Part 1.
DEPARTMENT OF STATE HEALTH SERVICES
Chapter 448.
STANDARD OF CARE
The Executive Commissioner of the Health and Human Services Commission,
on behalf of the Department of State Health Services (department), proposes
amendments to §§448.603, 448.701 and 448.706, concerning the regulation
of training, client bill of rights, and restraint and seclusion in chemical
dependency treatment facilities.
BACKGROUND AND PURPOSE
The amendments are necessary to implement legislation by the 79th Legislature,
Regular Session, 2005. Specifically, amendments to the Health and Safety Code
added Chapter 322 (Senate Bill (SB) 325), and, in particular, Subchapter B,
relating to the restraint and seclusion of residents in certain health care
facilities. These amendments implement requirements relating to chemical dependency
treatment facilities.
SECTION-BY-SECTION SUMMARY
Amendments to §448.603(d)(5) add requirements to the restraint and/or
seclusion training program. Amendments to §448.701(a) clarify the responsibility
of treatment facilities to implement and enforce client rights, and add to
the rights for which the facility is responsible the right of the client and
the client's legally authorized representative to be notified of the rules
and policies related to restraints and seclusion. Amendments to §448.706
add to existing regulation of restraint and seclusion a definition of small
residential facilities not subject to the new requirement for an observer
when a prone or supine hold is used and define practices to promote the safe,
limited, and appropriate use of restraint and seclusion in chemical dependency
treatment facilities. Amendments were added specifically governing the use
of a prone or supine hold; adding restrictions and safeguards relating to
interventions and restraints to reduce their frequency and minimize the risk
of harm; and requiring certain actions after an episode of restraint or seclusion
to help reduce the frequency and increase the safety of any future use of
restraint or seclusion. In addition, to avoid conflict with Health and Safety
Code, §322.052(c), language requiring the authorization of personal restraint
in certain facilities was removed from the rule. While removing the specific
requirement that personal restraint be authorized, the amendment should not
be read to prevent or discourage those facilities from retaining authorization
for the use of personal restraint, if it could be necessary in certain circumstances
to protect the safety of clients or others when less restrictive alternatives
have been exhausted, and thus to fulfill the facility's duty to maintain a
safe environment at all times and under all circumstances.
FISCAL NOTE
Kathy Perkins, Director, Healthcare Quality Section, Regulatory Division,
has determined that for each year of the first five-year period that the sections
will be in effect, there will be no fiscal implications to state or local
governments as a result of enforcing and administering the sections as proposed
in that costs and workload resulting from the rule amendments will be absorbed
within the existing budget.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Perkins has also determined that there will be no effect on small businesses
or micro-businesses required to comply with the sections as proposed. This
was determined by interpretation of the rules that small businesses and micro-businesses
will not be required to alter their business practices in order to comply
with the sections. There are no anticipated economic costs to persons who
are required to comply with the sections as proposed because additional training
requirements are not expected to increase the cost of meeting existing training
requirements. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Perkins has also determined that for each year of the
first five years the sections are in effect, the public will benefit from
adoption of the sections. The public benefit anticipated as a result of enforcing
or administering the sections is to ensure that chemical dependency treatment
facilities make safe and limited use of restraint and seclusion interventions,
appropriately train relevant staff for that purpose, and, in doing so, better
protect the welfare of their clients.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental
rule" as defined by Government Code, §2001.0225. "Major environmental
rule" is defined to mean a rule the specific intent of which is to protect
the environment or reduce risk to human health from environmental exposure
and that may adversely affect, in a material way, the economy, a sector of
the economy, productivity, competition, jobs, the environment or the pubic
health and safety of a state or a sector of the state. This proposal is not
specially intended to protect the environment or reduce risks to human health
from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposed amendments do not restrict
or limit an owner's right to his or her property that would otherwise exist
in the absence of government action and, therefore, do not constitute a taking
under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Jane Guerrero, Facility Licensing
Group, Regulatory Licensing Unit, Department of State Health Services, 1100
West 49th Street, Mail Code 1980, Austin, Texas 78756, 512/834-6639 or by
email to jane.guerrero@dshs.state.tx.us. Comments will be accepted for 30
days following publication of the proposal in the
Texas Register
.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Cathy Campbell,
certifies that the proposed rules have been reviewed by legal counsel and
found to be within the state agencies' authority to adopt.
Subchapter F. PERSONNEL PRACTICES AND DEVELOPMENT