Recognizing that parents
best understand the needs of their children, these services empower parents
to make informed choices regarding child care that best suit the family's
needs. The Commission also advocates improvements in the availability, affordability,
and quality of child care while supporting health, safety, licensing, and
regulatory standards for child care providers. The goal is to coordinate workforce
services, to leverage private and public funds at the local level, and to
fully integrate child care for low-income families with the network of workforce
training and services under the administration of the Boards.
Integrated Plans: To assist the Boards in more fully incorporating and
coordinating child care services into a comprehensive one-stop network of
services provided to help low-income families as they move toward self-sufficiency
by providing child care subsidies to parents to support work, training, or
education, the Commission is developing an integrated planning process for
Boards that would remove the need for a separate child care plan and replace
that separate plan with an integrated workforce training and services plan.
Background: The purpose of the child care rules is to fully integrate child
care services for low-income families with the network of workforce training
and services under the administration of the Boards. Child care services are
subsidized for families seeking to become independent from, or who are at
risk of becoming dependent on, public assistance while parents are either
working or in educational or training activities.
In January 1999, the Commission adopted changes to the former child care
rules for implementation by the Boards by September 1, 1999, which allowed
the Boards more flexibility in tailoring the design and management of the
delivery of child care services to best meet the needs of the residents and
employers in the workforce areas. In preparation for implementing the changes
set forth in the rules applicable on September 1, 1999, the Boards submitted
specific child care plans to the Commission by July 1, 1999. In the child
care plans, the Boards assessed the need for child care in their workforce
areas, tailored a unique plan for child care service delivery, and described
a method for overseeing the delivery of this vital service to ensure families'
steady transition to self-sufficiency.
The revisions to the rules in January 1999 incorporated changes necessitated
by federal regulations set forth in 45 CFR Parts 98 and 99. The rules provided
flexibility for the Boards to fulfill their responsibilities in meeting the
needs of parents and children residing in the workforce areas. Prior to the
revisions of the rules, the Commission previously set prescribed methods for
compliance with federal and state statutes. The changes to the rules enhanced
the ability of the Boards to develop policies and procedures for administering
child care services that best fit the local needs. For example, the level
of state median income for eligibility was changed to match the criteria contained
in the federal regulations at 45 CFR Parts 98 and 99, which is an income limit
that does not exceed 85% of the state median income for a family of the same
size. Boards were able to establish local policies that set an eligible income
level as equal to or lower than the 85% level. The Commission encouraged the
Boards to set local policies that would use the funds in the most effective
manner to assist people who are transitioning off of public assistance or
who are at risk of becoming dependent on public assistance.
The enhanced flexibility afforded to the Boards ensures that Board policies
maximize the use of funds by tailoring the design and management of the delivery
of child care services to meet the specific needs of each workforce area.
To assist the Boards in adapting to the increased flexibility provided under
state law and rules, the Commission offers continued training and technical
assistance to the Board members and staff regarding child care services.
Continuing Board Responsibilities: The Boards will continue to develop
and maintain policies and procedures for the design and management of the
delivery of child care services that address matters including, but not limited
to: parent co-payments, attendance policies, eligibility procedures, service
priorities, provider reimbursement rates, and other methods to utilize the
funds in a manner that addresses the needs of the workforce area efficiently
and effectively. Some methods of developing these policies have included Boards
examining the past practices of the Commission, examining recommended best
practices, or independently tailoring policies to meet local needs.
Coordinating Planning and Policies: In developing and modifying an integrated
plan and local policies for the design and management of the delivery of child
care services, the Boards shall seek input from the local entities as indicated
in 45 CFR Parts 98 and 99, and particularly §98.14, to coordinate with
state, federal, and local child care and early childhood development programs,
entities responsible for public health and public education, representatives
of local government, and members of the public, such as parents, employers,
and providers.
In addition, the Boards are required to design and manage the delivery
of child care services subject to the provisions of Texas Government Code,
Chapter 2308, as implemented by the Commission through 40 TAC Chapter 801
relating to Local Workforce Development Boards. Boards will continue to ensure
access to child care services in their networks of one-stop centers. The Boards
may continue to choose to integrate intake and eligibility with the services
handled by career center operators or to obtain other contractors. Telephone
access at the career centers to intake and eligibility contractors will continue
to meet the requirements of Texas Government Code, Chapter 2308.251
The Commission continues to provide the Boards with maximum flexibility,
in accordance with state and federal law and regulations, to design and manage
a service mechanism that will assist the greatest number of families in accessing
the most affordable, quality child care in each workforce area. In their role
as policymakers, the Boards are subject to all the requirements of the Texas
Open Meetings Act, thus ensuring that parents, providers, contractors and
potential contractors, employers, and the public in general will have the
opportunity to participate and comment on proposed child care administrative
policies.
Boards will also continue to be required to follow the procedures for
making changes to each Board's integrated workforce training and services
plan, including the strategic and operational portions consistent with Texas
Government Code, Chapter 2308, and 40 TAC Chapter 801 relating to Local Workforce
Development Boards.
The Commission received comments from the Dallas Workforce Development
Board and the North Central Workforce Development Board. The comments were
generally supportive of the rules with some requested changes. The purpose
of any modifications to the rules are set forth in the responses to comments
that follow or are for the purpose of clarifying the language of the rules.
Modifications to the rules resulting from comments are set forth in the
responses to comments or to clarifying the language.
Comment: One commenter supported the Commission's efforts and vision in
the proposed rules and the combining of child care planning with planning
for other Board-administered programs. The commenter indicated that coordination
is critical, but it is often difficult to communicate within the community.
As a realization of the obstacles inherent in this activity, the commenter
recommended a slight change in the language of § 809.12(c), Coordinating
Planning and Polices. Instead of "...and shall maintain written documentation
of that coordination," the commenter recommended "...and shall maintain written
documentation of coordination efforts."
Response: The Commission appreciates the commenter's support and agrees
that coordination efforts are critical in the delivery of child care services.
The Commission recognizes that Boards cannot mandate the participation of
other organizations in the development of local planning and policy. The rules
incorporate the language change recommended by the commenter.
Comment: One commenter supported the Commission's efforts to further integrate
the design and management of child care services with the delivery of other
workforce services. The commenter also stated appreciation for the opportunity
to work with the Commission in development of new policies and rules, and
looks forward to further partnerships with the Commission. However, the commenter
indicated that the requirement to submit new policies, modifications, or amendments
to the Commission is micro-management, and that the preamble is clear that
the responsibility for assuring that all new polices, modifications, or amendments
meet federal and state requirements is the purview and responsibility of Boards.
The commenter indicated that requiring submission of new policies, modifications,
or amendments relating only to the child care program runs counter to the
integration of the child care program into other workforce development services.
The commenter asked if the Commission plans to extend the submission of new
policies, modifications, or amendments to other Board-managed workforce programs.
If the Commission adopts this rule as written, the commenter suggested allowing
a period of at least 30 days for submission of new policies, modifications,
or amendments.
Response: The Commission appreciates the support of its efforts toward
integrating child care services with other workforce services. The Commission
intends that the policies, modifications, and amendments to be submitted are
only those required by federal and state law. The Commission is not requesting
that new policies, modifications, or amendments be submitted for approval.
The required policies, modifications, and amendments are submitted to keep
the Commission apprised of each Board's current local policies for incorporation
into the amendments and updates to the Child Care and Development State Plan
for Texas filed with the United States Department of Health and Human Services
(State Plan). The Commission does not believe it is unreasonable to request
Boards to submit new policies and amendments within two weeks from the date
the Board approves the new or amended policies. The Commission will continue
to evaluate the need for Boards to submit policies and amendments relating
to Board-managed workforce programs.
Comment: One commenter indicated that the Boards already have quality assurance
monitoring policies and procedures in place to ensure compliance with 45 CFR
Parts 98 and 99. The commenter suggested it would be redundant for Boards
to document instances of coordination when they are already in compliance
with federal regulations. The commenter suggested that Commission monitors
should check for such documentation during scheduled site visits rather than
incorporating such language into the rule. The commenter also asked for clarification
of the phrase "written documentation of that coordination."
Response: The Commission recognizes that Boards have quality assurance
and monitoring policies in place. The Commission is obligated under the State
Plan to monitor the Boards' compliance with federal and state plan requirements
for coordination with local entities, and Commission monitors will review
documentation of those efforts during site visits. Written documentation may
include documents such as meeting notes, sign-in sheets, agreements reached,
or any memoranda of understanding, contracts, or other documents that describe
or comment on a form of local coordination. It is not the Commission's intent
to create an additional process but to ensure that the Boards maintain documentation.
Subchapter B. GENERAL MANAGEMENT REQUIREMENTS
40 TAC §809.12
The amendments to the rules are adopted under Texas Labor
Code §§301.061 and 302.002, which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems necessary
for the effective administration of the Commission's responsibilities.
§809.12.Board Planning and Policies for Child Care Services.
(a)
Planning. A Board shall, as part of its integrated workforce
training and services plan, develop, amend and modify the plan to incorporate
and coordinate the design and management of the delivery of child care services
with the delivery of other workforce employment, training and educational
services identified in Texas Government Code §2308.251
et seq.
, as well as other training and services included in the One-Stop
Service Delivery Network. The goal is to coordinate workforce training and
services, to leverage private and public funds at the local level, and to
fully integrate child care for low-income families with the network of workforce
training and services under the administration of the Boards. Boards shall
design and manage the integrated workforce training and services plan that
maximizes the delivery and availability of quality child care services to
assist families seeking to become independent from, or who are at risk of
becoming dependent on, public assistance while parents are either working
or participating in educational or training activities in accordance with
state and federal statutes and regulations. .
(b)
Policies. A Board shall develop, adopt, and modify its
policies for the design and management of the delivery of child care services
in a public process consistent with the methods required for compliance with
the Texas Open Meetings Act, Texas Government Code, Chapter 551
et seq.
. A Board shall maintain written copies of the policies that
are required by federal and state law or as requested by the Commission and
make such policies available to the Commission and the public upon request.
A Board shall also submit any modifications, amendments, or new policies to
the Commission no later than two weeks after adoption of the policy by the
Board.
(c)
Coordinating Planning and Policies. A Board shall coordinate
with federal, state and local child care and early development programs and
representatives of local governments in developing its integrated plan and
policies for the design and management of the delivery of child care services,
and shall maintain written documentation of coordination efforts.
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 May 22, 2000.
TRD-200003605
J. Ferris Duhon
Assistant General Counsel
Texas Workforce Commission
Effective date: June 11, 2000
Proposal publication date: March 31, 2000
For further information, please call: (512) 463-8812
Part 9.
TEXAS DEPARTMENT ON AGING
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
Part 19.
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
Part 20.
TEXAS WORKFORCE COMMISSION
Subchapter C. REQUIREMENTS TO PROVIDE CHILD CARE