Adopted Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

CHAPTER 85. ADMISSION, PLACEMENT, AND PROGRAM COMPLETION

The Texas Youth Commission (TYC) adopts the repeal of §85.1, concerning legal requirements for admission, §85.21, concerning program assignment system, §85.23, concerning classification, §85.41, concerning maximum length of stay, §85.45, concerning movement without program completion, §85.55, concerning program completion for other than sentenced offenders, §85.59, concerning program completion for sentenced offenders under age 19, §85.61, concerning program completion for sentenced offenders age 19 or older, §85.65, concerning discharge of sentenced offenders upon transfer to TDCJ or expiration of sentence, §85.69, concerning program completion for sentenced offenders adjudicated for capital murder, and §85.95, concerning parole completion and discharge. The repealed rules are adopted without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2882).

TYC also adopts the repeal of §85.51, concerning definitions without changes to the proposed text as published in the June 5, 2009, issue of the Texas Register (34 TexReg 3507).

The justification for the repeals is the availability of accurate and up-to-date information concerning TYC programming and operations.

The repeal of §85.1 allows for a new section to be published with this number. The new section establishes definitions used throughout Chapter 85, and is adopted in this issue of the Texas Register.

The repeal of §85.21 allows for a significantly revised rule to be published in its place. The revised rule is adopted as a new rule in this issue of the Texas Register.

The repeal of §85.23 allows for new rules to establish TYC's new processes for classifying youth. Section 85.23 had previously classified youth according to only one factor -- the youth's most serious adjudicated offense. This rule is replaced by §85.24 and §85.25. These rules establish a classification system that takes into account many additional factors, such as a risk assessment instrument that addresses risk to re-offend, youth age, size, gang affiliation, treatment needs, and other factors when determining appropriate minimum lengths of stay and housing assignments.

The repeal of §85.41 reflects reforms enacted by SB103, 80th Texas Legislature. This legislation created a Release Review Panel as the only means by which a non-sentenced offender's length of stay may be extended. The need for §85.41 no longer exists, as the purpose for this rule is now served by the statutorily created Review Panel, and several components that serve as the basis for determinations made under §85.41 are no longer used within TYC. The repeal of §85.51 allows for the adoption of new §85.1, which establishes definitions used throughout Chapter 85. Section 85.51 had only defined terms used in Subchapter D.

The repeal of §§85.45, 85.55, 85.59, 85.61, 85.65, 85.69, and 85.95 allows for significantly revised rules to be published in their place. The revised rules are adopted as new rules in this issue of the Texas Register.

No comments were received regarding adoption of the repealed rules.

SUBCHAPTER A. COMMITMENT AND RECEPTION

37 TAC §85.1

The repeal is adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903283

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. PLACEMENT PLANNING

37 TAC §85.21, §85.23

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903282

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER C. MOVEMENT WITHOUT PROGRAM COMPLETION

37 TAC §85.41, §85.45

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903289

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER D. PROGRAM COMPLETION

37 TAC §§85.51, 85.55, 85.59, 85.61, 85.65, 85.69

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903290

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15 and June 5, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER E. PAROLE PLACEMENT AND DISCHARGE

37 TAC §85.95

The repeal is adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903291

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 85. ADMISSION, PLACEMENT, RELEASE, AND DISCHARGE

The Texas Youth Commission (TYC or commission) adopts amendments to §85.3 (concerning admission process), §85.5 (concerning assessment/evaluation), and §85.25 (concerning minimum length of stay/minimum period of confinement). TYC also adopts new §85.1 (concerning definitions), §85.2 (concerning legal requirements for admission), §85.21 (concerning placement assignment system), §85.45 (concerning movement prior to program completion), §85.55 (concerning program completion for non-sentenced offenders), §85.59 (concerning program completion for sentenced offenders), §85.65 (concerning discharge of sentenced offenders upon transfer to TDCJ or expiration of sentence), 85.69 (concerning transfer of sentenced offenders adjudicated for capital murder), and §85.95 (concerning parole completion and discharge).

The new and amended rules are adopted without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2884).

The justification for the new and amended rules is the operation of an evidence-based system for assessing, placing, and releasing youth, compliance with enacted legislation, as well as the availability of accurate and up-to-date information concerning TYC programming and operations.

New §85.1 establishes definitions for terms commonly used throughout Chapter 85.

New §85.2 republishes the text of §85.1 with a new section number.

The amended §85.3 clarifies that the requirement for youth to provide a blood sample for the Department of Public Safety DNA database as part of the routine admission process applies to all youth committed to TYC.

The amended §85.5 includes several additional assessments to be conducted during the admission process. Specifically, the amended rule requires that prior to assigning a youth to a room at the intake unit, staff must conduct a safe housing assessment, a suicide risk screening, and a screening for vulnerability to sexual victimization or aggression. The amended rule also requires that TYC conduct a comprehensive psychological evaluation for all youth upon admission, and a comprehensive psychiatric evaluation for all youth assigned a minimum length of stay of 12 months or longer.

New §85.21 establishes TYC's process for determining the most appropriate residential facility for individual youth placements. The new rule describes in much greater detail than the previous rule how gender, treatment needs, risk assessment, and proximity to home are used in making placement determinations.

The amended §85.25 no longer includes a definitions section. The definitions are included in new §85.1.

New §85.45 establishes the eligibility criteria for youth to transition to a facility of lesser restriction, establishes procedures for releasing youth due to an overpopulation condition, and addresses other types of release or transfer that may occur prior to completion of required programming.

New §85.55 establishes the eligibility criteria for non-sentenced offenders to qualify for release from a residential facility and placement on parole.

New §85.59 establishes the eligibility criteria for sentenced offenders to qualify for release from a residential facility and placement on parole.

New §85.65 establishes the criteria and process for requesting court approval to transfer sentenced offenders to the adult prison system, and for discharging sentenced offenders whose sentences have expired, or who have not qualified for release or transfer based on completing required programming.

New §85.69 establishes the criteria and process for transferring sentenced offenders adjudicated for capital murder to the Parole Division or Institutions Division of the Texas Department of Criminal Justice to complete their sentences.

New §85.95 establishes the criteria for discharging non-sentenced offenders from the legal custody of TYC.

Comments regarding adoption of several of the rules were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with the commission's responses.

§85.1.

Comment: The definition of administrative transfer should include disability. Often youth are transferred to new programs or facilities solely because of their need to receive treatment or accommodations for their disability.

Response: The definition does not contain an exhaustive list of reasons a youth may be transferred administratively. The definition does provide several examples, including transfers based on treatment need, which would encompass disability related issues. No changes were made to the proposed text as a result of the comment.

§85.2.

Comment: The proposed rule should specify that the following special education records must be provided prior to admission to TYC: the most recent Full Individual Evaluation and/or reevaluation, the current individualized education program, behavior intervention plans and/or functional behavioral assessments, assistive technology and any records related to the provision of related services including individual counseling, psychological services, occupational therapy, physical therapy, speech therapy, etc.

Response: The rule specifically addresses records that are required to be submitted by a court pursuant to Human Resources Code §61.065 and §61.0651. Any other educational documentation relating to special education records needed for TYC to provide educational services will be obtained from the transferring school district pursuant to the Memorandum of Understanding documented at 19 TAC §89.1115. No changes were made to the proposed text as a result of the comment.

Comment: Information related to a youth's medical and/or dental orthoses or prostheses and other aids should be noted as part of the medical or dental records of a youth so the facility can provide resources to accommodate the youth's needs.

Response: The rule requires the committing county to provide all available medical and dental records. These records should include an indication of whether the youth requires orthotic or prosthetic devices. If this information is not present in the records received from the committing county, a youth's specialized needs will be identified through TYC's intake health screening process. No changes were made to the proposed text as a result of the comment.

Comment: Due to the delay in providing educational services and the additional costs of administering educational evaluations upon admission to TYC, this rule should mandate that a youth would not be admitted to TYC unless his or her current educational records are provided upon admission. Also, if a youth is on medication, a youth should be provided with a reasonable supply of medication as well as information about the dosages so there is continuity in the provision of his or her medication upon admission to TYC.

Response: Texas Family Code §54.04(e) requires TYC to accept any person properly committed to it. There are no provisions in the Family Code or in the Human Resources Code §61.065 or §61.0651 that give TYC the authority to deny admission due to the failure of the court to provide certain documents or items. No changes were made to the proposed text as a result of the comment.

§85.5.

Comment: This subsection should be amended to require an assessment to determine if a youth has a medical or psychological condition that could be aggravated if the youth is exposed to a physical restraint by a member of the opposite sex or pepper spray.

Response: The rule requires TYC to conduct a medical examination which would include identification of any medical issues that would contraindicate the use of pepper spray. Issues relating to physical restraint are addressed separately in 37 TAC §97.23. No changes were made to the proposed text as a result of the comment.

Comment: The proposed rule should include a full individual evaluation under the Individuals with Disabilities Education Act (IDEA) for youth with disabilities. If these evaluations are provided with the admission packet, it may not be necessary to conduct a full evaluation.

Response: The rule requires an educational assessment which would include any assessments needed to comply with IDEA. The language in the rule is broad enough to include the recommended assessment. No changes were made to the proposed text as a result of the comment.

Comment: The rule should include procedures and practices for identifying youth who are declared eligible for special education and §504 in a prior placement or in the home school district from which they came. If TYC does not require the provision of these educational records upon admission, the procedures should include prompt requests for school records from the youth's prior school district about the youth's eligibility so that TYC can learn what services the youth was receiving prior to placement.

Response: The recommended procedures and practices are contained in the operations manual TYC maintains for delivery of special education services. Such detailed procedures should not be included in this rule, which reflects TYC's broad duties relating to the admission process. No changes were made to the proposed text as a result of the comment.

§85.21.

Comment: The rule should require facility placements that ensure that youth receive accommodations for their disabilities.

Response: The proposed rule text requires that a youth's individual treatment needs, which could include a youth's disability, be considered in determining an appropriate facility assignment. Additionally, 37 TAC §93.1 establishes TYC youths' right to be free of all discrimination, including discrimination based on disability. No changes were made to the proposed text as a result of the comment.

§85.45.

Comment: The rule should include procedures for how youth will receive information about how and when they can request a level II hearing prior to a transition.

Response: Transitions are defined in §85.1 as movements to programs of equal or lesser restriction for the purpose of facilitating a youth's re-entry to the community when the youth has demonstrated progress in rehabilitation. If a youth were to object to a transition, a request to any staff member would suffice to trigger the requirement to hold the hearing. Formal procedures are not necessary for such requests. No changes were made to the proposed text as a result of the comment.

Comment: The rule should include procedures for informing youth over age 18 how and when they can give consent to their parent or guardian about being transferred.

Response: TYC has published a separate rule, 37 TAC §87.5, that establishes the process for youth 18 years of age and older to give consent for TYC to provide certain information to their parents. No changes were made to the proposed text as a result of the comment.

§85.55.

Comment: There should be a provision that requires a determination of whether a youth's failure to make progress in the program is due to TYC's failure to provide accommodations for the youth's disability.

Response: TYC's recently proposed rules establish a framework in which individualized goals, strategies, and progress assessments, based on individual abilities, needs, and strengths, are built into the process for determining whether a youth has completed all required programming. This approach applies to all youth, including those with disabilities. Additionally, 37 TAC §93.1, establishes TYC youths' right to be free of all discrimination, including discrimination based on disability. No changes were made to the proposed text as a result of the comment.

Comment: The rule should include procedures for informing youth over age 18 how and when they can give consent to their parent or guardian about being moved.

§85.59.

Comment: The rule should include procedures for informing youth over age 18 how and when they can give consent to their parent or guardian about being released.

Comment: The rule should include provisions to address when a youth has not completed an assigned specialized treatment program because TYC lacks the capacity for the youth to complete the program and also should include special provisions for youth with disabilities.

Response: TYC has published a separate rule, 37 TAC §87.51, that addresses the requirements for certain youth to participate in or complete specialized treatment. That rule allows for designated administrators to waive the completion requirement when a youth's medical, mental health, or mental retardation condition prevents participation in the program. Section 87.51 also requires each youth's individual circumstances to be considered when assigning specialized programming, which may include the youth's ability to complete specialized programming in the time remaining on his/her minimum length of stay. No changes were made to the proposed text as a result of the comment.

Comment: There must be a provision that requires a determination of whether the reason a sentenced offender has not successfully completed the program is due to TYC's failure to provide accommodations for the youth's disability.

SUBCHAPTER A. DEFINITIONS; COMMITMENT AND RECEPTION

37 TAC §§85.1 - 85.3, 85.5

The new rules are adopted under: (1) Human Resources Code §61.034, which provides the commission with the authority to adopt rules appropriate to the proper accomplishment of its functions; (2) Texas Government Code §411.148, which requires a juvenile who is, after an adjudication for conduct constituting a felony, confined in a facility operated by or under contract with the commission to provide one or more DNA samples for the purpose of creating a DNA record; and (3) Human Resources Code §61.071, which requires the commission to examine and make a study of each child committed to it as soon as possible after commitment.

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 August 3, 2009.

TRD-200903288

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. PLACEMENT PLANNING

37 TAC §85.21, §85.25

The new rules are adopted under: (1) Human Resources Code §61.061, which requires the commission to consider the proximity of the residence of a child's family in determining the appropriate commission facility in which to place a child; (2) Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public; and (3) Human Resources Code §61.062, which requires the commission to establish a minimum length of stay for each youth committed to the commission without a determinate sentence that considers the nature and seriousness of the conduct engaged in by the child, and the danger the child poses to the community.

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 August 3, 2009.

TRD-200903287

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER C. MOVEMENT PRIOR TO PROGRAM COMPLETION

37 TAC §85.45

The new rule is adopted under Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public and permit the child liberty under supervision and on conditions it believes conducive to acceptable behavior. The rule is also proposed under §61.081, which provides the commission to release under supervision any child in its custody and place the child in his or her home or in any situation or family approved by the commission.

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 August 3, 2009.

TRD-200903286

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER D. PROGRAM COMPLETION AND RELEASE

37 TAC §§85.55, 85.59, 85.65, 85.69

The new rules are adopted under: (1) Human Resources Code §61.075, which provides the commission with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public and permit the child liberty under supervision and on conditions it believes conducive to acceptable behavior; (2) Human Resources Code §61.081, which provides the commission to release under supervision any child in its custody and place the child in his or her home or in any situation or family approved by the commission; (3) Human Resources Code §61.084, which requires the commission to transfer a person who has been sentenced under a determinate sentence to the custody of the Texas Department of Criminal Justice on the person's 19th birthday, if the person has not already been discharged or transferred, to serve the remainder of the person's sentence on parole, and which requires the commission to discharge without a court hearing a person committed to it for a determinate sentence who has not been transferred to the institutional division of the Texas Department of Criminal Justice under a court order on the date that the time spent by the person in detention in connection with the committing case plus the time spent at the Texas Youth Commission under the order of commitment equals the period of the sentence, and to transfer to the institutional division of the Texas Department of Criminal Justice a person who is the subject of an order under §54.11(i)(2), Family Code, transferring the person to the custody of the institutional division of the Texas Department of Criminal Justice for the completion of the person's sentence.

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 August 3, 2009.

TRD-200903285

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER E. PAROLE PLACEMENT AND DISCHARGE

37 TAC §85.95

The new rule is adopted under Human Resources Code §61.075, which provides the commission with the authority to discharge a child from control when it is satisfied that discharge will best serve the child's welfare and the protection of the public, and §61.084, which requires the commission to discharge from its custody a person not already discharged on the person's 19th birthday.

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 August 3, 2009.

TRD-200903284

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 87. TREATMENT

The Texas Youth Commission (TYC) adopts the repeal of §87.1, concerning case planning, §87.2, concerning resocialization program, §87.3, concerning resocialization phase requirements and assessment, §87.4, concerning resocialization earned privilege system, and §87.51, concerning special needs offenders without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2899).

TYC also adopts the repeal of §87.55, concerning waivers from certain specialized treatment programs without changes to the proposed text as published in the June 5, 2009, issue of the Texas Register (34 TexReg 3507).

The justification for repealing the rules is the availability of accurate and up-to-date information concerning TYC programming and operations.

The repeal of §§87.1, 87.2, 87.3, and 87.51 allows for significantly revised rules to be published in their place. The revised rules are adopted in this issue of the Texas Register.

The repeal of §87.4 allows for a new rule concerning youth privileges to be published as new §95.2. The new rule is adopted in this issue of the Texas Register.

The repeal of §87.55 allows for the new process established in §87.51 for requesting and approving waivers of the requirement for certain youth to complete specialized treatment programs to supersede the process described in §87.55.

No comments were received regarding adoption of the proposed repeals.

SUBCHAPTER A. PROGRAM PLANNING

37 TAC §§87.1 - 87.4

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903306

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. SPECIAL NEEDS OFFENDER PROGRAMS

37 TAC §87.51, §87.55

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903307

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15 and June 5, 2009

For further information, please call: (512) 424-6014

CHAPTER 87. TREATMENT

The Texas Youth Commission (TYC) adopts new §87.1, concerning case planning, §87.2, concerning rehabilitation program overview, §87.3, concerning rehabilitation program stage requirements and assessment, and §87.51, concerning special needs offenders, with changes to the proposed text as published in the May 15, 2009 issue of the Texas Register (34 TexReg 2899). Changes to the proposed text include minor grammatical corrections. Additional changes to the proposed text are outlined below, as described in the responses to public comments received.

The justification for the new rules is the establishment of an individualized juvenile delinquency rehabilitation strategy based on evidence-based techniques, as well as establishment of a system of specialized treatment programming that more appropriately matches the level of specialized treatment intervention with each youth’s assessed treatment need.

New §87.1 makes several changes from the previous version of this rule. Updates to individual case plan objectives will be provided every 30 days for all youth in residential facilities, regardless of the committing offense or facility restriction level. The new rule also reflects that individual case plans will be developed with the goal of reducing individual risk factors and increasing individual protective factors, which is one of the foundational principles of TYC’s rehabilitative strategy as described in new §87.2 and §87.3.

New §87.2 provides an overview of TYC’s general rehabilitation program. The rehabilitative strategy focuses on helping each youth learn how to reduce the individual factors that make him/her more likely to engage in future delinquent conduct, and to increase the individual factors that help to keep him/her away from delinquent conduct.

New §87.3 establishes the system for assessing youth progress through the rehabilitation program. The new rule also provides an outline of the basic areas in which a youth must demonstrate progress in order to successfully complete each stage of the rehabilitation program.

New §87.51 establishes TYC’s process for assessing youth for specialized treatment needs and providing youth with treatment programs and interventions that are best suited to address those needs.

Comments regarding the rules were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with TYC’s responses.

§87.1.

Comment: The rule should be amended to require that the individual case plan must be developed in accordance with an assessment of the youth’s disability and any accommodations that are necessary to enable the youth to complete the program.

Response: Although the rule requires case plans to include individualized strategies to help youth progress through the program, TYC agrees that more emphasis should be placed on addressing a youth’s abilities during the case planning process. Subsection (a) and subsection (c)(2) of the adopted text have been amended to reflect that a youth’s abilities are a primary factor in case planning.

§87.2.

Comment: The general provisions should be amended to require all aspects of the TYC rehabilitation program to provide reasonable accommodations for a youth’s disability.

Response: Although the rule requires all aspects of the rehabilitation program to be individualized, TYC agrees that more emphasis should be placed on a youth’s abilities when assessing youth progress through the program. Subsection (c)(4) of the adopted text has been amended to reflect that a youth’s individual abilities are a primary component in assessing his/her progress in rehabilitation programming.

Comment: The rule should include provision of special education services and Section 504 services for youth with disabilities.

Response: This rule is intended to provide a broad statement of TYC’s responsibilities in delivering general rehabilitative programming. Details regarding specific educational programming and service delivery are addressed in TYC’s program operations manuals and are not appropriate for inclusion in this rule. However, to ensure the rule conveys that TYC will provide individual assistance to youth requiring special education services, subsection (c)(7) of the adopted text has been amended to reflect that appropriate individual supports will be provided as part of the education program.

§87.3.

Response: TYC has published a separate rule, 37 TAC §87.51, that addresses the requirements for certain youth to participate in or complete specialized treatment. That rule allows for designated administrators to waive the completion requirement when a youth’s medical, mental health, or mental retardation condition prevents participation in the program. Section 87.51 also requires each youth’s individual circumstances to be considered when assigning specialized programming, which may include the youth’s ability to complete specialized programming in the time remaining on his/her minimum length of stay. No changes were made to the proposed text as a result of the comment.

Comment: The rule should include policies and procedures that are specific to appropriate accommodations for the special needs of youth with mental illness, significant cognitive impairments or other disabilities that may impair a youth’s ability to comply with the stated objectives. Without certain accommodations, many youth with disabilities may not be able to pass through the various stages listed in the rule.

Response: All elements of the rehabilitation program are designed to be individualized and to take into account each youth’s abilities. To clarify this requirement, subsection (e)(2) of the adopted text has been amended to reflect that the youth’s individual abilities are a significant factor considered by the youth’s treatment team when determining progress through the program stages. Specific procedures relating to identified mental illnesses and significant cognitive impairments are better addressed in TYC’s program operations manuals. No changes were made to the proposed text as a result of the comment.

Comment: The proposed rule should require the multi-disciplinary team (MDT) to be responsible for determining the reasonable accommodations that a youth with disabilities would need in order to successfully complete the program. If the MDT does not possess the expertise in determining the accommodations for a youth, there must be a process where a qualified expert is consulted in arriving at the accommodations for a youth with disabilities.

Response: The composition of the MDT is addressed in TYC’s program operations manuals. The MDT is designed to include input from subject matter experts in all relevant areas. However, to clarify the responsibility for ensuring that appropriate expertise is included, subsection (g)(1) of the adopted text has been amended to require the youth’s case manager to contact additional professional resources for assistance in formulating strategies to assist the youth to progress.

Comment: The rule should state that a youth may appeal the results of a stage assessment if the youth believes that his or her lack of progress was due to the failure to provide accommodations for his or her disability.

Response: The proposed rule text allows a youth to appeal a stage assessment for any reason, including a youth’s belief that his/her disability has not been appropriately accommodated. No changes were made to the proposed text as a result of the comment.

§87.51.

Comment: As an accommodation, certain requirements of a specialized treatment program should be revised or waived because a youth may not be able to complete them because of his/her disability.

Response: A core principle of all TYC programs is that goals and expectations are individualized based on the youth’s unique abilities, needs, and strengths. Due to the highly individualized nature of TYC programming, revisions or waivers for pre-set achievement levels should not be necessary. For cases where the program cannot be adequately tailored to the youth’s abilities, the proposed rule includes a provision which allows for waivers of the requirement to complete an assigned specialized treatment program when the youth’s medical, mental health, or mental retardation condition prevents the youth from participating in the program. It should also be noted that the proposed rule no longer makes completion of specialized treatment a mandatory requirement for certain youth. Participation or completion is only required if the specialized treatment program is assigned. There is no completion requirement for treatment that is not assigned. For specialized treatment that is assigned, the rule provides for continuation of treatment in community settings in certain situations. No changes were made to the proposed text as a result of the comment.

SUBCHAPTER A. PROGRAM PLANNING

37 TAC §§87.1 - 87.3

The new rules are adopted under Human Resources Code §61.076, which provides the commission with the authority to require children committed to its care to participate in academic, vocational, physical, and correctional training and activities.

§87.1.Case Planning.

(a) Purpose. The purpose of this rule is to ensure the case management of each youth is individualized and flexible, and is based on the youth’s risk and protective factors, abilities, and need for services. Risk and protective factors are identified and correspond to long and short-term objectives that are developed to facilitate the youth’s progress in the rehabilitation program. The resulting case plan is reviewed regularly and revised when necessary.

(b) Definitions. Definitions for terms used in this rule are under §85.1 of this title.

(1) An Individual Case Plan (ICP) will be developed with and for each youth by the case manager in consultation with the multi-disciplinary team. The ICP will be individualized for each youth and will identify objectives with specific strategies to address development of skills to reduce individual risk factors and increase individual protective factors.

(2) The ICP will be developed in accordance with the assessment of the youth’s risk and protective factors, abilities, and progress in the rehabilitation program.

(3) The ICP will specify measurable objectives, expected outcomes and a means to evaluate progress.

(4) ICP objectives will be updated every 30 days to reflect adjustments as the youth progresses or as new needs are identified.

(5) The ICP will be developed with individualized strategies to facilitate youth progress through the rehabilitation program.

(6) The ICP will be initiated during the assessment process.

(7) ICP development will include a review of youth progress and objectives and will be developed with the youth and family when possible.

§87.2.Rehabilitation Program Overview.

(a) Purpose. The purpose of this rule is to identify the agency’s philosophy and approach to rehabilitation of juvenile delinquents in order to reduce future delinquent behavior and increase youth accountability.

(b) Definitions. See §85.1 of this title for definitions of terms used in this rule.

(1) Each Texas Youth Commission (TYC) operated residential facility will utilize an integrated, system-wide rehabilitative strategy that offers a menu of therapeutic techniques, tools, and program components to help individual TYC youth increase their ability to be productive citizens and avoid re-offending.

(2) To the extent possible, TYC’s rehabilitative strategy will offer programs in an adequate manner so that youth receive appropriate rehabilitation services recommended by the committing court.

(3) All aspects of the TYC rehabilitation program will be individualized and performance-based with clearly defined expectations as set forth in §87.3 of this title.

(4) Individual progress will be measured monthly and be based on all identified risk and protective factors and individual abilities. Youth in residential placements will be assessed by a multi-disciplinary team. Youth on parole in the community will be assessed by the assigned parole officer.

(5) As youth progress in the rehabilitation program, there are increased expectations for demonstrating developed skills and social responsibility, a decreased need for direct staff supervision, and an increase in earned privileges as set forth in §95.2 of this title.

(6) TYC facilities shall maintain a structured, 16-hour day for all youth. During each day, the youth will work on components of the rehabilitation program.

(7) TYC facilities shall provide for and youth will participate in a structured, individually appropriate educational program or equivalent, with appropriate supports.

(8) TYC facilities shall provide and eligible youth may participate in work experiences.

(9) TYC facilities shall provide and youth will participate in regular physical training programs.

(10) TYC facilities shall provide and youth will participate in skills development groups.

(11) Staff will receive appropriate training and certification related to their role in the rehabilitation program and the type of services they provide.

§87.3.Rehabilitation Program Stage Requirements and Assessment.

(a) Purpose. Texas Youth Commission (TYC) youth earn release from high and medium restriction placements by progressing through a stage system that measures progress in the rehabilitation program. The purpose of this rule is to provide a general outline of the areas in which a youth must demonstrate progress and to describe the process for how progress is assessed.

(b) Applicability. This rule applies to all residential facilities operated by the TYC. This rule does not apply to youth in contract care programs that are not required to provide the TYC rehabilitation program.

(d) General Themes in the Rehabilitation Program. In each stage, there are objectives for the youth to complete which will:

(1) demonstrate an understanding of risk and protective factors and show a decrease in risk factors and an increase in protective factors over the course of the rehabilitation program;

(2) demonstrate a youth’s increased understanding of how those personal risk factors relate to success/lack of success in the community and assist the youth in understanding how his/her committing offense was related to risk factors;

(3) move the youth toward developing a concrete community reintegration plan from the time of admission; and

(4) engage the youth’s family in programming.

(e) General Process for Stage Assessment.

(1) For each stage, a youth completes objectives around the four general themes. Once those objectives are completed, the youth presents and discusses stage-related indicators with the multi-disciplinary team (MDT).

(2) The MDT assesses whether the youth has adequately completed the required indicators, taking into account the youth’s individual abilities. The MDT is the primary decision authority regarding whether a youth earns stage promotion.

(3) If the MDT determines the stage objectives have been met, the MDT also evaluates whether the youth has consistently participated in the following other areas of programming:

(A) participation in development and completion of case plan objectives;

(B) participation in groups and individual counseling sessions;

(D) participation in academic and workforce development programs; and

(E) application of learned skills in daily behavior, as defined in the positive behavior change system.

(4) If the MDT determines that a youth meets the required indicators for the stage and has consistently participated in the other areas of programming, the youth will be promoted to the next stage.

(5) If the MDT determines the youth has not met the indicators required for the stage or has not consistently participated in the other areas of programming, the youth remains on his/her current stage until the next MDT review (28-35 days).

(6) Youth may not be demoted in stage.

(7) The MDT gives the youth specific feedback on his/her areas of positive progress and assists the youth in focusing on what needs to be improved for the next review period.

(f) Stage Requirements for Promotion.

(1) Stage 1--this stage is completed when the MDT determines that the youth has demonstrated basic knowledge of the stage objectives. The youth attends the foundational skills development groups and participates in individual sessions with his/her case manager to develop an assessment of risk and protective factors. In order to complete stage 1, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) understand the definition of risk and protective factors;

(ii) explore risk factors related to TYC commitment;

(iii) attempt to involve a family member or an adult mentor in coordination with the family liaison and case manager; and

(iv) establish a personal goal and identify strategies to achieve that goal;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(2) Stage 2--this stage is completed when the MDT determines that the youth has identified and discussed his/her personal risk and protective factors, has identified patterns in his/her thoughts, feelings, attitudes, values and beliefs that relate to TYC commitment and ongoing behaviors, has created an initial community re-integration plan, and has participated with the MDT in targeting specific skills for development related to his/her risk and protective factors. In order to complete stage 2, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) explore personal risk and protective factors;

(ii) share identified risk and protective factors with his/her family or adult mentor;

(iii) identify patterns in thoughts, feeling, attitudes, beliefs and values;

(iv) create an initial community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(3) Stage 3--this stage is completed when the MDT determines that the youth has completed skill lessons assigned by the case manager and MDT necessary to reduce risks and enhance protective factors. The youth is expected to take responsibility for the committing offense, identify patterns in thinking, and be able to discuss the impact of the offense on direct and indirect victims. The youth is expected to incorporate the new skills learned while in the facility into daily living situations and into a community re-integration plan. In order to complete stage 3, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) show a reduction of risk factors and an increase in protective factors;

(ii) take responsibility for the committing offense;

(iii) share progress on reducing risk factors and increasing protective factors with his/her family member or adult mentor;

(iv) complete the community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(4) Stage 4--this stage is completed when the MDT determines that the youth demonstrates and practices skills learned in skills groups through daily application in situations that present increased risk for the youth. Youth are expected to engage in responsible behaviors that are consistent with identified protective factors on a regular basis. Additional skills are learned as assigned and the community re-integration plan is revised as needed and reviewed. The community re-integration plan is considered complete when the case manager, youth and the youth’s parent/guardian/adult mentor approve the document. In order to complete stage 4, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) show a reduction of risk factors and an increase in protective factors;

(ii) identify new thoughts, feelings, attitudes, beliefs and values that might increase success in the community;

(iii) share the community re-integration plan with his/her family or adult mentor;

(iv) finalize the community re-integration plan;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(5) Stage 5--youth who have completed stage 4 in a high or medium restriction facility and remain in a medium restriction facility are assigned to stage 5. The youth updates the community re-integration plan as he/she encounters real situations and influences in the community. The youth reviews risk and protective factors and completes thinking reports on specific situations, identifying patterns in thinking. In order to complete stage 5, the youth must:

(A) complete the following objectives in accordance with the specified indicators for each objective:

(i) review any changes to risk factors and protective factors in the halfway house environment;

(ii) review thoughts, feelings, attitudes, values, and beliefs related to community re-integration;

(iii) comply with, review, and revise the community re-integration plan;

(iv) share the revised community re-integration plan with his/her family or adult mentor;

(B) present and discuss his/her progress with the MDT as specified in the stage indicators; and

(6) Youth Empowerment Status--youth who complete stage 4 and remain in a high restriction facility or who complete stage 5 and remain in a medium restriction facility are assigned to Youth Empowerment Status. This status ensures that youth continue to work in the program to maintain their gains, continue to reduce risk factors and increase protective factors, continue their skills development, update their community re-integration plan as circumstances change, and contribute positively to their living environment. If the MDT determines that the youth has met all objectives, the youth is placed on "active" status. If the MDT determines that the youth has not met all objectives, the youth is placed on "inactive" status. The objectives are:

(A) youth shows a reduction of risk factors and an increase in protective factors;

(B) youth reviews and revises the community re-integration plan;

(D) youth attends all scheduled groups;

(E) youth participates in specialized treatment program(s) or supplemental groups, if applicable;

(F) youth participates in academic and workforce development programs commensurate with abilities; and

(G) youth consistently applies learned skills in daily behavior.

(g) Roles and Responsibilities for Multi-Disciplinary Team Meetings.

(1) Members of the MDT make stage decisions collaboratively, providing input in their areas of expertise. The MDT facilitates and confirms stage progression by reviewing progress and interviewing the youth. The youth’s case manager serves as the MDT facilitator, and is responsible for contacting additional professional resources as appropriate to discuss the youth’s individualized needs and abilities, and to provide information regarding strategies to assist the youth to progress in the program.

(2) The multi-disciplinary team for each dormitory or living unit meets weekly to discuss each youth’s weekly performance ratings and other living unit issues.

(A) Based on each youth’s weekly performance status rating (demonstration of skills relative to assigned stage), the MDT may adjust a youth’s standard privileges for the week, and may reduce or remove consequences imposed for prior major or minor rule violations if the youth’s improved behavior warrants it.

(B) On a weekly basis, the MDT makes decisions about youth participation in campus programs, participation in leisure skills building groups or extracurricular activities, approves various youth requests/suggestions, and makes recommendations to facility administration regarding youth movement due to specialized program need, program completion, or lack or progress in the assigned program.

(3) The MDT meets monthly for an integrated and comprehensive assessment of each youth’s progress in the rehabilitation program.

(A) Prior to the meeting, assigned staff members are responsible for collecting specific information in their area of expertise and making it available for the meeting.

(B) The case manager is responsible for contacting the family to invite them to the meeting and ensuring their input into the process.

(C) The youth is responsible for being prepared to discuss information related to his/her program and preparing any information to present relative to stage progression.

(D) During the monthly assessment, the youth’s general progress in the program and on specific case plan objectives is reviewed, risk and protective factors are reviewed, medical and mental health information is discussed (where applicable), feedback is provided to the youth on areas of strength and areas needing improvement, interventions to assist the youth’s progress are discussed and developed, community re-entry planning is discussed and the youth’s stage is assigned.

(E) An updated individual case plan is developed for youth following the meeting.

(F) Every 90 days the youth’s assessment of risk and protective factors is reviewed and updated, and a progress report is provided to the parent following the MDT meeting.

(4) The MDT will address and make rehabilitation recommendations that also reflect:

(A) specialized treatment needs of the youth to include chemical dependency, mental health, cognitive, aggressive, sexual behavior and language proficiency;

(B) any other relevant specialized needs not identified specifically in this policy; and

(h) Documentation and Youth Interview. A stage assessment is conducted on the basis of documentation related to the youth’s performance during the previous 30-day period. The MDT conducts a face-to-face interview with the youth:

(1) monthly at the stage assessment;

(2) weekly if the youth’s behavior indicates that a loss of privilege or privilege adjustment may be necessary (see §95.2 of this title for more information on the youth privilege system); and

(3) prior to movement to a less restrictive placement;

(i) Opportunity to Demonstrate Completion of Requirements.

(1) Some objectives may be completed in a single month. Completion of all stage requirements for promotion are demonstrated primarily through consistent participation in scheduled activities and development of skills to address risk factors, which will generally take longer than one month to achieve. The stage requirements are generally sequential.

(2) During each monthly assessment period, the youth is provided an equal opportunity, as the youth’s behavior warrants, to participate in the scheduled activities needed to progress. With reasonable effort by the youth, the requirements of the highest stage will be completed by the youth’s minimum length of stay or minimum period of confinement. For youth whose minimum length of stay or minimum period of confinement exceeds 12 months, the schedule must provide an opportunity for completion of the highest stage within one year.

(j) Documentation and Youth Notification of Results of Stage Assessment. The following activities are required of the primary service worker (PSW) after a stage assessment:

(1) within two workdays of the stage assessment, the PSW meets with the youth to review the results of the assessment. The PSW discusses with the youth the strengths and specific areas needing improvement;

(2) within three workdays, the PSW enters the stage assessment results into the automated data entry system; and

(3) within seven calendar days, the PSW attempts to contact the youth’s family by telephone to share the outcome of the stage assessment.

(k) Development of the Individual Case Plan. The following case planning activities are required of the PSW after a stage assessment:

(1) within seven calendar days of the stage assessment, the PSW completes the monthly Individual Case Plan (ICP) with and for the youth, reviews its content and obtains the youth’s signature; and

(2) youth who have completed stage 3 and who are within 90 days of their minimum length of stay or minimum period of confinement will have a transition ICP initiated. The plan will be developed based upon the youth’s individualized risk factors, strengths, and needs.

(l) Stage Assessment Upon Return to a High Restriction Facility.

(1) Youth who are returned to high restriction from a medium restriction facility as a result of a due process hearing (other than parole revocation hearing) are placed on stage 3, or are retained on the current stage if currently assigned to stage 1 or 2.

(2) Youth who are returned to high restriction as a result of a parole revocation hearing or who are recommitted to TYC are placed on stage 1.

(m) Appeal of Assessment. The youth may appeal the results of a stage assessment, or of the lack of opportunity to demonstrate completion of requirements, by filing a grievance in accordance with §93.31 of this title. The person assigned to respond to the grievance must not be a member of the MDT or a staff member who has been involved in the youth’s current assessment.

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 August 3, 2009.

TRD-200903304

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. SPECIAL NEEDS OFFENDER PROGRAMS

37 TAC §87.51

The new rule is adopted under Human Resources Code §61.0315, which requires the commission to offer or make available certain specialized treatment programs in an adequate manner so that a child in the custody of the commission receives appropriate rehabilitation services recommended for the child by the committing court, and §61.076, which provides the commission with the authority to require children committed to its care to participate in academic, vocational, physical, and correctional training and activities.

§87.51.Special Needs Offenders.

(a) Purpose. The purpose of this rule is to identify the process by which youth committed to the Texas Youth Commission (TYC) are assessed for specialized treatment needs and determined eligible for specialized treatment programs. The purpose of all provisions in this rule is to promote successful youth re-entry and reduce risk to the community by addressing individual specialized treatment needs through programs that are shown to reduce risk to re-offend.

(b) Applicability. This rule applies only to youth admitted to TYC on or after September 1, 2009.

(c) Definitions. Except as indicated in this rule, definitions for terms used in this rule are found in §85.1 of this title.

(1) Psychoeducational Curriculum--a short term education program delivered by appropriately trained staff to address youth with a low need for specialized treatment. These programs are provided to youth who are participating in the general rehabilitation program. Youth are temporarily pulled out of general rehabilitation programming to participate in specialized groups, and return to general rehabilitation programming upon completion of the curriculum.

(2) Short-Term Treatment Program--a treatment program delivered by a licensed or appropriately trained staff that addresses youth with a medium need for specialized treatment. These programs are provided to youth who are participating in the general rehabilitation program. Youth are temporarily pulled out of general rehabilitation programming to participate in specialized groups and individual counseling, and return to general rehabilitation programming upon completion of the short-term program.

(3) Sex Offense--a reportable adjudication as defined in Article 62.001 of the Code of Criminal Procedure.

(4) Sexual Misbehavior--a documented report of conduct which meets the elements of a sex offense but did not result in an adjudication for a sex offense or any diagnosis of Paraphilia as defined in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.

(d) General Provisions.

(1) Upon admission to TYC, various assessments are conducted to determine whether youth have certain specialized treatment needs and to identify the type of specialized program that is best suited to address those needs. Specialized treatment needs may be re-assessed at any time during a youth’s stay in TYC. Re-assessment may also be conducted following a youth’s return to a high restriction facility upon request of a parole officer, case manager, psychologist, or placement unit staff.

(2) Each youth assessed as having a specialized treatment need will be provided specialized programming. If, due to program resources, a youth cannot be provided the type of specialized treatment program designated herein for his/her assessed need level in his/her highest priority treatment area, the youth will be provided with the most appropriate alternate form of specialized intervention for that treatment need.

(3) Youth with multiple specialized needs will have these needs addressed while under TYC jurisdiction. Some specialized treatments may be provided concurrently and others successively. Youth may have specialized needs addressed while in a high or medium restriction facility or on parole based on assessment results and treatment team recommendations.

(e) Specialized Treatment Needs. The areas of specialized treatment need are set forth in paragraphs (1) - (6) of this subsection, with each area given priority for placement and treatment in the order listed. These rankings are designed to reflect a hierarchy based on urgency of need, ability to meaningfully participate in the program, and duration of the treatment programs.

(1) Medical. Each youth is provided comprehensive medical and dental examinations. Based on the results of these examinations, each youth is assigned a need level for medical or dental services.

(A) High Need--includes youth who have an acute illness, an exacerbation of a chronic medical/dental condition, a serious injury, and/or a need for hospitalization. These youth generally have unstable or unpredictable conditions, and require 24-hour nursing care or supervision beyond the scope of normal infirmary services. Examples include the need for extensive surgery or a complex or invasive treatment necessary to stabilize an acute or chronic condition (e.g., chemotherapy, HIV treatment, late stage or complicated pregnancy, severe systemic infection, or complex bone fracture). The medical needs, until resolved, take precedence over other therapeutic interventions and may temporarily prevent active participation in the agency’s delinquency rehabilitation program. High need youth will be assigned to a placement providing readily available intensive in-patient services and specialty medical resources.

(B) Medium Need--includes youth who have a diagnosed serious medical or dental condition that will likely require frequent access to off-site clinical services and potential access to hospital services for symptom exacerbation. Examples include uncontrolled diabetes, seizure disorder, hypertension, hernia repair, or a functional disability requiring ongoing evaluation or rehabilitation. Functional impairment may require adaptations to the agency’s delinquency rehabilitation program on a short or long-term basis. Medium need youth will be assigned to a placement providing readily available specialty medical resources.

(C) Low Need--includes youth diagnosed with a condition that is mild- moderate in severity and does not require ongoing off-site treatment or monitoring. Low need youth are able to participate meaningfully in the agency’s delinquency rehabilitation program but may be temporarily restricted from an activity due to an accident, injury, or illness of mild- moderate severity. Low need youth will be assigned to a placement with access to routine medical care.

(D) None--includes youth with no medical or dental diagnosis requiring ongoing attention.

(2) Mental Health. The mental health assessment is provided by psychology and psychiatry staff through comprehensive psychological and psychiatric evaluations, using the most current edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on this assessment, each youth is assigned a need level for mental health treatment services.

(A) High Need--includes any youth with a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) who, because of the signs or symptoms of the disorder, is suffering significant impairment in reality testing or communication or major impairment in two or more of the following areas: school, interpersonal relationships, staff relationships, judgment, thinking, or mood. High need youth will be assigned to a TYC-operated stabilization unit or a psychiatric hospital.

(B) Medium Need--includes youth who have a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) with moderate to serious signs or symptoms of that disorder, and who is having moderate to serious impairment in daily living expectations, interpersonal and staff relationships, judgment, thinking, or mood. Youth with a medium need for mental health treatment are assigned to a mental health treatment program.

(C) Low Need--includes youth who have a diagnosed mental disorder (other than a singly diagnosed behavioral or chemical use disorder) but who are able to adequately function in the areas of daily living, interpersonal and staff relationships, judgment, thinking, and mood with supportive psychiatric and psychological services. Low need youth will be assigned to any TYC placement offering appropriate psychological and psychiatric services.

(D) None--includes youth who have no diagnosed condition(s) that meet the criteria listed in subparagraphs (A) - (C) of this paragraph.

(3) Mental Retardation. The diagnosis of mental retardation is made by a psychologist based on the results of an assessment of cognitive functioning and adaptive behavior as defined in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on this diagnosis, each youth is assigned a need level for mental retardation services.

(A) High Need--includes youth who have a diagnosis of Moderate Mental Retardation on Axis II. High need youth will be assigned to a placement offering individualized mental retardation services.

(B) Medium Need--includes youth who have a diagnosis of Mild Mental Retardation on Axis II and a mental health treatment need rating of medium or low. Medium need youth will be assigned to a mental health treatment program for specialized services.

(C) Low Need--includes youth who have a diagnosis of Mild Mental Retardation on Axis II of the Diagnostic and Statistical Manual of Mental Disorders. Low need youth may be assigned to any placement.

(D) None--includes youth who have no diagnosis of Mental Retardation on Axis II of the Diagnostic and Statistical Manual of Mental Disorders.

(4) Sexual Behavior. The sexual behavior treatment assessment is provided by a psychologist, associate psychologist, or licensed sex offender treatment provider through a clinical interview and the agency-approved juvenile sexual offender assessment instrument. The assessment is provided for youth who have been adjudicated for a sex offense or have a credible, documented history of sexual misbehavior. Based on this assessment, each youth is assigned a need level for sexual behavior treatment services.

(A) High Need--includes youth who have an adjudicated sex offense and received an assessment rating of high need for sexual behavior treatment, based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. High need youth will be assigned to participate in a residential sexual behavior treatment program.

(B) Medium Need--includes youth who have an adjudicated sex offense and received an assessment rating of medium need for sexual behavior treatment based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. Medium need youth will be assigned to participate in a short-term sexual behavior treatment program.

(C) Low Need--includes youth who have a history of sexual misbehavior and receive an assessment rating of low need for sexual behavior treatment based on the results of the clinical interview and the agency-approved juvenile sexual offender assessment instrument. Low need youth will be assigned to participate in a psychosexual education curriculum.

(D) None--includes youth who have no history of sexual misbehavior or adjudicated sex offenses.

(5) Capital and Serious Violent Offender. A psychologist or associate psychologist makes a determination of need for capital and serious violent offender treatment for any youth who was found by a court or TYC administrative law judge to have engaged in conduct that resulted in the death of a person, resulted in serious bodily injury to a person, involved using or exhibiting a deadly weapon, and any youth referred by a psychologist based on a reasonable belief the youth is need of capital serious violent offender treatment. The determination is based on the youth’s offense history and psychological assessment of the youth’s need for specialized treatment intervention.

(A) High Need--will be assigned to participate in a residential capital and serious violent offender program.

(B) Medium Need--will be assigned to participate in a short-term program to address aggression and violent behavior issues.

(D) None--includes youth who are assessed as not having a need for capital and serious violent offender treatment.

(6) Alcohol or Other Drug Treatment. Youth identified through a screening process as needing further alcohol or other drug (AOD) assessment will be assessed and diagnosed by a psychologist or associate psychologist using the latest edition of the Diagnostic and Statistical Manual of Mental Disorders. Based on a clinical interview and the results of an agency-approved comprehensive assessment instrument, each youth is assigned a need level for AOD programming.

(A) High Need--includes youth with diagnoses of substance abuse or dependency and who require a residential AOD treatment program based on the results of the agency-approved comprehensive assessment. High need youth will be assigned to participate in a residential AOD program.

(B) Medium Need--includes youth with diagnoses of substance abuse or dependency and who do not require residential treatment based on the results of the agency-approved comprehensive assessment. Medium need youth will be assigned to participate in a short-term AOD program.

(C) Low Need--includes youth without a formal diagnosis of chemical dependency or substance abuse disorders, but who have a risk of drug abuse or dependency based on a history of experimentation, family use, or history of abuse. Low need youth will be assigned to participate in a psychoeducational AOD curriculum.

(D) None--includes youth who have no history of substance abuse or risk of use.

(f) Requirement to Complete Specialized Treatment.

(1) This subsection applies only to youth assessed as having a high or medium treatment need in the following treatment areas: Sexual Behavior; Capital and Serious Violent Offender; or Alcohol or Other Drug Treatment. This subsection does not apply to youth assigned to complete psychoeducational supplemental curricula in these treatment areas.

(2) This subsection does not apply to decisions made by the Release Review Panel under §85.57 of this title.

(3) In order to qualify for transition to a medium restriction placement under §85.45 of this title or to earn release to parole under §§85.55, 85.59, or 85.69 of this title, a youth who has been assessed as having a high or medium need must:

(A) complete the assigned specialized treatment program while in a high restriction facility; or

(B) as recommended by the youth’s treatment team and determined by the final decision authority in consultation with the division director over treatment programming or designee, make sufficient progress in the assigned specialized treatment program with a corresponding reduction in risk in order to allow for the youth to continue the specialized treatment in a less restrictive setting. Risk reduction will be assessed by appropriate assessment instruments. Requirements to continue or complete treatment will be included in the youth’s conditions of placement or conditions of parole, as appropriate.

(g) Individual Exceptions.

(1) The requirement to complete specialized treatment as described in subsection (e) of this section may be waived if the division director over treatment programming or designee determines that the youth is unable to participate in the assigned specialized treatment program or curriculum due to a medical, mental health, or mental retardation condition.

(2) Each youth’s individual circumstances will be considered when determining the most appropriate type of specialized treatment intervention to assign. A youth may be assigned to a specialized program or curriculum designated herein for a higher or lower need level than the youth’s assessed need level for any reason deemed appropriate by the division director over treatment programming or designee.

(h) Specialized Aftercare. Youth who successfully complete one of the following specialized treatment programs, or who otherwise need specialized aftercare as determined by the youth’s treatment team, will receive specialized aftercare on an outpatient basis as needed, recommended by the treatment team, and available:

(1) mental health treatment program;

(2) residential or short-term sexual behavior treatment program; or

(3) residential or short-term alcohol or other drug treatment program.

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 August 3, 2009.

TRD-200903305

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

37 TAC §87.67

The Texas Youth Commission (TYC) adopts an amendment to §87.67, concerning Corsicana Stabilization Unit, without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2907).

The justification for amending the rule is increased legal protections for youth admitted to the Corsicana Stabilization unit as a result of more frequent hearings to prove admission criteria continue to exist.

The amended rule requires that a due process hearing to extend a youth's stay in the unit a second time must be held within 90 days of the first extension hearing, rather than within 12 months of the first extension hearing. The amended rule also specifies that a Level II due process hearing (as described in §95.55 of this title) is the required level of due process in order to extend a parole-status youth in the unit.

No comments were received regarding adoption of the amended rule.

The amendment is adopted under the Human Resources Code, §61.075, which provides TYC with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public, and §61.076, which provides TYC with the responsibility and authority to provide any medical or psychiatric treatment that is necessary.

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 August 3, 2009.

TRD-200903274

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 91. PROGRAM SERVICES

SUBCHAPTER D. HEALTH CARE SERVICES

37 TAC §91.98

The Texas Youth Commission (TYC) adopts new §91.98, concerning therapeutic restraints, with changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2908). Changes to the proposed text consist of minor grammatical corrections, as well as changes described below in the responses to public comments received. Additional changes to the proposed text of this rule are detailed in the notice of adoption for §97.23, which is also published in this issue of the Texas Register.

The justification for the new rule is the protection of youth from serious harm caused by self-injury or refusal of medical treatment. The new rule contains provisions for administering restraints when clinically indicated for medical or mental health purposes.

Comments regarding the rule were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with TYC's responses.

Comment: Subsection (f)(3)(C) should comply with the National Commission on Correctional Health Care standards for the order of a clinical restraint, which state that generally an order for a clinical restraint is not to exceed an hour and that health monitoring consists of checks for circulation and nerve damage, airway obstruction, and psychological trauma.

Response: TYC agrees that therapeutic restraints should be applied no longer than is absolutely necessary. Subsection (f)(3)(D) has been added to the adopted text to require the medical provider's approval to continue a medical restraint beyond one hour, and every four hours thereafter. The rule already contains a provision which requires a healthcare professional to monitor a youth's condition for the duration of the medical restraint.

Comment: The rule should include a requirement for health care staff to document the 15-minute checks during medical restraints.

Response: Subsection (f)(4)(B) of the adopted text has been amended to require documentation of the checks in the youth's medical record.

Comment: The rule should include provisions related to the types of mechanical restraints that are approved for use, annual inspections, removal from use of any defective equipment, requirements for proper application, and prohibitions on restraining youth in a prone, supine, or lateral position with arms and legs secured behind the youth's back.

Response: The types of approved restraint equipment, guidelines for proper application of mechanical restraint, and prohibited restraint techniques are addressed in 37 TAC §97.23. No changes were made to the proposed text as a result of the comment.

The new section is adopted under the Human Resources Code, §61.076, which provides TYC with the authority to provide any medical or psychiatric treatment that is necessary for a child committed to the commission.

§91.98.Therapeutic Restraints

(a) Purpose. This rule establishes the criteria, procedures, and limitations for use of therapeutic restraints when clinically indicated for medical or mental health purposes.

(b) Applicability. This rule applies to all Texas Youth Commission (TYC) residential facilities.

(1) For criteria and procedures relating to use of force, see §97.23 of this title.

(2) For criteria and procedures on administering a psychotropic drug in a psychiatric emergency when a youth will not give consent for the administration, see §91.92 of this title.

(d) Definitions.

(1) Mental Health Professional--has the meaning assigned by §91.87 of this title.

(2) Therapeutic Restraint--a restraint used solely for medical or mental health purposes.

(3) Medical Provider--a:

(A) physician; or

(B) mid-level practitioner, such as a nurse practitioner or physician's assistant, acting under the direction of a physician.

(4) Psychiatric Provider--a:

(A) psychiatrist, or

(B) psychiatric physician's assistant or psychiatric nurse practitioner acting under the direction of a psychiatrist.

(e) General Provisions.

(1) Therapeutic restraint equipment must be used only in a manner consistent with its intended design and purpose.

(2) Only therapeutic restraint equipment approved by the executive commissioner or designee may be used in TYC facilities.

(3) TYC staff who may be expected to participate in application of therapeutic restraints or monitoring, managing, or approving of the restraint must receive special training and will not participate in its implementation until the training has been received. The training will include proper use and application of restraint devices and applicable TYC policies and guidelines regarding the implementation, documentation, and possible continuation of the restraint.

(4) If facility resources are not sufficient to support the procedural requirements as specified in this rule, therapeutic restraint must not be employed.

(5) Prior to placing a youth in any therapeutic restraint device designed to secure a person in a face-upward position, a medical provider shall be consulted if the youth is pregnant or has a seizure disorder or any other medical condition that contraindicates such restraint.

(6) The facility administrator or designee will ensure that the parent/guardian of a youth placed in therapeutic restraint is notified within 24 hours after the restraint is initiated.

(f) Therapeutic Restraints for Medical Purposes.

(1) Authorized Facilities. Medical restraints are authorized only at high restriction facilities that operate an on-site infirmary.

(2) Criteria for Use. Medical restraints may be used only to administer medical treatment to a resistant youth when failure to administer the treatment could have serious health implications.

(3) Authorization for Use.

(A) Only a medical provider may authorize a medical restraint. The authorization must be based on a determination that all appropriate less restrictive interventions have proved unsuccessful in controlling the youth's behavior.

(B) An order for medical restraint must specify the type of restraint to be used, duration of the restraint, any special instructions, and justification for the restraint.

(D) A nurse must contact the medical provider prior to the expiration of the first hour and every four hours thereafter to obtain approval to continue the restraint.

(4) Procedural Requirements.

(A) A medical provider or nurse must be present during the application of restraints.

(B) Health care staff must check the youth every 15 minutes and assess the youth's condition, including circulation, position, and open airway if wrist and/or ankle soft restraints are used. Such checks will be documented in the youth's medical record.

(C) A nurse will perform range-of-motion exercises at least every 30 minutes for a period of at least five minutes if wrist and/or ankle soft restraints are used.

(D) Regularly scheduled meals and drinks are served on appropriate food ware for safety.

(E) As soon as possible, but no later than 12 hours after application of restraints, the medical provider will consult with the facility administrator or designee to develop and implement a less restrictive treatment plan.

(F) Staff will provide continuous visual supervision of the youth while in restraints.

(G) Staff will provide an opportunity for elimination of bodily waste at least every two hours.

(H) A medical restraint must be terminated upon the earlier of:

(i) a determination by the medical provider that the youth's behavior no longer justifies application of medical restraints; or

(ii) expiration of the provider's order.

(I) If the restraint was not ordered by the youth's treating medical provider, the medical provider ordering the restraint must consult with the youth's treating medical provider and document the contact in the youth's medical record.

(g) Therapeutic Restraints for Mental Health Purposes.

(1) Authorized Facilities. Mental health restraints are authorized only at facilities designated by the executive commissioner or designee.

(2) Criteria for Use. Therapeutic restraints for mental health purposes are authorized for use only when the restraint is necessary to prevent serious self-injury.

(3) Authorization for Use.

(A) Only a licensed doctoral psychologist or psychiatric provider may authorize a mental health restraint. The authorization must be based on a determination that all appropriate less restrictive interventions have proven unsuccessful in controlling the youth's self-injurious behavior.

(B) At least one staff trained specifically in mental health restraint techniques must be involved in any mental health restraint procedure. If at least one trained staff is not available to supervise, the restraint shall not be employed.

(C) Prior to the expiration of the first hour of restraint, the youth shall be evaluated face-to-face by a mental health professional who may recommend approval to continue the restraint.

(D) In order to recommend continuation of the restraint, the mental health assessment will verify that the current use of the restraint is not having a psychologically damaging effect and that the need for the restraint is not due to an immediate psychiatric crisis which requires alternative interventions.

(E) Approval from a psychiatric provider or a licensed doctoral psychologist must be obtained to continue the restraint beyond one hour. If a determination is made that the behavior is due to a mental health problem, the youth shall be provided appropriate mental health services, including referral to the Corsicana Stabilization Unit or state hospital if he/she meets the admission criteria under §87.67 or §87.69 of this title.

(F) Additional face-to-face assessment by a mental health professional is required to extend the restraint beyond four hours and at least every four hours thereafter if the restraint continues. Only a psychiatric provider or licensed doctoral psychologist may approve a recommended extension.

(G) The facility administrator or designee may direct additional mental health assessment at any time.

(H) The restraint shall be terminated as soon as the youth's behavior indicates the threat of imminent self-injury is absent, as determined by a psychiatric provider or licensed doctoral psychologist.

(I) No order or approval for mental health restraint may be in force for longer than 12 hours. If the restraint is still required for the youth's safety, a psychiatric provider must directly observe the youth and provide written orders, which may include psychotropic medication when clinically indicated.

(4) Procedural Requirements.

(A) The only approved mental health restraint method is full-body restraint, face-upward, on a bed equipped with cloth or leather mechanical restraint straps/devices.

(B) Staff shall ensure the youth's personal dignity by providing a protected environment and as much privacy as possible.

(i) regular checks, performed by a nurse, of the physical condition of the youth and the placement of the restraints within the first 30 minutes and every hour during the restraint;

(ii) an assessment of circulation, position, and open airway checks at least every 15 minutes by trained staff;

(iii) opportunity for range of motion exercises at least every 30 minutes for a period of at least five minutes;

(iv) regularly scheduled meals and drinks served on appropriate food ware for safety;

(v) opportunity for elimination of bodily waste at least every two hours; and

(vi) continuous visual supervision by staff.

(D) A psychiatric provider or licensed doctoral psychologist must develop a detailed plan for clinical follow-up.

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 August 3, 2009.

TRD-200903270

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 93. YOUTH RIGHTS AND REMEDIES

37 TAC §93.31, §93.53

The Texas Youth Commission (TYC) adopts amendments to §93.31, concerning youth grievance system and §93.53, concerning appeals to the executive commissioner, without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2910).

The justification for amending the sections is the operation of a more effective and responsive youth grievance system and the availability of accurate and current policies concerning TYC operations and programming.

The amended §93.31 requires that grievances involving healthcare issues must be assigned for resolution to an individual with the appropriate clinical expertise and credentials to properly resolve the grievance. The amended rule also establishes that appeals of responses to grievances involving healthcare issues will be routed to the executive commissioner’s office for resolution. There is no local-level appeal for such issues.

The amended §93.53 contains a corresponding revision to reflect the change in §93.31 which requires direct appeal to the executive commissioner for appeals involving healthcare grievance resolutions. The amended rule also contains corresponding revisions to reflect the changes in Chapter 95 and Chapter 97, which are also adopted in this issue of the Texas Register.

No comments were received regarding adoption of the amended rules.

The amendments are adopted under the Human Resources Code §61.034, which provides TYC with the authority to make rules appropriate to the proper accomplishment of its functions, and §61.0422, which requires the TYC to keep information about each written complaint filed with TYC by a child receiving services from TYC or the child's parent or guardian.

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 August 3, 2009.

TRD-200903271

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 95. BEHAVIOR MANAGEMENT AND YOUTH DISCIPLINE

The Texas Youth Commission (TYC) adopts the repeal of §95.1 (concerning discipline system overview), §95.3 (concerning rules of conduct), §95.7 (concerning reclassification consequence), §95.9 (concerning parole revocation consequence), §95.11 (concerning disciplinary consequences), §95.13 (concerning on-site disciplinary consequences), §95.15 (concerning parole minor disciplinary consequences), §95.16 (concerning primary intervention program), §95.17 (concerning behavior management program), §95.21 (concerning aggression management program), §95.51 (concerning level I hearing procedure), §95.55 (concerning level II hearing procedure), §95.57 (concerning level III hearing procedure), §95.59 (concerning level IV hearing procedure), and §95.71 (concerning mental health status review hearing procedures) without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2915).

The justification for repealing the rules is the availability of accurate and up-to-date information concerning TYC programming and operations.

The repeal of §95.1 and §95.3 allows for significantly revised rules to be published in their place. The revised rules are adopted as new rules in this issue of the Texas Register.

The repeal of §95.7 reflects that TYC no longer reclassifies youth as a disciplinary consequence. Youth may be reclassified as result of changes in any number of individual factors, but not directly as a consequence for violating facility rules.

The repeal of §95.9 and §95.15 allows for content relating to disciplinary consequences for youth on parole to be moved to new §95.4, which is adopted in this issue of the Texas Register.

The repeal of §95.11 and §95.13 allows for content relating to disciplinary consequences for youth in residential facilities to be moved to new §95.3, which is adopted in this issue of the Texas Register.

The repeal of §§95.16, 95.17, and 95.21 reflects that TYC no longer operates these programs at its facilities.

The repeal of §§95.51, 95.55, 95.57, and 95.71 allows for significantly revised rules to be published in their place. The revised rules are adopted as new rules in this issue of the Texas Register.

The repeal of §95.59 will allow for content relating to detention review hearings to be moved to new §95.59 and new §95.61, which are adopted in this issue of the Texas Register.

No comments were received regarding adoption of the repealed rules.

SUBCHAPTER A. BEHAVIOR MANAGEMENT

37 TAC §§95.1, 95.3, 95.7, 95.9, 95.11, 95.13, 95.15 - 95.17, 95.21

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903279

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §§95.51, 95.55, 95.57, 95.59, 95.71

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903278

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 95. BEHAVIOR MANAGEMENT AND YOUTH DISCIPLINE

The Texas Youth Commission (TYC) adopts new §95.1 (concerning behavior management system overview), §95.2 (concerning youth privilege system), §95.4 (concerning rules and consequences for youth on parole), §95.20 (concerning cooling off period for youth out of control), §95.57 (concerning level III hearing procedure), §95.59 (concerning detention for youth with pending charges), §95.61 (detention for youth pending level I or II hearings), and §95.71 (concerning mental health status review hearings), without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2916).

The Texas Youth Commission (TYC) also adopts new §95.3 (concerning rules and consequences for residential facilities), §95.17 (concerning Redirect program), §95.50 (concerning definitions for due process hearings), §95.51 (concerning level I hearing procedure), and §95.55 (concerning level II hearing procedure), with changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2916).

Changes to the proposed text of §95.3 consist of clarification that the requirement to provide youth with a copy of an incident report applies any time an incident report is written for a rule violation, not just for major rule violations.

Changes to the proposed text of §95.17 include clarification to show that a Manifestation Determination Review does not need to occur before the administrator approves the request to hold a Level II hearing. However, the review must be conducted before the youth is admitted to the Redirect program. Additional changes to the proposed text are outlined below, as described in the responses to public comments received.

Changes to the proposed text of §95.50 consist of correcting minor typographical errors in paragraph (6)(B) and paragraph (9).

Changes to the proposed text of §95.51 include clarification to show that in cases where a youth on parole has pending adult charges for a felony offense, TYC can defer a revocation hearing only if there is a written request from the local authorities to do so. Minor typographical errors were also corrected.

Changes to the proposed text of §95.55 include clarification that the requirement to hold an accelerated Level II hearing for youth being held in the security unit only applies in cases where the youth is being held due to potential interference with a pending hearing. Additional minor changes were made to correct references to certain TYC staff titles.

The justification for the new rules is the establishment of a more effective system for managing youth behavior, as well as the availability of accurate and up-to-date information concerning TYC programming and operations.

New §95.1 establishes the framework for TYC's new behavior management system. The system places increased emphasis on incentives for positive behavior and non-disciplinary interventions to manage youth misbehavior.

New §95.2 establishes a rating system for youth behavior and a privilege system that provides positive reinforcement for complying with behavioral objectives.

New §95.3 defines major and minor rule violations for youth in residential facilities, the possible consequences for rule violations, and the required level of due process.

New §95.4 defines rule violations for youth on parole, the possible consequences for rule violations, and the required level of due process.

New §95.17 establishes the Redirect program as a means of delivering intensive interventions in a structured environment for youth who have engaged in certain serious rule violations.

New §95.20 republishes the content of §97.35 under a new section number. §97.35 is repealed in this issue of the Texas Register.

New §95.50 consolidates definitions used throughout the subchapter pertaining to due process hearings into one rule.

New §95.51 establishes the requirements of Level I due hearings, which are the highest level of due process available to TYC youth.

New §95.55 establishes the requirements of Level II due process hearings.

New §95.57 contains establishes the requirements of Level III due process hearings.

New §95.59 establishes the requirements for detaining youth in TYC security units and holding detention review hearings while criminal or delinquent charges are pending or when awaiting a court hearing or trial.

New §95.61 establishes the requirements for detaining youth in TYC security units or community detention facilities and holding detention review hearings when a Level I or II hearing is scheduled.

New §95.71 establishes the requirements for conducting a Level II hearing for the purpose of admission or extension in the Corsicana Stabilization Unit.

Comments regarding adoption of several of the rules were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with the commission's responses.

§95.17.

Comment: Program eligibility currently includes "sexual misconduct." This is too inclusive, since the Re-Direct Program is meant to address aggressive behavior and the definition of "sexual misconduct" included in proposed §95.3(i)(21) includes behavior that is not aggressive. We propose excluding proposed §95.3(i)(21)(D)(exposure) and (E)(masturbation) in addition to §95.3(g)(21)(C)(kissing) from the eligibility criteria.

Response: While many of the Redirect-eligible rule violations listed in the rule are related to aggressive behavior, the stated purpose of the program is to address certain "serious" rule violations. Conduct such as masturbating in an open and obvious way or exposing oneself knowing the act is likely to be observed by another person could subject other youth and staff to sexual harassment. These are serious rule violations that may warrant temporary placement in a restricted setting that provides for more intensive treatment interventions. No changes were made to the proposed text as a result of the comment.

Comment: The proposed rule should be amended to require that the manifestation determination review be held by the youth's Admission, Review, and Dismissal (ARD) committee.

Response: The definition provided in subsection (c)(5) states that the manifestation determination review is conducted by the youth's ARD committee. No changes were made to the proposed text as a result of the comment.

Comment: The proposed rule allows a parent to consent to the placement of youth in the Redirect program even if the ARD committee determines that the conduct was a manifestation of the youth's disability. Parental consent to a disciplinary placement, when the youth's conduct is determined to be a manifestation of the youth's disability, is not allowed under the Individuals with Disabilities Act (IDEA). TYC is confusing placement with a behavioral intervention plan under IDEA. Under IDEA, the ARD committee could offer the student the positive behavioral supports offered in the Redirect program, but could not change the student's placement by moving them to the special unit designated for the Redirect Program.

Response: Subsection (f)(1)(B) of the proposed rule text provides that when the conduct is determined to be a manifestation of the youth's disability, placement in the Redirect program with parental approval is allowable only when the change in placement is a part of the youth's behavioral intervention plan. No changes were made to the proposed text as a result of the comment.

Comment: The proposed rule states that a manifestation determination review is not required if the rule violation includes possession of a weapon or the infliction of serious bodily injury. This does not comply with IDEA. The ARD committee is still required to conduct a manifestation determination. However, if the ARD committee finds the conduct is a manifestation of the youth's disability, the youth may be placed in an alternative educational setting for up to 45 days.

Response: TYC agrees with the comment. Subsection (f) of the adopted rule text has been amended to require a manifestation determination review for all youth receiving special education services. The amended text will also reflect that in such cases, a youth may be placed in the Redirect program regardless of whether the ARD committee finds that the conduct is a manifestation of a disability.

Comment: Subsection (h) should be amended to require weekly meetings with a psychologist.

Response: TYC agrees with the recommendation. New subsection (h)(12) has been added to the adopted text which requires a psychologist to conduct weekly mental health status exams.

Comment: The rule should describe the additional program requirements for each step of Redirect. This very important component of the program - increasing level of counseling and time spent out of their cells - distinguishes the Redirect Program from the Behavior Management Program.

Response: The steps of the program referred to in the comment are intended to serve as guidelines to implement provisions of the rule. These steps provide greater detail concerning levels of counseling, time out of room, and other reintegration activities. The youth's individual treatment plan may adjust the number of steps and durations/locations of programming activities based on the youth's current behavior and progress. Because these activities are to a large degree individualized, they are not appropriate for codification by rule. However, the program activities generally associated with each step will be documented in management procedures which will be publicly available. No changes were made to the proposed text as a result of the comment.

Comment: The rule should require that the multi-disciplinary team conduct a review of the youth's written, individual plan each time the youth is referred to security. The multi-disciplinary team should consider whether the youth's repeated referrals to security are related to a disability, and whether the youth would be better served in a specialized treatment program that will address the youth's disability.

Response: As established under 37 TAC §97.51, levels of need for specialized treatment programs are generally assessed by psychologists. The Redirect Program requires weekly meetings with a psychologist. The program also requires a psychologist to serve on the youth's multi-disciplinary team, which meets at least weekly to discuss the youth's progress or lack thereof. As provided in the adopted rule text, the psychologist will have ample information concerning the youth to determine whether a re-assessment for placement in a specialized treatment program is warranted. No changes were made to the proposed text as a result of the comment.

Comment: A new criterion for release should be added reflecting that a youth should be considered inappropriate for the Redirect Program if the youth has been referred to security three times during a stay in Redirect.

Response: TYC disagrees that repeated referrals to the Security Program would indicate the Redirect Program is an inappropriate placement. The dangerous or disruptive behaviors that result in placement in Redirect may continue for a time, and must be appropriately managed without adversely affecting other youth in the program. Often, security referrals do not result in admission to the Security Program, and may serve as an opportunity for a youth to gain control of his/her behavior. Instituting an arbitrary limit on the number of security referrals which would constitute grounds for release from the Redirect Program could result in youth intentionally committing rule violations for the sole purpose of release from the program. No changes were made to the proposed text as a result of the comment.

Comment: There should be a cap on the number of times (no more than twice in a 12 month period, except with central office review and approval) a youth can be admitted into the Redirect Program.

Response: As part of its management procedures for implementing this rule, TYC includes a similar restriction. These procedures require that prior to placing a youth in the Redirect Program for the third time at any one facility, the facility must provide justification to and receive approval from the regional director. No changes were made to the proposed text as a result of the comment.

Comment: This section should include a timeframe for appeal. Appeal should be expedited. It should be completed no later than the youth's first seven days in the Redirect program.

Response: While TYC agrees that such appeals should be expedited, appeals of placement in the Redirect program are addressed in a separate rule, 37 TAC §95.53, which provides a 30-day response timeframe for all appeals to the executive commissioner. However, TYC maintains internal management processes for prioritizing all appeals to the executive commissioner. Generally, appeals where a youth's confinement is at issue (such as community detention, extensions in the Security Program, etc.) are given the highest priority. No changes were made to the proposed text as a result of the comment.

Comment: A youth's parent or guardian should be notified within 24 hours after referral to the Redirect program, rather than 24 hours after the due process hearing. Early notification is necessary, particularly for youth receiving special education because their parents must be given an opportunity to participate in the ARD.

Response: Notification to the parent/guardian of an admission to the Redirect program is in addition to earlier notifications required under ARD committee procedures and due process hearing procedures. Procedures for conducting ARD committee meetings and due process hearings are not appropriate for inclusion in this rule. No changes were made to the proposed text as a result of the comment.

§§95.51, 95.55, and 95.57.

Comment: The rules should include provisions for whether or not youth were provided accommodations for their disabilities prior to the level I, II, III hearings and whether or not the alleged violation was a result of the youth's disability.

Response: While TYC agrees that certain administrative actions require a formal determination of whether a youth's disability was appropriately accommodated and whether the youth's misbehavior was caused by a disability, TYC does not agree that these due process hearing rules are the appropriate placement for such provisions. The nature of the pending administrative action determines whether or not a review of a youth's disability and accommodations is legally required. TYC publishes separate rules that describe specific administrative actions and the post-hearing process for implementing these actions. It is in these rules that any legally required reviews of a youth's disability should be addressed. Though TYC does not agree that the due process rules should contain the recommended provisions, it should be noted that during any of these hearings, youth are entitled to present any defenses and information related to extenuating circumstances. This allows for any matters related to a youth's disability to be presented when the youth (or advocate or attorney) believes such is relevant to the alleged rule violation, even if the recommended review is not legally required. No changes were made to the proposed text as a result of the comment.

SUBCHAPTER A. BEHAVIOR MANAGEMENT

37 TAC §§95.1 - 95.4, 95.17, 95.20

The new rules are adopted under Human Resources Code §61.045, which assigns TYC the responsibility for the welfare, custody, and rehabilitation of the children in a school, facility, or program operated or funded by TYC, and §61.075, which provides TYC with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The new rules are also adopted under Human Resources Code §61.076, which provides TYC with the authority to require a committed child to participate in moral, academic, vocational, physical, and correctional training and activities, and to require the modes of life and conduct that seem best adapted to fit the child for return to full liberty without danger to the public.

§95.3.Rules and Consequences for Residential Facilities.

(a) Purpose. The purpose of this rule is to establish the actions that constitute violations of the rules of conduct youth will be expected to follow while in residential facilities. Violations of the rules may result in disciplinary consequences that are proportional to the severity and extent of the violation. Appropriate due process must be followed before imposing consequences.

(b) Applicability. This rule applies to youth assigned to a residential facility.

(1) Bodily Injury--physical pain, illness, or impairment of physical condition. Fleeting pain or minor discomfort does not constitute bodily injury.

(2) Multi-Disciplinary Team--has the meaning assigned by §85.1 of this title.

(3) Residential Facility--includes both high and medium restriction residential placements.

(4) Attempting to Commit--engaging in conduct that amounts to more than mere planning, but failing to commit the intended rule violation.

(d) General Provisions.

(1) Rules in this policy may be restated or otherwise adapted to accommodate a particular program to help clarify expected behavior in that program. All adapted or restated rules shall remain consistent with the general rules of conduct.

(2) The rules of conduct must be posted in a visible area accessible to youth in each facility and program.

(3) Repeated violations of any rule of conduct may result in more serious disciplinary consequences.

(4) Youth may be issued more than one disciplinary consequence for a rule violation proven in a Level II or III due process hearing held in accordance with §95.55 or §95.57 of this title, respectively.

(5) Major rule violations require the completion of a formal incident report.

(6) A youth's disciplinary record shall consist only of rule violations that are proven through a Level I or II due process hearing in accordance with §95.51 or §95.55 of this title, respectively.

(7) Within 24 hours after a report of a major rule violation or a minor rule violation resulting in a security referral, a case worker, program specialist, or other appropriate non-involved staff member will review the incident and assess whether to request a Level II due process hearing in order to pursue major consequences and/or placement of the violation on the youth's disciplinary record. The facility administrator or designee will determine whether or not to hold a Level II due process hearing. When a youth is found to be in possession of prohibited money as defined in this rule, a Level II due process hearing is required to seize the money. Seized money will be placed in the student benefit fund in accordance with §95.55 of this title.

(8) Except as noted in paragraph (9) of this subsection, minor rule violations will be documented on the appropriate activity log. A formal incident report is not required.

(9) A minor rule violation that escalates to the point that the current program/activity cannot continue due to the disruption, or that poses a substantial risk to personal safety or facility security, must be documented on a formal incident report. In high restriction facilities, this type of minor rule violation will also include a referral to the security unit.

(10) Any time a formal incident report is prepared for an alleged rule violation, a copy of the incident report must be given to the youth within 24 hours after the alleged violation.

(11) Although certain rule violations may not result in immediate disciplinary consequences, a rule violation proven through a Level II due process hearing may be considered upon expiration of the youth's minimum length of stay in determining whether a youth is in need of additional rehabilitation.

(12) Each multi-disciplinary team will review all privilege suspensions for youth on its caseload at least once per week. The multi-disciplinary team may:

(A) lessen the duration of the suspension or allow the youth to accrue certain privileges for use after the period of suspension is complete as an incentive to display positive behavior; or

(B) extend (one time only) or modify an on-site privilege suspension issued by direct care staff if warranted by the youth's behavior.

(e) Consequences for High Restriction Facilities.

(1) Major Disciplinary Consequences.

(A) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for minor rule violations resulting in a referral to the security unit or major rule violations, and only if the rule violation is proven through a Level II due process hearing in accordance with §95.55 of this title.

(B) Loss of Transition Eligibility--a youth who has not completed the minimum length of stay will serve an additional month in high restriction facilities prior to becoming eligible for transition to a medium restriction facility under §85.45 of this title. This consequence may only be issued if it is proven through a Level II due process hearing that the youth committed:

(i) assault causing bodily injury to youth or staff, as defined in subsection (i)(3) - (4) of this section; or

(ii) sexual misconduct as defined in subsection (i)(21)(A) - (B) of this section.

(2) Minor Disciplinary Consequences.

(A) Suspension of Privileges by Multi-Disciplinary Team. A youth has one or more privileges removed for up to 14 calendar days from the date of the multi-disciplinary team meeting, or has his/her privileges adjusted to those associated with a lower stage until the next scheduled meeting. This consequence may be issued for major or minor rule violations. In order to issue this consequence, the multi-disciplinary team must:

(i) meet with the youth to discuss the youth's behavior and potential consequences;

(ii) consider any on-site suspension of privileges already imposed for the behavior; and

(iii) document the discussion of the youth's conduct and consequence imposed.

(B) On-Site Suspension of Privileges. A youth has one specific privilege removed for up to seven calendar days from the date of the violation or all privileges removed for up to three calendar days. This consequence may be issued by a staff member with direct supervisory responsibility for the youth after witnessing a major or minor rule violation. This consequence should be issued only after non-disciplinary interventions have been attempted. The staff member must document the conduct and consequence and discuss the consequence and the reasons for it with the youth.

(f) Consequences for Medium Restriction Facilities.

(1) Major Consequences.

(A) Disciplinary Transfer--a youth assigned to a medium restriction facility is transferred to a high restriction facility. Disciplinary transfer may be issued only for major rule violations that are proven through a Level II due process hearing in accordance with §95.55 of this title. This consequence does not apply to youth who are on parole status and who are currently assigned to a medium restriction facility.

(B) Major Suspension of Privileges--a youth has all privileges suspended for 30 calendar days from the date of the hearing. This consequence may be issued only for major rule violations that are proven through a Level II due process hearing.

(2) Minor Consequences. Minor disciplinary consequences include but are not limited to consequences described herein. Minor consequences may only be imposed following a Level III due process hearing held in accordance with §95.57 of this title.

(A) Privilege Suspension--a suspension of one or more privileges for no more than 14 calendar days.

(B) Community Service Hours--disciplinary assignment of up to 40 hours in an approved community service assignment.

(C) Trust Fund Restriction--youth is restricted from accessing his/her accrued personal funds for up to seven calendar days.

(D) Facility Restriction--youth is restricted for up to 48 hours from participating in any activity outside the assigned placement other than the approved constructive activities.

(g) Review and Appeal of Consequences.

(1) All minor disciplinary consequences issued by staff other than the youth's multi-disciplinary team will be reviewed for policy compliance by the youth's assigned case worker or dorm supervisor within one workday of issuance. All minor consequences issued by the youth's multi-disciplinary team will be reviewed for policy compliance and consistency by the facility administrator or designee.

(2) The facility administrator or designee:

(A) must review any minor consequence issued for longer than 24 hours within 24 hours after issuance of the consequence; and

(B) may overturn or modify any privilege suspension determined to be excessive or not validly related to the nature or seriousness of the conduct.

(3) Youth may appeal major disciplinary consequences by filing an appeal in accordance with §95.51 or §95.55 of this title.

(h) Placement Disposition Options. In accordance with §95.17 of this title, youth in high restriction facilities may be placed in the Redirect program when the youth is found to have engaged in certain major rule violations. Placement in the Redirect program is not a disciplinary consequence.

(i) Major Rule Violations. It is a violation to knowingly violate, attempt to violate, or help someone else violate any of the following:

(1) Assault--Unauthorized Physical Contact with another Youth (No Injury)--making unauthorized physical contact with another youth that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.

(2) Assault--Unauthorized Physical Contact with Staff (No Injury)--intentionally making unauthorized physical contact with a staff member, contract employee, or volunteer that does not result in bodily injury, such as, but not limited to, pushing, poking, and grabbing.

(3) Assault Causing Bodily Injury to Another Youth--intentionally and knowingly or recklessly engaging in conduct that causes another youth to suffer bodily injury.

(4) Assault Causing Bodily Injury to Staff--intentionally and knowingly or recklessly engaging in conduct that causes a staff member, contract employee, or volunteer to suffer bodily injury.

(5) Attempted Escape--committing an act that amounts to more than mere planning but that fails to effect an escape.

(6) Chunking Bodily Fluids--causing a person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, and/or feces of another with the intent to harass, alarm, or annoy another person.

(7) Distribution of Prohibited Substances--distributing or selling any prohibited substances or items.

(8) Escape--leaving a high or medium restriction residential placement without permission or failing to return from an authorized leave.

(9) Extortion or Blackmail--demanding or receiving favors, money, actions, or anything of value from another in return for protection against others, to avoid bodily harm, or in exchange for not reporting a violation.

(10) Fighting Not Resulting in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that does not result in bodily injury.

(11) Fighting that Results in Bodily Injury--engaging in a mutually instigated physical altercation with another person or persons that results in bodily injury.

(12) Fleeing Apprehension--running from or refusing to come to staff when called and such act results in disruption of facility operations.

(13) Two or More Failures to Comply with Written Reasonable Request (for Youth in Medium Restriction Residential Placement)--failing on two or more occasions to comply with a written reasonable request of staff. If the expectation is daily or weekly, the two failures to comply must be within a 30-day period. If the expectation is monthly, the two failures to comply must be within a 90-day period.

(14) Misuse of Medication--using medication provided to the juvenile by authorized personnel in a manner inconsistent with specific instructions for use, including removing the medication from the dispensing area.

(15) Participating in a Major Disruption of Facility Operations--intentionally participating with two (2) or more persons in conduct that poses a threat to persons or property and substantially disrupts the performance of facility operations or programs.

(16) Possession of Prohibited Items--possessing the following prohibited items:

(A) cellular telephone;

(B) matches or lighters;

(D) money in excess of the amount or in a form not permitted by facility rules (see §95.55 of this title for procedures concerning seizure of such money);

(E) pornography;

(F) items which have been fashioned to produce tattoos or body piercing;

(G) cleaning products when the youth is not using them for a legitimate purpose; or

(H) other items that are being used inappropriately in a way that poses a danger to persons or property or threatens facility security.

(17) Possession of a Weapon--possessing a weapon or item(s) which has been made or adapted for use as a weapon.

(18) Possession or Use of Prohibited Substances and Paraphernalia--possessing or using any unauthorized substance, including controlled substances or intoxicants (including alcohol and tobacco), medications not prescribed for the juvenile by authorized medical or dental staff, tobacco products, similar intoxicants, or related paraphernalia such as that used to deliver or make any prohibited substance.

(19) Refusing a Drug Screen--refusing to take a drug screen when requested to do so by staff or tampering with or contaminating the urine sample provided for a drug screen. (Note: If the youth says he/she cannot provide a sample, the youth must be given water to drink and two hours to provide the sample.)

(20) Refusing a Search--refusing to submit to an authorized search of person or area.

(21) Sexual Misconduct--intentionally and knowingly engaging in any of the following:

(A) causing contact, including penetration (however slight), between the penis and the vagina or anus; between the mouth and penis, vagina or anus; or penetration (however slight) of the anal or genital opening of another person by hand, finger or other object;

(B) touching or fondling, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person;

(D) exposing the anus, buttocks, breasts, or genitals to another or exposing oneself knowing the act is likely to be observed by another person;

(E) masturbating in an open and obvious way, whether or not the genitals are exposed.

(22) Stealing--intentionally taking property from another without permission and the property has an estimated value of $100 or more.

(23) Tampering with Safety Equipment--intentionally tampering with, damaging, or blocking any device used for safety or security of the facility. This includes, but is not limited to, any locking device or item that provides security access or clearance, any fire alarm or fire suppression system or device, video camera, radio, telephone (when the tampering prevents it from being used as necessary for safety and/or security), handcuffs, or shackles.

(24) Tattooing/Body Piercing--engaging in tattooing or body piercing of self or others. Tattooing is defined as making a mark on the body by inserting pigment into the skin.

(25) Threatening another with a Weapon--intentionally and knowingly threatening another with a weapon. A weapon is something that is capable of inflicting bodily injury in the manner in which it is being used.

(26) Vandalism--intentionally causing $100 or more in damage to state or personal property of another.

(27) Violation of any Law--violating a Texas or federal law that is not already defined as a major or minor rule violation.

(j) Minor Rule Violations. It is a violation to knowingly violate, attempt to violate, or help someone else violate any of the following:

(1) Breaching Group Confidentiality--disclosing or discussing information provided in a group session to another person not present in that group session.

(2) Disruption of Program--engaging in behavior that requires intervention to the extent that the current program of the youth and/or others is disrupted. This includes, but is not limited to:

(A) disrupting a scheduled activity;

(B) being loud or disruptive without staff permission;

(D) refusing to participate in a scheduled activity or abide by program rules.

(3) Failure to Abide by Dress Code--failing to follow the rules of dress and appearance as provided by facility rules.

(4) Failure to do Proper Housekeeping--failing to complete the daily chores of cleaning the living environment to the expectedstandard.

(5) Gang Activity--participating in an activity or behavior that promotes the interests of a gang or possessing or exhibiting anything related to or signifying a gang, such as, but not limited to, gang-related literature, symbols, or signs.

(6) Gambling or Possession of Gambling Paraphernalia--engaging in a bet or wager with another person or possessing paraphernalia that may be used for gambling.

(7) Horseplay--engaging in wrestling, roughhousing, or playful interaction with another person or persons that does not rise to the level of an assault. Horseplay does not result in any party getting upset or causing injury to another.

(8) Improper Use of Telephone/Mail/Computer--using the mail, a computer, or the telephone system for communication that is prohibited by facility rules, at a time prohibited by facility rules, or to inappropriately access information.

(9) Lending/Borrowing/Trading Items--lending or giving to another youth, borrowing from another youth, or trading with another youth possessions, including food items, without permission from staff.

(10) Lying/Falsifying Documentation/Cheating--lying or withholding information from staff, falsifying a document, and/or cheating on an assignment or test.

(11) Possession of an Unauthorized Item--possessing an item the youth is not authorized to have (possession of which is not a major rule violation), including items not listed on the youth's personal property inventory. This does not include personal letters or photographs.

(12) Refusal to Follow Staff Verbal Instructions--deliberately failing to comply with a specific reasonable verbal instruction made by a staff member.

(13) Stealing--intentionally taking property from another without permission and the property has an estimated value of less than $100.

(14) Threatening Others--making verbal or physical threats toward another person or persons.

(15) Undesignated Area--being in any area without the appropriate permission to be in that area.

(16) Vandalism--intentionally causing less than $100 in damage to state or personal property.

§95.17.Redirect Program.

(a) Purpose. The Redirect program functions as a means for delivering intensive interventions in a structured environment for youth who have engaged in certain serious rule violations. This rule sets forth eligibility criteria, program completion requirements, and services to be provided to youth in the program.

(b) Applicability. This rule applies only to high restriction facilities operated by the Texas Youth Commission.

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

(2) Behavior Intervention Plan--a written plan developed as a result of a functional behavioral assessment to address specific behavioral concerns that are impeding a youth's learning or the learning of others. The plan is part of a youth's individualized education program and includes positive behavioral interventions and supports and other strategies to address the behavior.

(3) Functional Behavioral Assessment--a process for observing and collecting data on specific behaviors that are impeding a youth's progress and determining the function the behavior plays for a youth (e.g., seeking attention, peer acceptance, avoidance, etc.).

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

(5) Manifestation Determination Review--a review conducted by a youth's ARD committee when a decision has been made to change a special education-eligible youth's school placement due to a violation of the code of conduct. The committee determines whether a youth's conduct is a manifestation of the youth's disability and whether the youth's IEP was fully implemented.

(6) Multi-Disciplinary Team--a team which assesses youth progress through the steps of the Redirect program. At a minimum, the team must include representatives from the following departments: psychology, case management, education, and dorm supervision.

(d) Program Eligibility. A youth who engages in one or more of the following rule violations as defined in §95.3 of this title meets criteria for placement in the Redirect program:

(1) assault or fighting resulting in bodily injury;

(2) assault--unauthorized physical contact with staff (no injury);

(3) escape or attempted escape;

(4) vandalism (major rule violation only);

(5) sexual misconduct (excluding kissing);

(6) possessing or threatening others with a weapon or item which could be used as a weapon;

(7) chunking bodily fluids; or

(8) tampering with safety equipment.

(e) Request to Pursue Placement in Redirect Program. The facility administrator or designee may approve a request to pursue placement of a youth in the Redirect program only when it is determined that:

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

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

(3) the mental status of the youth has been assessed by a psychologist and there are no therapeutic contraindications for admission to the Redirect program.

(f) Additional Considerations for Youth Receiving Special Education Services.

(1) If the youth is receiving special education services, a manifestation determination review must be held to determine if the youth's conduct was a direct result of the failure to implement the youth's IEP, and if the conduct was caused by or had a direct and substantial relationship to the youth's disability. Except as noted in paragraph (2) of this subsection, the results of the manifestation determination review will have the following impact on admission to the Redirect program:

(A) if the determination is that there was a failure to implement the youth's IEP, the youth may not be placed in the Redirect program; and

(B) if the determination is that the conduct was caused by or had a direct and substantial relationship to the youth's disability, the youth may not be placed in the Redirect program unless the youth's parent/guardian consents to such placement as part of the youth's behavior intervention plan.

(2) Regardless of the results of a manifestation determination review, a youth may be admitted to the Redirect program if the rule violation includes possession of a weapon or the infliction of serious bodily injury upon another person.

(A) For purposes of paragraph (2) of this subsection only, weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, not including a pocket knife with a blade of less than 2 1/2 inches in length.

(B) For purposes of paragraph (2) of this subsection only, serious bodily injury means bodily injury which involves:

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) protracted and obvious disfigurement; or

(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(g) Admission Process. A Level II due process hearing must be held in accordance with §95.55 of this title. Unless there are considerations concerning special education services which would make the youth ineligible for placement in the Redirect program, as described in subsection (f) of this section, the youth may be admitted to the Redirect program if there is a finding of true with no extenuating circumstances that the youth committed a rule violation listed in subsection (d) of this section.

(h) Program Requirements.

(1) The Redirect program is administered in a special unit designated for such purpose. If the Redirect program is administered in a designated location within the security unit, the doors will remain unlocked except during sleeping hours or emergencies.

(2) A youth's placement in the Redirect program shall not exceed 42 calendar days.

(3) At least 5 1/2 hours of education services will be provided on scheduled academic days.

(4) If a youth is currently receiving special education services, staff must ensure that the youth continues to receive educational services that will enable the youth to meet the goals of the youth's IEP.

(5) An individual plan must be developed for each youth. The plan must be written in a language clearly understood by the youth. The plan must:

(A) address the specific target behavior or cluster of behaviors that led to admission to the Redirect program, taking into consideration the psychologist's recommendations to address the motivation for the behavior;

(B) involve strategies for intervention and prevention of the target behavior through skills development;

(D) provide clearly written objectives for release from the Redirect program.

(6) Staff must explain the individual plan to the youth. Youth will be provided an opportunity to sign the plan in acknowledgment.

(7) The individual plan and youth's progress with regard to target behaviors and skills development is reviewed and evaluated at least once every seven days by the multi-disciplinary team.

(8) Youth shall be gradually reintegrated into campus programming as soon as he/she demonstrates comprehension of the goals established in the treatment plan.

(9) Youth who are placed in the Redirect program are afforded living conditions and privileges approximating those available to the general campus population.

(10) Youth will receive a minimum of 30 minutes of counseling per day with the assigned case manager or designee.

(11) Youth will receive weekly mental health status exams by a psychologist.

(12) Youth will be provided with at least one hour of large muscle exercise seven days per week.

(i) Temporary Removal from the Redirect Program. Youth may be referred to the security program while currently assigned to the Redirect program if the youth meets criteria as set forth in §97.40 of this title. Any time spent in the security program is counted toward the 42-day maximum in the Redirect program.

(j) Criteria for Release from Redirect Program. A youth shall be released from the Redirect program and returned to his/her assigned dorm upon the earliest of the following events:

(1) a determination by the multi-disciplinary team that the youth has met goals set forth in his/her individual plan; or

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

(3) a decision by the superintendent or designee to return the youth to his/her assigned dorm or transfer to an alternative placement based on:

(A) population concerns in the Redirect program; or

(B) a recommendation by a mental health professional due to the youth's mental health condition; or

(4) a decision by the receiving superintendent or designee not to continue the Redirect program after an administrative transfer of the youth to another high restriction facility while assigned to the Redirect program; or

(5) the youth has completed 42 calendar days in the program.

(k) Right to Appeal. The youth shall be notified in writing of his/her right to appeal placement in the Redirect program in accordance with §93.53 of this title. The pendency of an appeal shall not preclude implementation of the decision.

(l) Family Notification. In accordance with §87.5 of this title, a youth's parents or guardian shall be notified within 24 hours after the due process hearing of the youth's admission to the Redirect program.

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 August 3, 2009.

TRD-200903275

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

SUBCHAPTER B. DUE PROCESS HEARINGS PROCEDURES

37 TAC §§95.50, 95.51, 95.55, 95.57, 95.59, 95.61, 95.71

The new rules are adopted under Human Resources Code §61.075, which provides TYC with the authority to order a committed child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The new rules are also adopted under §61.076, which provides TYC with the responsibility to provide any medical or psychiatric treatment that is necessary.

§95.50.Definitions--Due Process Hearings.

The following words and terms, as used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) Administrative Law Judge--an attorney employed by the Texas Youth Commission (TYC) who is responsible for determining if there is a preponderance of evidence presented at a Level I hearing to prove the youth committed an alleged rule violation and if the requested dispositions will be imposed.

(2) Advocate--a TYC employee, contract employee, or enrolled volunteer assigned to represent the youth at a Level II, III, or IV hearing who is trained by TYC to serve as an advocate.

(3) Community Detention--temporary placement of a youth in a community detention facility pending a Level I or II due process hearing.

(4) Community Detention Facilities--local detention facilities designed for either juveniles or adults, including jails.

(5) Detention Hearing--the court hearing required by the Texas Family Code to determine whether conditions exist to justify the detention of a juvenile.

(6) Extenuating Circumstances--facts that do not rise to the level of a legal defense but that do provide a reasonable explanation for the youth's behavior. Examples of such facts include, but are not limited to, acts in which:

(A) the only property involved in the offense was of minimal value and the youth returned it undamaged to its owner;

(B) the only bodily injury intended or inflicted by the youth consisted of brief or minor discomfort;

(C) the youth's conduct was an impulsive response to perceived provocation and posed no threat to persons or property; or

(D) the youth was persuaded to participate in the offense by a parent or other authority figure.

(7) Hearing Manager--an impartial person who will determine if there is a preponderance of evidence presented at a Level II hearing to prove the youth committed an alleged rule violation and if the requested dispositions will be imposed.

(8) High Restriction Facility--has the meaning assigned under §85.27 of this title.

(9) Institution Detention--temporary placement of youth in a high-restriction facility security unit as described in §95.59 and §95.61 of this title.

(10) Institutional Status--the status assigned to all youth who have not yet been released on parole or who have had their parole status revoked through a Level I due process hearing. Youth may be on institutional status while assigned to high or medium restriction placements.

(11) Level I Hearing--an administrative due process hearing used within TYC to determine if a youth's parole will be revoked.

(12) Level II Hearing--an administrative due process hearing used within TYC to determine if major disciplinary consequences will be imposed, contraband money will be deposited in the student benefit fund, whether a youth will be admitted to or extended in a psychiatric stabilization unit, and whether to move a youth to a higher restriction level for non-disciplinary reasons.

(13) Level III Hearing--an administrative due process hearing used within TYC to determine whether a youth will be admitted to or extended in the security unit, and whether minor disciplinary consequences will be issued to a youth in a medium restriction program or on parole.

(14) Level IV Hearing (Detention Review Hearing)--an administrative due process hearing used within TYC, held in lieu of a detention hearing for the same purpose.

(15) Non-Disciplinary Reasons--reasons not related to a violation of rules that transfer to a higher restriction assignment is necessary, including but not limited to:

(A) the youth has treatment, educational, medical, or other needs that cannot be met at the current placement; or

(B) there is no longer a home placement available for the youth.

(16) Parole Status--the status assigned to all youth who have been released on parole. Youth may be on parole status while assigned to a medium restriction placement or an approved home or home substitute.

(17) Preponderance of the evidence--a standard of proof meaning the greater weight and degree of credible evidence admitted at the hearing, e.g., whether the credible evidence makes it more likely than not that a particular proposition is true.

(18) Staff representative--the person assigned to assemble and present the allegation(s) and evidence at a hearing.

(19) Referring Staff--the TYC employee or contract employee who requests a youth's detention.

§95.51.Level I Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a due process procedure to be followed when seeking to revoke the parole status of a youth as a disciplinary consequence for behavior that presents an unacceptable risk to the safety of persons and property. Parole revocation is considered a major consequence.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) A Level I hearing is required in order to revoke a youth's parole status. Parole may be revoked if it is found that a youth has committed a law violation or a parole rule violation as established in §95.4 of this title and:

(A) revocation is determined to be in the best interest of the youth or community; and/or

(B) the youth is found to be in need of further rehabilitation at a Texas Youth Commission (TYC) or contract placement.

(2) The following information will be considered to determine if parole revocation is appropriate:

(A) the severity of the offense(s) found true at the hearing;

(B) any behavioral or adjustment issues while on parole and the steps taken by the staff representative to address those issues;

(D) reasons the youth is in need of services offered at a TYC or contract placement;

(E) whether appropriate community-based alternatives have been exhausted;

(F) any impact statement(s) written by the victim(s);

(G) any participation in constructive activity; and

(H) any extenuating circumstances.

(3) A Level I hearing on any allegation(s) shall be scheduled as soon as possible but no later than seven days from the date of the alleged offense, excluding weekends and holidays, except when:

(A) staff documents that it was impossible, impractical, or inappropriate to have scheduled the hearing sooner; or

(B) local authorities make a written request that TYC defer an allegation to their jurisdiction for prosecution; or

(C) TYC staff elects to defer a Level I hearing on all allegations of misconduct due to criminal allegation(s) pending or filed as adult charges, except that if the pending charge is a first degree felony offense, there must be a written request as described in subparagraph (B) of this paragraph in order to defer the allegation.

(4) TYC may re-issue a directive and request a Level I hearing concerning new or previously deferred allegation(s) if later circumstances make such action appropriate.

(5) The hearing shall be conducted by an administrative law judge appointed by the TYC hearings section chief. The administrative law judge shall be impartial.

(6) The hearing shall be conducted in two parts: fact-finding and disposition.

(A) The purpose of the factfinding shall be to establish whether there is a preponderance of evidence to prove the youth engaged in the alleged misconduct.

(B) The purpose of the disposition shall be to determine whether revocation of parole is appropriate under the circumstances.

(7) A youth whose parole is revoked will be assigned a minimum length of stay in accordance with §85.25 of this title.

(8) The person requesting a hearing shall appoint a staff representative to appear at the hearing and present the reasons for the proposed action. The staff representative shall also be responsible for making relevant information available to all parties to the hearing.

(9) The youth shall be assisted by legal counsel at the hearing. The agency will arrange counsel for indigent youth.

(10) If the youth's parole is not revoked, lesser disciplinary consequences may be imposed for any rule violation(s) proved at the hearing.

(11) If the youth is on parole from another state and is being supervised by TYC under agreement with the other state, a parole revocation hearing may be held by TYC and the youth may be returned to the sending state. Such a hearing is coordinated by the TYC interstate compact administrator and general counsel.

(12) If a TYC parolee commits an offense in another state, the return of such youth is coordinated by the TYC interstate compact administrator and the general counsel. A parole revocation hearing is coordinated by and held at the request of the assigned staff representative.

(13) The hearing shall be held in the community where the alleged rule violation occurred unless the administrative law judge directs that it be held in another locale.

(14) All necessary parties shall be present at the hearing site unless it is conducted pursuant to §95.53 of this title.

(15) The staff representative shall provide the youth with written notice of the date and time of the hearing not less than three (3) working days before the scheduled date. This notice shall include:

(A) the reason(s) for the hearing;

(B) the proposed action to be taken; and

(16) If the youth is under 18 years of age, the staff representative shall make reasonable efforts to inform the youth's parent(s) of the date, time, place of, and reasons for the hearing not less than three (3) working days prior to the scheduled hearing date. If the youth is 18 years of age or older, such notice shall be provided only with the youth's authorization to release information.

(17) The staff representative shall provide counsel for the youth with written notice of the date, time, place of, and reasons for the hearing not less than three (3) working days prior to the scheduled hearing date. The notice to counsel shall also include:

(A) the name, address, and telephone number of the staff representative and the administrative law judge;

(B) a list of all witnesses the staff representative intends to call;

(D) copies of any statements made by the youth;

(E) copies of any statements, affidavits, reports, or other documentation relied upon as grounds for the proposed action; and

(F) copies of any reports or summaries which will be relied upon at disposition.

(18) The staff representative shall provide counsel for the youth with reasonable access to all information held by TYC concerning the youth. Counsel for the youth will respect the confidential nature of such information and will comply with reasonable requests to withhold sensitive information from the youth or the youth's family.

(19) As soon as possible following receipt of the notice of hearing, and no later than the commencement of the hearing, counsel shall inform the staff representative of any witnesses he/she wishes to call on behalf of the youth. The staff representative will, if necessary and possible, assist counsel in contacting those witnesses and securing their attendance at the hearing.

(20) The staff representative will ensure that all witnesses are given written notice of the time, date, and location of the hearing at least three days in advance of the hearing.

(21) At the staff representative's request, the TYC chief administrative law judge may sign and issue a subpoena to compel the attendance of a necessary witness at the hearing or the production of books, records, papers, or other objects. A person who testifies falsely, fails to appear when subpoenaed, or fails or refuses to produce material under the subpoena is subject to the same orders and penalties to which a person taking those actions before a court is subject.

(22) The administrative law judge may, upon his/her own motion or the good cause motion of any party, recess or continue the hearing for such periods of time as may be necessary to ensure an informed fact finding.

(23) Prior to the hearing, the administrative law judge may review copies of any documentation previously provided to counsel except for those documents which relate solely to dispositional criteria. The administrative law judge shall review such information only if the hearing proceeds to disposition.

(24) A victim who appears as a witness should be provided a waiting area which eliminates or minimizes contact between the victim and the youth, the youth's family, or witnesses on behalf of the youth.

(25) To protect the confidential nature of the hearing, persons other than the youth, counsel for the youth, the staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the administrative law judge, however:

(A) observers may be permitted with the consent of the youth;

(B) any person except the youth's counsel or the staff representative may be excluded from the hearing room if his/her presence causes undue disruption or delay of the hearing. The reason(s) for the youth's exclusion shall be stated on the record.

(26) The hearing shall be recorded and the administrative law judge shall retain copies of all documents admitted into evidence. Physical evidence may be retained at the discretion of the administrative law judge; if not retained, an adequate description of the item(s) shall be entered in the record by oral stipulation.

(27) Factual issues not in dispute may be stipulated to by the staff representative and counsel for the youth. Such stipulations shall be made on the record of the hearing.

(28) A youth accused of misconduct shall be given the opportunity to respond "true" or "not true" to each allegation of such conduct prior to any evidence being heard on such allegations.

(A) The youth shall have a right to respond "not true" to any such allegation and require that proof of the allegation be presented at the hearing.

(B) A response of "true" to any such allegation shall be sufficient to establish each and every element necessary to proof of that allegation without the presentation of any other evidence.

(29) The administrative law judge may administer an oath to all witnesses to testify truthfully.

(30) With the exception of the youth and the staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing his/her testimony with anyone until all the witnesses have been dismissed.

(31) The administrative law judge may question each witness at his/her discretion. Counsel for the youth and the staff representative shall be given an opportunity to question each witness.

(32) The administrative law judge may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, counsel for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.

(33) The youth shall not be called as a witness unless, after consulting with counsel, the youth waives his/her right to remain silent on the record.

(A) The youth's failure to testify shall not create a presumption against him/her.

(B) A youth who waives his/her right to remain silent may only be questioned concerning those issues addressed by the youth's testimony.

(34) All factual issues shall be determined by a preponderance of the evidence.

(35) The administrative law judge shall determine the admissibility of evidence. Irrelevant, immaterial, or unduly repetitious evidence will be excluded.

(36) The rules of evidence will generally be applicable to the fact-finding portion of the hearing. Unless specifically precluded by statute, evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Criminal exclusionary rules are not applicable in TYC hearings.

(37) A judgment from a court indicating a youth has pled guilty or true to an offense and has not received deferred adjudication is sufficient to prove the youth committed the offense.

(38) Copies of due process hearing documents need not be certified if such document(s) are part of the youth's record(s) or have been received through Interstate Compact. Such documents are considered reliable and admissible for all purposes.

(39) Accomplice testimony is sufficient to prove an allegation if it is corroborated by other evidence tending to connect the youth with the alleged violation. The corroboration is not sufficient if it merely shows the commission of the violation alleged. If two accomplices testify, the testimony of each can serve to corroborate the other.

(40) Legally recognized privileges of relationships will be given effect.

(41) Evidence otherwise admissible may be received in written form if so doing will expedite the hearing and will not significantly prejudice the rights or interests of the youth. This includes but is not limited to use of affidavits admitted to show the following:

(A) ownership and lack of consent;

(B) identity of signature on instrument and lack of consent of complaining witness in a forgery case;

(D) chain of custody;

(E) identity of substance found in a urine sample;

(F) identity of a controlled substance found in possession of a youth.

(42) A youth's written statement concerning his/her possible involvement in illegal activities is admissible if it is signed by the youth and accompanied by evidence indicating that the youth made the statement voluntarily after being advised of:

(A) the right to remain silent;

(B) the possible consequences of giving the statement;

(D) the right to have an attorney provided if the youth is indigent.

(43) A youth's non-recorded oral statement is admissible if it:

(A) relates facts which are found to be true and which tend to establish the youth's guilt; or

(B) was res gestae of the conduct that is the subject of the hearing or of the arrest; or

(C) even if it does not meet subparagraph (A) or (B) of this paragraph, the statement does not stem from law enforcement or agency staff questioning of youth; or

(D) even if the statement does stem from law enforcement or agency staff questioning, the statement is voluntary and bears on the youth's credibility as a witness.

(44) A youth's recorded oral statement (tape recorded, videotaped, or otherwise electronically recorded) concerning his/her possible involvement in illegal activities is admissible if it is accompanied by evidence on the recording that it was given after the youth was advised of the rights in paragraph (42) of this subsection. All voices on the recording must be identified and the recording must be accurate and unaltered. A transcript of the recordings is not sufficient.

(45) A youth's admissible out of hearing/court statement admitting he/she committed an offense is sufficient to prove the offense only if it is corroborated by other evidence that the offense was committed.

(46) The administrative law judge shall rule immediately on any motions or objections made in the course of the hearing. All such motions, objections, and rulings shall be included in the administrative law judge's written report.

(47) Following the presentation of all evidence pertaining to the factual issues raised at the hearing, the administrative law judge shall announce his/her findings as to those issues.

(A) The administrative law judge may find that the evidence suffices to prove conduct other than that originally alleged and enter the appropriate finding in the record if the original allegation gave sufficient notice of the conduct proved.

(B) Irrespective of the evidence, the administrative law judge may not find a criminal offense more serious than that originally alleged unless the original allegation has been amended on the record and after notice to counsel for the youth.

(C) If the administrative law judge finds any allegation to be true, the hearing shall proceed to disposition; if not, the hearing shall be adjourned with no change in the youth's status.

(48) The administrative law judge may receive additional evidence for purposes of disposition. The evidence received at disposition may be in the form of testimony from witnesses submitted during fact-finding or at disposition, as well as written reports offered by youth, staff, professionals, counselors, or consultants. Relevant documents contained in the youth's record may be admitted and considered. All written documents offered shall be provided to the parties three days prior to the hearing unless otherwise waived. Hearsay evidence is admissible in disposition.

(49) Parole will be revoked if the administrative law judge determines that revocation is in the youth's and/or the community's best interest and/or the youth is in need of further rehabilitation at a TYC facility.

(50) If parole is revoked, the youth will be assigned a minimum length of stay in accordance with §85.25 of this title, based on the most serious offense found true at the hearing. Such minimum length of stay may be reduced in accordance with §85.25 of this title.

(51) If, despite a finding of extenuating circumstances relevant to the proven offense, the administrative law judge finds revocation is appropriate under the circumstances, the youth's parole will be revoked but the assigned minimum length of stay will be reduced.

(52) Following announcement of the decision as to disposition, the administrative law judge shall inform the youth of the right to appeal any or all findings and decisions made at the hearing.

(53) Immediately following the close of the hearing, the administrative law judge shall give the youth a copy of the hearing report form.

(54) A notice of appeal shall not suspend implementation of the administrative law judge's decision(s), which shall be effective when announced at the hearing.

(55) As soon as possible following the conclusion of the hearing, the administrative law judge shall prepare a written report which shall include:

(A) a summary of the evidence presented;

(B) findings of fact, including the reliability of the evidence and the credibility of the witnesses, and the reasons for those findings;

(D) an explanation of the dispositional decision; and

(E) rulings made on motions and objections and the reasons therefore.

(56) Copies of the administrative law judge's report shall be provided to counsel for the youth and the staff representative.

(57) An edited copy of the administrative law judge's report is given to the youth.

§95.55.Level II Hearing Procedure.

(a) Purpose. The purpose of this rule is to establish a procedure to be followed when the second highest level of due process is afforded a youth. Rule violations proven through a Level II Hearing will be part of the youth's disciplinary record.

(b) Definitions. Definitions pertaining to this rule are under §95.50 of this title.

(1) imposing a major disciplinary consequence in accordance with §95.3 of this title;

(2) placing a youth in the Redirect program in accordance with §95.17 of this title;

(3) placement of a youth on parole assigned to a home or home substitute in a medium restriction facility for non-disciplinary reasons;

(4) placement of a youth whose initial assignment was to a medium restriction facility in a high restriction facility for non-disciplinary reasons;

(5) with a few exceptions in procedure as identified in §95.71 of this title:

(A) admission to the Corsicana Stabilization Unit; and

(B) extension of time to treat a psychiatric disorder in connection with a Corsicana Stabilization Unit placement (as appropriate); or

(6) deposit of contraband money into the student benefit fund found in possession of a youth while in a residential program.

(d) Criteria.

(1) To impose a major consequence, place a youth in the Redirect program, or place contraband money in the student benefit fund, the hearing manager must find:

(A) the youth committed an eligible rule violation; and

(B) there are no extenuating circumstances.

(2) To transfer a youth to a higher restriction level for non-disciplinary reasons; the hearing manager must find there are no less restrictive placements appropriate and available for the youth.

(3) For criteria for admission to or extension in the Corsicana Stabilization Unit, see §87.67 of this title.

(e) Procedure.

(1) When a youth in a residential facility is alleged to have committed a major rule violation or a minor rule violation requiring a security referral, an investigation into that violation must be started within 24 hours of the alleged offense and completed within 24 hours of the time started. A decision on whether or not to pursue a Level II Hearing must be made within 24 hours of the completion of the investigation. Any delay in these timelines must be justified with documentation of circumstances that made it impossible, impractical, or inappropriate to meet them. The investigation must be conducted by a staff member other than the one reporting the alleged violation.

(2) The appropriate staff person shall request permission to schedule a hearing from the facility administrator, parole supervisor, quality assurance administrator, or their designees.

(3) For hearings regarding rule violations or contraband money, the hearing shall be conducted as soon as practical but not later than seven days, excluding weekends and holidays, after the alleged violation was committed or the money was found. A delay of more than seven days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.

(4) For hearings regarding a non-disciplinary transfer, the youth may waive the hearing in writing and agree to the transfer. If the youth does not waive the hearing, the hearing must be held prior to the transfer. If good cause compels a pre-hearing transfer, the hearing shall be held within three calendar days after the transfer.

(5) If the youth is being held in a security unit due to potential interference with a pending a Level II hearing, the hearing shall be conducted within five calendar days from the date of admission to detention. A delay of more than five days in holding the hearing must be justified by documentation of circumstances which made it impossible, impractical, or inappropriate to schedule the hearing earlier.

(6) Failure to document circumstances making it impossible, impractical, or inappropriate to timely investigate and hold the hearing may result in a dismissal or reversal of the decision of the hearing manager.

(7) The appropriate facility administrator, parole supervisor, quality assurance administrator, or their designees will appoint a hearing manager and staff representative.

(8) The hearing manager shall be a Texas Youth Commission (TYC) staff member who is trained to function as a hearing manager.

(A) The hearing manager shall not be a person who:

(i) witnessed any part of the alleged violation of which the youth is accused; or

(ii) made a decision to place the youth in the security unit or in a detention program pending the hearing.

(B) If the youth is currently assigned to an institution, the hearing manager shall be someone not directly responsible for supervising the youth.

(C) If the youth is currently assigned to a halfway house, the hearing manager shall not be a member of the halfway house staff.

(D) If the youth is currently assigned to a contract program, the hearing manager shall not be the TYC quality assurance specialist assigned to that youth.

(E) If the youth is currently assigned to his/her home, the hearing manager shall not be the parole officer assigned to the youth's case or the quality assurance specialist who works directly with the youth's supervising officer.

(9) The staff representative shall be responsible for assembling all evidence and giving all notices required for the hearing as well as presenting all evidence at the hearing.

(10) The youth shall be given written notice of his/her rights not less than 24 hours prior to the hearing. The youth's rights are:

(A) the right to remain silent;

(B) the right to be assisted by an advocate at the hearing;

(D) the right to contest adverse evidence admitted at the hearing;

(E) the right to call readily available witnesses and present readily available evidence on his/her own behalf at the hearing; and

(F) the right to appeal the results of the hearing. The youth's right to appeal cannot be waived.

(11) The youth shall be assisted by a TYC employee, contract employee, or volunteer who has been trained to serve as an advocate. The youth shall be given the opportunity to choose an advocate from those trained. The youth's choice shall be honored unless there is a showing of unavailability for any reason. If the youth makes no choice, or the first choice is unavailable for any reason, the hearing manager shall appoint the advocate. In cases where the youth is not proficient in the English language, the appointed advocate shall be proficient in English as well as the primary language of the youth or an interpreter shall be used.

(12) The youth and the youth's advocate shall be given written notice of the reasons for calling the hearing, the proposed action to be taken, and the evidence to be relied upon not less than 24 hours prior to the hearing. After receipt of the written notice and consultation with the advocate, the youth may waive the 24-hour notice period by agreeing, in writing, to an earlier hearing time.

(13) All youth in TYC facilities and secure contract placements shall be given the hearing packet (all written materials relied upon and a list of witnesses) at least 24 hours in advance of the hearing. The paperwork may be taken away from the youth if the youth is misusing the papers in any way.

(14) If the youth is less than 18 years of age, reasonable efforts shall be made to inform the youth's parent(s) of the time and place of the hearing not less than 24 hours prior to the hearing. If the youth is 18 years of age or older, such notice shall be provided only with the youth's authorization to release information.

(15) Hearings to impose major consequences, to place a youth in the Redirect program, or to place contraband money in the student benefit fund shall consist of two parts: factfinding and disposition, and shall be held where the youth resides unless the hearing manager determines that some other site is more appropriate. During the fact-finding portion of the hearing, only evidence concerning the alleged misconduct may be considered; the youth's prior behavior shall not be considered unless disposition is reached.

(16) Hearings regarding non-disciplinary transfers shall consist of fact finding to determine if the transfer is necessary because there are no less restrictive placement options appropriate and available for the youth.

(17) The hearing shall be recorded and the recording shall be the official record of the hearing. The recording and the hearing packet shall be preserved for six months following the hearing.

(18) The youth shall be present during the hearing unless the youth waives his/her presence or his/her behavior prevents the hearing from proceeding in an orderly and expeditious fashion.

(A) A voluntary waiver of the youth's presence shall be in writing and signed by the youth and his/her advocate. If the youth does not sign the waiver for any reason, his/her presence is not waived.

(B) If the youth waives his/her presence, the hearing may be conducted by teleconference.

(C) If a youth is excluded for behavioral reasons, or to secure the testimony of a witness, those reasons shall be documented in the hearing record. The advocate shall be present during the testimony and shall have the opportunity to question the witness.

(D) A true plea cannot be entered on behalf of a youth who has waived his/her presence at the hearing.

(19) A victim who appears as a witness should be provided a waiting area where he/she is not likely to come in contact with the youth except during the hearing.

(20) Witnesses will take an oath prior to testifying. Witnesses may testify by telephone or videoconference if in-person testimony is impractical or unfeasible. If testimony is provided by phone, persons required to be present at the hearing must be able to simultaneously hear the testimony.

(21) The hearing manager, staff representative, and advocate may question each witness in turn. The staff representative and advocate may offer summation statements.

(22) To protect the confidential nature of the hearing, persons other than the youth, the youth's advocate, staff representative, and the youth's parent(s) may be excluded from the hearing room at the discretion of the hearing manager; however, any person except the staff representative or the youth's advocate may be excluded from the hearing room if his/her presence causes undue disruption or delay of the hearing. The reason(s) for the exclusions are stated on the record.

(23) With the exception of the youth or staff representative, any person designated as a witness may be excluded from the hearing room during the testimony of other witnesses and may be instructed to refrain from discussing his/her testimony with anyone until all the witnesses have been dismissed.

(24) The hearing manager may permit a witness to testify outside the presence of the youth if such appears reasonable and necessary to secure the testimony of the witness. If the youth is excluded from the hearing room during testimony, the advocate for the youth shall be present during the testimony and shall have the opportunity to review the testimony with the youth before questioning the witness.

(25) The youth shall not be called as a witness unless, after consulting with the advocate, he/she waives his/her right to remain silent on the record. Neither the hearing manager nor the staff representative may question the youth unless he/she waives the right to remain silent.

(A) The youth's failure to testify shall not create a presumption against him/her.

(B) A youth who waives the right to remain silent may only be questioned concerning those issues addressed by his/her testimony.

(26) All credible evidence may be considered, irrespective of its form.

(27) The standard of proof for all disputed issues is a preponderance of the evidence.

(28) The hearing manager may recess or continue the hearing for such period(s) of time as may be necessary to ensure an informed and accurate fact-finding or to secure evidence the hearing manger determines may be relevant.

(29) The hearing manager will announce his/her findings of fact.

(30) If there is a finding of true, the hearing manager shall proceed to disposition and provide the youth an opportunity to present extenuating circumstances, with the exception that extenuating circumstances are not applicable to admissions or extensions of stay in the Corsicana Stabilization Unit or to transfers for non-disciplinary reasons. If no extenuating circumstances are found, the hearing manager shall order the disposition recommended by the staff representative.

(A) A hearing manager's decision that a youth will be transferred is final subject to approval by the appropriate administrator.

(B) A hearing manager's decision that a youth will be issued a consequence to be served at the youth's current placement is final subject to an appeal by the youth.

(C) If extenuating circumstances are found incident to the rule violation(s) proved at a Level II hearing, the youth shall not be assigned the requested dispositions or any other major consequences. However, the true finding will remain in the youth's record and can be considered by the youth's treatment team or parole officer in determining appropriate actions to address the youth's behavior. If extenuating circumstances are found incident to a youth's possession of prohibited money, the hearing manager determines the appropriate way to dispose of the money.

(31) The hearing manager shall prepare a report of his/her findings, which includes grounds for the hearing, evidence relied upon, and the decision.

(32) The youth is informed of his/her right to appeal to the agency's chief administrative officer at the close of the hearing. The pendency of an appeal shall not preclude implementation of the hearing manager's dispositional decision.

(33) A copy of the hearing report is given to the youth immediately following the close of the hearing.

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 August 3, 2009.

TRD-200903276

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

CHAPTER 97. SECURITY AND CONTROL

SUBCHAPTER A. SECURITY AND CONTROL

The Texas Youth Commission (TYC) adopts the repeal of §97.23, concerning Use of Force, and new §97.23, concerning Use of Force.

The repeal is adopted without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2936).

The new rule is adopted with changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2936). Changes to the proposed text include new subsection (m)(2), which prohibits the use of restraints on a youth while she is in labor, during delivery, or recovering from delivery unless approved by the executive commissioner or designee. The new subsection is added to comply with HB 3653, enacted by the 81st Legislature, which takes effect on September 1, 2009. Additional changes to the proposed text are outlined below, as described in the responses to public comments received.

The justification for the new rule is increased safety for youth and staff through clearer direction on when force should be used, what type of force is authorized, as well as increased controls on uses of force.

The new rule will make several key revisions to existing use of force policy. Concerning the use of Oleoresin Capsicum (OC) or pepper spray, the new rule requires prior authorization on a case by case basis from the facility administrator or designee unless immediate use is believed necessary to prevent serious injury or loss of life. The rule also clarifies the previous rule by establishing that only one supervisory Juvenile Correctional Officer, the shift supervisor, may carry OC spray. OC spray will no longer be authorized for use in preventing "fleeing apprehension", which is defined as youth being in an unapproved area and resisting apprehension by staff.

The new rule also makes significant changes to other areas regarding the use of force. A medical assessment will be provided following every use of manual restraint, not just those resulting in suspected injuries. Force will no longer be authorized to remove youth from a disruptive situation, unless the disruption causes danger to the youth or others. Use of riot shields during planned team restraints will be restricted to instances where the youth possesses a weapon or otherwise presents a significant risk of harm to staff. Additionally, requirements for use of restraints for medical or mental health purposes have been removed from this rule and published in a standalone rule, §91.98, which is also adopted in this issue of the Texas Register.

Comments regarding the rule were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with TYC's responses.

Comment: Subsection (b)(2) should include: "Force shall only be used when other less restrictive interventions such as verbal de-escalation, use of problem solving groups, and behavior techniques have failed or are not practicable under the circumstances existing at the time."

Response: The proposed rule text states that "non-physical interventions are preferred, and must be used to the extent practical to manage youth behavior", "TYC authorizes its staff to use reasonable force as a last resort to maintain safety and order", and "alternatives to force must be used whenever practical to assist a youth in maintaining or regaining self-control". No changes were made to the proposed text as a result of the comment.

Comment: A subsection should be added stating, "Staff shall use only the least amount and type of reasonable force necessary to maintain order and safety.

Response: The proposed rule allows for the use of reasonable force. Reasonable force is defined in the rule as "the least amount of force which a trained staff, in like circumstances, would reasonably believe to be necessary to maintain order and safety as authorized under this rule." No changes were made to the proposed text as a result of the comment.

Comment: The rule should identify approved restraint equipment rather than allowing the executive commissioner or his/her designee to define acceptable restraint equipment.

Response: Codifying an exhaustive list of approved restraint equipment in the rule would not allow agency management the flexibility to appropriately respond to changes in vendors, product lines, agency needs, or other factors. A listing of approved restraint devices will be published in the management procedures developed to implement this rule. These procedures will be publicly available through TYC's website. No changes were made to the proposed text as a result of this comment.

Comment: Definitions for the following terms should be added: Imminent Self-Harm (A reasonable belief that a youth is about to harm him or herself unless immediate action is taken); Passive Resistance (Passive refusal to comply with an order from staff, or behavior reflecting only emotional venting or verbal aggression with no physical movement toward a target. Examples include refusing to turn around to be handcuffed, verbal refusal to comply with an order, non-verbal, non-aggressive refusal to comply with an order that does not pose a risk of imminent harm to youth, self, or third parties); Serious Bodily Injury (incorporate the definition used in §95.17); and Substantial Property Damage.

Response: The rule includes a definition for imminent harm, which includes self harm. A separate definition is not necessary. The term "passive resistance" is not used in the rule, therefore no definition is needed. TYC agrees that definitions for serious bodily injury and substantial property damage are needed. Subsection (e) of the adopted text has been amended to include these definitions.

Comment: The subsection addressing non-physical interventions should include a reference to proposed §95.20, allowing for a "cooling off period" during which youth are allowed to regain control of their behavior.

Response: The proposed text of the rule contains a reference to 37 TAC §95.20 in subsection (d). TYC believes this is the appropriate location for a reference to this rule. While the cooling off period itself is a non-physical intervention, referral to a room for a cooling off period may require a physical intervention, such as a physical escort. Cooling off periods are intended as an alternative to referral to the security unit, not necessarily as an alternative to the use of physical interventions, although they may serve that purpose as well. No changes were made to the proposed text as a result of this comment.

Comment: Subsection (h)(11) should be deleted, and a subsection with the following provisions should be added in its place: (1) the physician's order for restraint must include a time limit, special considerations, type of restraint, who will implement the restraint, and monitoring instruction; (2) the physician ordering the restraint must consult with the youth's treating physician and document the contact; (3) special procedures must be included for cases when an emergency situation requires the frequency of assessment or other aspects of care and treatment to differ from the provisions of this subchapter; (4) the monitoring plan must be documented in the youth's medical record; and (5) dentists may not order restraint.

Response: TYC has published a separate rule, 37 TAC §91.98, that establishes policy and procedural requirements for the application of medical restraints. Much of what is recommended in the comment is already provided for in §91.98. No changes were made to the proposed text of §97.23 as a result of the comment. However, TYC agrees some elements of the suggested section should be added to the adopted text of §91.98. Subsection (f)(3)(B) of §91.98 will be amended to require the provider's order to include any special instructions to be carried out by staff implementing the restraint. New subsection (f)(4)(I) will be added to §91.98 to require consultation between the treating provider and the provider ordering restraint when these are not the same individual. Special procedures should not be added to address times when required monitoring frequencies cannot be met. The expectation is for the policy to be followed at all times.

Comment: All of subsection (j)(2) should be deleted from the rule. Staff should only use the methods of manual restraint listed in (j)(1). When staff are allowed to deviate from approved, agency-trained restraint techniques, there is a greater likelihood of injury to youth or staff.

Response: Agency-trained methods of restraint cannot address every potential scenario that may arise. While the expectation is that staff members will use agency-trained methods whenever possible, staff members should have the ability to protect themselves and others by using any non-prohibited technique. No changes were made to the proposed text as a result of this comment.

Comment: The list of prohibited techniques should include any technique that restricts youth's circulation.

Response: The proposed rule text prohibits the use of pressure point compliance techniques and requires that restraint equipment must not interfere with circulation. No changes were made to the proposed text as a result of this comment.

Comment: Subsection (k)(1)(E) should also include "causing pain to restrict a youth's movement."

Response: The proposed rule text prohibits the use of pain compliance or joint manipulation techniques as a means of restraint. No changes were made to the proposed text as a result of the comment.

Comment: Subsection (l)(1)(B) should read "prevent substantial property damage," rather than "prevent significant property damage." This is consistent with the language in the subsection (h)(4).

Response: TYC agrees with the recommendation. Subsection (l)(1)(B) has been amended to read "substantial" rather than "significant."

Comment: Subsection (m) should prohibit restraining youth in a prone position. The proposed language conflicts with the language in proposed (k)(1)(A), which prohibits placing the youth in a position that is capable of causing positional asphyxia.

Response: Agency-approved manual restraint techniques allow for staff to momentarily place a youth in a prone position in order to apply mechanical restraints. The prohibition on applying pressure to the youth's back or chest applies to such manual methods of restraint, including when a youth is temporarily restrained in a prone position. The rule includes protections against maintaining the youth in a prone position for extended periods of time. No changes were made to the proposed text as a result of this comment.

Comment: OC spray should not be used if a youth is simply passively resisting an order, unless the youth's failure to comply poses a risk of imminent serious bodily injury to youth, other youth, third parties, or self.

Response: The proposed rule text requires that non-physical interventions and other physical interventions have been attempted and failed or determined to be impractical before OC spray can be used. Nothing in the rule allows for the use of OC spray on a youth who is simply passively resisting an order in any scenario other than those listed in subsection (n)(2)(A). A youth's failure to comply under any of the scenarios presented in subsection (n)(2)(A), regardless of the level of resistance, poses a serious risk which may warrant the use of OC spray to protect youth, staff, and the public. No changes were made to the proposed text as a result of this comment.

Comment: OC spray should not be used on a youth in a mental health treatment program.

Response: TYC has established that OC spray may be used under circumstances set forth in subsection (n)(2)(A). Youth undergo medical examinations to determine whether there is a condition that would contraindicate the use of OC spray. No changes were made to the proposed text as a result of this comment.

Comment: OC spray should not be used on a youth who is in a locked, individual cell unless necessary to prevent loss of life or serious bodily injury.

Response: Under the proposed rule, the criteria for planned team restraints of youth in locked, individual cells are narrower than those for use of OC spray. Of the three situations which allow for such restraints of youth in locked cells, only prevention of self-harm or recovery of a weapon would also potentially allow for use of OC spray. These two scenarios carry the potential to cause loss of life or serious bodily injury. No changes were made to the proposed text as a result of the comment.

37 TAC §97.23

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

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 August 3, 2009.

TRD-200903272

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

37 TAC §97.23

The new section is adopted under the Human Resources Code, §61.045, which provides the commission with the responsibility for providing for the welfare, custody, and rehabilitation of the children in a school, facility, or program operated or funded by the commission.

§97.23.Use of Force.

(a) Purpose. This rule establishes the procedures for staff intervention when youth behavior threatens safety and order.

(b) General Provisions.

(1) Non-physical interventions are preferred, and must be used to the extent practical to manage youth behavior.

(2) Texas Youth Commission (TYC) authorizes its staff to use reasonable force as a last resort to maintain safety and order. Only staff who are trained in agency-approved techniques are authorized to use force.

(3) The use of force as punishment or for convenience of staff is strictly prohibited.

(4) Approved use of force techniques are those determined by TYC to minimize risk of harm to youth and staff.

(5) Staff shall release youth from manual or mechanical restraint as soon as the purpose for the restraint has been achieved.

(6) If a staff member observes a use of force in violation of policy, he/she shall take action, as practical, to protect the youth from harm.

(7) Staff shall report any violations of this policy as soon as possible, but no later than the end of the current shift.

(8) Violations of this policy may result in disciplinary action up to and including termination of employment.

(9) After any manual restraint or use of oleoresin capsicum (OC) spray, a youth shall be assessed by medical staff as soon as practical. Any injuries shall be documented in the medical record along with an explanation from the youth describing how the injuries occurred. Photographs shall be taken of all injuries.

(10) Only restraint equipment approved by the executive commissioner or his/her designee shall be used in TYC facilities. All restraint equipment shall be used in a manner consistent with its design and intended purpose.

(1) This rule applies to all facilities, offices, and programs operated by or under contract with TYC, unless specifically stated otherwise in the rule.

(2) This rule does not apply to peace officers employed by the TYC Office of Inspector General.

(d) References.

(1) For riot control procedures, see §97.27 of this title.

(2) For procedures and programs designed to allow youth time to regain self-control, see §§95.20, 97.39, and 97.40 of this title.

(3) For criteria and procedures on administering a psychotropic drug in a psychiatric emergency when a youth will not give consent for the administration, see §91.92 of this title.

(4) For procedures relating to youth searches, see §97.9 of this title.

(5) For procedures and restrictions on the use of therapeutic restraints for medical or mental health purposes, see §91.98 of this title.

(e) Definitions.

(1) Handle With Care--an agency-trained physical intervention system.

(2) Imminent Harm--a reasonable belief that harm to persons or property is about to occur, unless immediate action is taken.

(3) Mental Health Professional--an individual who is a Psychiatrist, doctoral level Psychologist, masters level Associate Psychologist, Licensed Professional Counselor, or a Licensed Social Worker with an Advanced Clinical Practitioner (LMSW-ACP) designation.

(4) Positional Asphyxia--the reduction in oxygen in the bloodstream and tissues due to an impairment of a person's respiratory system caused by body positioning or the application of external weight/pressure.

(5) Practical--a reasonable belief that something is capable of being done.

(6) Reasonable Belief--a belief that would be held by a similarly trained staff considering the totality of the circumstances.

(7) Reasonable Force--the least amount of force which a trained staff, in like circumstances, would reasonably believe to be necessary to maintain order and safety as authorized under this rule.

(8) Serious Bodily Injury--an injury that creates a substantial risk of death, serious permanent disfigurement, or extended loss or impairment of the function of any bodily member or organ.

(9) Substantial Property Damage--at least $500 in damage to state property or another's personal property.

(10) Totality of the Circumstances--facts and circumstances known by the actor at the time of the incident.

(11) Use of Force--physical measures used to direct, compel, or restrain bodily movement of a non-compliant youth.

(f) Non-Physical Interventions. Alternatives to force must be used whenever practical to assist a youth in maintaining or regaining self-control. Staff are prohibited from using profanity or slang based on race, gender, sexual orientation, or ethnicity to manage youth behavior. Staff will be trained in the use of the following non-physical intervention techniques:

(1) Staff presence--this includes mere presence of staff to include non-verbal gestures made with eyes, hands, head or body utilizing proximity, standing, eye contact and/or facial expressions; and/or involving additional staff to intervene.

(2) Verbal de-escalation--this includes verbal prompting, directive statements, and redirecting youth attention and/or behavior.

(3) Use of problem-solving groups.

(g) Physical Interventions. When reasonable force is necessary, staff are authorized to use the following methods:

(1) Physical Escort--touching of the arm, elbow, shoulder or back for the purpose of directing the youth from one location to another.

(2) Mechanical Restraint--use of a mechanical device applied to a youth as a means of restricting a youth's freedom of action.

(3) Manual Restraint--use of hands-on techniques as a means of restricting a youth's freedom of action.

(4) Planned Team Restraint--restraint of a youth who is in a locked or barricaded room by a pre-assembled team.

(5) OC Spray--oleoresin capsicum spray, also known as pepper spray. Oleoresin capsicum is a mixture of essential oil and resin found in nature and derived from any plant of the genus capsicum, such as jalapeño, cayenne, or habanero.

(h) Criteria for Use of Force. Except as otherwise indicated in this rule, reasonable force is authorized under the following circumstances:

(1) Protection of youth from imminent self-harm;

(2) Protection of self from imminent harm;

(3) Protection of other youth or third parties from imminent harm;

(4) Protection of property from imminent, substantial damage;

(5) Prevention of escape or fleeing apprehension;

(6) Movement of a youth referred to the security unit, other temporary isolation room, or alternative classroom;

(7) Movement of a resistant youth within the security unit when the youth's behavior is substantially disruptive and the youth refuses to stop the behavior;

(8) Movement of a resistant youth from a dangerous situation;

(9) To conduct a search of a resistant youth reasonably believed to be in possession of a weapon, an item that can be adapted for use as a weapon, a controlled substance, or other item(s) that breech the security of the facility;

(10) To conduct a search of a resistant youth entering the security unit; or

(11) Administration of medical treatment to a resistant youth when, under the circumstances, failure to administer the treatment could have serious health implications as determined by a physician or mid-level practitioner (such as a nurse practitioner or physician's assistant).

(i) Determining the Intervention or the Reasonable Force to be Used. In determining the type of intervention or the reasonable force to be used, staff must consider whether action needs to be taken immediately or can be delayed until additional staff can organize a team response.

(j) Approved Use of Force Techniques. Use of force techniques that may be used are limited to:

(1) agency-trained:

(A) physical escort;

(B) Handle With Care methods of manual restraint;

(D) OC spray, under certain limited circumstances; and

(2) other non-prohibited methods of manual restraint that under the totality of circumstances existing at the time:

(A) are more practical than the agency-trained Handle With Care methods of restraint, taking into account the youth's and staff's particular vulnerability to harm;

(B) involve a use of force that is measured and progressive to a degree no greater than that reasonably believed necessary to achieve the objective; and

(k) Prohibited Restraint Techniques.

(1) Prohibited restraint techniques include the following:

(A) restricting respiration in any way, such as applying a chokehold or pressure to a youth's back or chest or placing a youth in a position that is capable of causing positional asphyxia;

(B) using any method that is capable of causing loss of consciousness or harm to the neck;

(D) slapping, punching, kicking, or hitting;

(E) using pressure point, pain compliance and joint manipulation techniques, other than an approved Handle With Care method for release of a chokehold, bite or hair pull;

(F) modifying restraint equipment or applying any cuffing technique that connects handcuffs behind the back to ankle restraints;

(G) dragging or lifting of the youth by the hair or ear or by any type of mechanical restraints;

(H) lifting a youth's arms behind the back, while in mechanical restraints, in a manner that is capable of causing injury to the shoulder;

(I) using other youth or untrained staff to assist with the restraint;

(J) securing a youth to another youth or to a fixed object, other than to an agency-approved full-body restraint device; or

(K) administering a drug for controlling acute episodic behavior as a means of physical restraint, except when the youth's behavior is attributable to mental illness and the drug is authorized by a licensed physician and administered by a licensed medical professional.

(2) A physical contact that would otherwise be prohibited, under the above paragraph, does not include one that is only accidental and momentary.

(l) Requirements for Planned Team Restraint Situations.

(1) Criteria for Use. Planned team restraint is authorized only to:

(A) stop the youth from engaging in self-harm;

(B) prevent substantial property damage; or

(C) recover a weapon or item that has been adapted for use as a weapon and is capable of causing death or serious bodily injury.

(2) Requirements for Use.

(A) Prior to approval of planned team restraint, the facility administrator or administrative duty officer must personally observe the situation. Only the facility administrator or administrative duty officer may authorize a planned team restraint.

(B) All planned team restraints must be videotaped when practical, including a recording of a verbal description of the youth's conduct and all warnings provided the youth according to the agency approved script.

(D) The youth must be warned to discontinue the misconduct at least two times after the team is assembled and before the room entry. The team must provide continuous opportunities for compliance during the room entry.

(E) Use of the riot shield during a planned team restraint is limited to cases in which a youth has a weapon or a youth's behavior indicates there is a significant risk of harm to the staff members involved in the restraint.

(m) Requirements for Use of Mechanical Restraints.

(1) Guidelines for Use.

(A) Mechanical restraint equipment must not be secured so tightly as to interfere with circulation or so loosely as to permit chafing of the skin.

(B) When mechanical restraints are employed on a youth in a prone position, the youth is placed on his/her side as soon as practical in order to help ensure adequate respiration and circulation. The youth must be allowed to sit up as soon as his/her behavior is under control.

(C) A mechanical restraint, for other than transportation or riot control, shall be terminated as soon as the purpose for which the youth was restrained under subsection (h) of this section has been achieved, but in any event within 15 minutes, unless an extension is granted. Extensions may be granted by the facility administrator or designee for additional 30-minute intervals, until termination of restraint.

(D) When mechanical restraints are applied, staff shall ensure the youth's safety by checking the youth for adequate respiration and circulation every 15 minutes until termination of restraint. Staff will provide continuous visual supervision and appropriate assistance until the mechanical restraint is terminated.

(E) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain may be used when transporting a youth to a security unit, within a security unit, and from a security unit in order to prevent harm to the youth or others. These restraints may not be attached in a manner that prevents the youth from being able to stand upright. Mechanical restraints may remain on the youth during the duration of the activity, if circumstances warrant such restraints.

(2) Mechanical Restraint Use by TYC Transportation Staff. Mechanical ankle and wrist restraints attached to a waist belt by a lead chain shall be used during secure transportation by designated TYC transportation staff. Exceptions may be made for youth being transported following release on parole from a residential program or when medically necessary.

(3) Mechanical Restraint Use by Other Transporters.

(A) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain shall be used during transportation when a youth is being transported to a high restriction program.

(B) Mechanical ankle and wrist restraints attached to a waist belt by a lead chain may be used when transporting a youth off-campus.

(n) Requirements for Use of OC Spray.

(1) Persons Authorized to Use OC Spray.

(A) OC spray is permitted only in TYC-operated high restriction institutions.

(B) Unless reasonably believed necessary to prevent loss of life or serious bodily injury, authorization to use OC spray must be obtained from the facility administrator, assistant superintendent, or administrative duty officer prior to each use.

(C) The only staff authorized to routinely carry OC spray on-person are the facility administrator, assistant superintendent, administrative duty officer, juvenile correctional officer shift supervisor (one per shift), director of security, and security personnel whose primary responsibility is to patrol the campus and respond to security-related incidents. Any staff positions in addition to those listed must be authorized in writing by the executive commissioner or his/her designee.

(D) Only staff who have been trained by TYC in the use of OC spray are authorized to use it.

(2) Criteria for Use.

(A) Except as provided in paragraph (2)(B) of this subsection, OC Spray is authorized for use only when non-physical interventions and other physical interventions have failed or are not practical, and it is reasonably believed necessary to:

(i) quell a riot or major campus disruption;

(ii) resolve a hostage situation;

(iii) remove youth from behind a barricade in a riot or self-harm situation;

(iv) secure an object that is being used as a weapon and that is capable of causing serious bodily injury;

(v) protect youth, staff, or others from imminent serious bodily injury; or

(vi) prevention of escape.

(B) Unless reasonably believed necessary to prevent loss of life or serious bodily injury, OC spray is not authorized for use on a youth when a medical provider has diagnosed the youth with a chronic, serious respiratory problem or other serious health condition identified by TYC. (e.g., significant eye problems, known history of severe allergic reaction to OC, or severe dermatological problems).

(3) Guidelines for Use.

(A) OC spray canisters must be carefully controlled at all times.

(B) Any youth affected by OC spray will be decontaminated with cool water as soon as the purpose of the restraint has been achieved.

(C) Immediately following de-contamination from OC spray, medical staff will be contacted to examine and, if necessary, treat and monitor all youth and staff affected by OC spray.

(D) Each individually assigned canister of OC must be weighed at the time it is assigned and after each use.

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 August 3, 2009.

TRD-200903273

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

37 TAC §§97.35 - 97.37, 97.40, 97.41, 97.43

The Texas Youth Commission (TYC) adopts the repeal of §97.35, concerning temporary segregation of youth out-of-control, §97.36, concerning standard security unity program requirements, §97.37, concerning security intake, §97.40, concerning security program, §97.41, concerning community detention, and §97.43, concerning institution detention program without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2939).

The justification for repealing the rules is the availability of accurate and up-to-date information concerning TYC programming and operations.

The repeal of §97.35 allows for the content of this rule to be republished under a new section number, §95.20, which is also adopted in this issue of the Texas Register.

The repeal of §97.36 allows for the content of this rule to republished under a new section number, §97.40, which is also adopted in this issue of the Texas Register.

The repeal of §97.37 discontinues the Security Intake program at TYC's secure facilities. Youth will no longer be held in the Security Intake program for up to 24 hours while a determination is made whether or not to admit the youth to the security unit. New §97.40, which is adopted in this issue of the Texas Register, will require that this determination be made within one hour (or two if an extension is granted) after a youth is referred to the security unit.

The repeal of §97.40 allows for a significantly revised rule to be published in its place. The revised rule is adopted as a new rule in this issue of the Texas Register.

The repeal of §97.41 and §97.43 allows for the content of these rules to be republished under new section numbers, §95.59 and §95.61. The new rules are adopted in this issue of the Texas Register.

No comments were received regarding adoption of the proposed repeals.

The repeals are adopted under Human Resources Code §61.034, which provides TYC with the authority to adopt rules appropriate to the proper accomplishment of its functions.

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 August 3, 2009.

TRD-200903281

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014

37 TAC §97.40

The Texas Youth Commission (TYC) adopts new §97.40, concerning Security Program, with changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2940). Changes to the proposed text include clarification reflecting that youth may be admitted/extended in the security program if there is a reasonable belief that the youth will interfere with a requested due process hearing. Clarification was also added to show that an extension in the security program must be based on the youth's current behavior. The youth's initial behavior resulting in admission to the security program cannot be used to extend the youth's stay in security. Additional changes to the proposed text are outlined below, as described in the responses to public comments received.

The justification for the new rule is the establishment of enhanced protections against undue extensions in confinement, provision of more direct service delivery to youth in confinement, as well as compliance with nationally recognized best practices and accreditation standards.

The new rule requires that the central office director of residential services approve any extension in the security program resulting in confinement beyond five days. Previous rules required this level of review/approval only after 11 days in confinement. The new rule also specifies that required visits from the clinical, chaplaincy, medical, case management, and administrative departments must take place in the youth's room, or with the youth outside of the room, unless the youth's current behavior prohibits direct contact for safety reasons. The new rule also clarifies that the required hour of large muscle exercise may not be counted toward the daily requirement to provide five and one-half hours of academic services in the security unit unless the youth is currently enrolled in physical education as part of his/her normal academic schedule.

Comments regarding the rule were received from Advocacy Incorporated and Texas Appleseed. The comments are summarized below, along with TYC's responses.

Comment: The admission criteria should explicitly state that youth who are engaging in self-injurious and/or suicidal behavior, or are having an acute psychiatric emergency, should not be placed in security. This section should also explicitly state that youth cannot self-refer to security. If the agency disregards our suggestion that security is not an appropriate placement for youth who are engaging in self-injurious and/or suicidal behavior, or youth who are having an acute psychiatric emergency, this section should be amended to require these youth to be evaluated by a psychiatrist within one hour of placement in security and should receive direct mental health services daily during their stay in security.

Response: TYC has published separate rules containing procedures for managing youth who are experiencing psychiatric emergencies and/or displaying suicidal behavior. TYC is currently in the process of revising these rules as well as the practice of self-referral to the security unit and will take the comment into consideration. No changes were made to the proposed text as a result of the comment.

Comment: Subsection (j) should be consistent with §95.17(h)(3), relating to "education services" for youth in the Redirect program. It should also include the language found in §95.17(h)(4), so that youth who are receiving special education services continue to receive educational services that will enable the youth to meet the goals of the youth's Individualized Education Program (IEP). This would ensure that the needs of special education students will be met while they are placed in security.

Response: TYC agrees with the recommendation and has amended subsection (j)(6)(G) of the adopted text to refer to "education services" rather than "academic services". TYC also agrees that language currently included in §95.17 regarding the provision of special education services in accordance with a youth's IEP should be added to §97.40. The language has been added to the adopted text as new subsection (j)(6)(H).

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

§97.40.Security Program.

(a) Purpose. The Texas Youth Commission (TYC) operates security programs at its high restriction facilities in order to temporarily remove youth who engage in certain dangerous or disruptive behaviors from the general campus population. This rule establishes admission criteria, service delivery requirements, and security provisions, and requirements for due process and administrative review for youth admitted to the security program.

(b) Applicability. This rule applies to TYC-operated high restriction facilities that operate security units.

(c) Definitions. Security Unit--a secure building on the campus of a high restriction TYC facility which contains individual rooms and a central control station. Entry to and exit from the building are controlled exclusively by staff.

(d) General Provisions.

(1) Confinement in the security program shall not be used as punishment or as a convenience for staff.

(2) Youth shall be afforded all basic youth rights, as established in §93.1 of this title, while confined in the security program.

(3) Except as otherwise authorized by the division director over residential services or designee on a case-by-case basis, confinement in the security program shall not exceed five calendar days or a maximum of 120 hours.

(4) The security program shall be operated within the security unit.

(e) Admission Criteria. A youth may be admitted to the security program when there is a reasonable belief the youth has committed a major rule violation or a minor rule violation requiring referral to the security unit, and:

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

(2) the youth is a serious and immediate physical danger to others and staff cannot protect them except by admitting the youth to security program;

(3) confinement is necessary to prevent imminent and substantial damage to property;

(4) confinement is necessary to control behavior that disrupts programming to the extent that the current program cannot continue except by admitting the youth to the security program; or

(5) the youth is likely to interfere with a pending or ongoing investigation or a requested or scheduled due process hearing.

(f) Admission Process.

(1) Within one hour after a youth's arrival at the security unit (or up two hours if an extension is approved by the facility administrator or designee), a staff member will hold a Level III hearing in accordance with §95.57 of this title to determine whether admission criteria have been met. The staff member appointed to conduct the review must not have been involved in the referral to the security program.

(2) If admission criteria are not met, the youth must be returned to the general population immediately.

(3) If admission criteria are met, the youth will be admitted to the security program for up to 24 hours.

(g) Extension Process.

(1) Extension Criteria.

(A) A 24-hour extension may be authorized if the following criteria are met, as established through a Level III hearing conducted in accordance with §95.57 of this title:

(i) based on current behavior, one or more of the admission criteria listed in subsection (e)(1) - (5) of this section continue to be present; or

(ii) there is documented evidence that the youth is not complying with the security program rules of conduct.

(B) No more than four (4) extensions may be authorized by facility staff.

(2) Extensions Beyond Five Days.

(A) The division director over residential services or designee may approve extensions after the 5th day of confinement only when no less restrictive placement is suitable for managing the youth's behavior and:

(i) the youth continues to present an immediate physical danger to others; or

(ii) the youth continues to be likely to interfere with a pending or ongoing investigation or a scheduled hearing.

(B) Each extension is valid for up to 72 hours.

(h) Release to the General Population.

(1) A youth shall be released to the general population upon:

(A) the expiration of the most recently approved period in confinement; or

(B) prior to the expiration of the most recently approved period upon a determination that the youth's behavior no longer warrants confinement in the security unit.

(2) A youth may be released from the security program only by the director of security or a staff member authorized to conduct an admission hearing.

(i) Administrative Reviews and Appeals.

(1) The director of security or designee will review all admission and local extension decisions within one workday. The person reviewing the decision must not have been involved in the decision. If it is determined that admission or extension criteria were not met or appropriate due process was not provided:

(A) the youth will be returned to the general population immediately; and

(B) the youth's record will be corrected to reflect the overturned security admission or extension.

(2) The youth will be notified in writing of his/her right to appeal a security program admission or extension to the facility administrator or designee. Appeals of decisions made by the facility administrator will be decided by the division director over residential services or designee. The youth is notified in writing of the outcome of the appeal.

(j) Security Program Requirements.

(1) Staff shall visually check each youth at least once every 15 minutes and shall document youth activity and location during the check.

(2) Individual doors are locked.

(3) The security program will adhere to a standard schedule approximating that of the general population. The schedule must include at least four hours outside of the locked room for each youth if the youth's behavior permits.

(4) The standard schedule and security program rules of conduct will be posted and reviewed with youth.

(5) Staff from the administrative, clinical, and/or religious departments shall visit each youth at least once each day. A nurse and case manager shall visit each youth at least once each day. Actual entry into the room or removal of the youth from the room for the purpose of discussion or counseling constitutes a visit, unless a youth's behavior prohibits direct contact for safety reasons.

(6) Youth shall be provided:

(A) appropriate psychological and medical services;

(B) an intervention plan that addresses the behavior that resulted in the referral or extension;

(D) access to shower and hygiene routine at least once every 24 hours, as behavior permits;

(E) the same food, including snacks, prepared in the same manner as for other youth except for special diets that are prescribed on an individual basis by a physician, dentist, mental health professional, or approved by a chaplain;

(F) ability to earn privileges;

(G) access to at least five and one-half hours of education services each scheduled instructional day;

(H) educational services that will enable the youth to meet the goals of the youth's individualized education plan, if the youth is currently receiving special education services; and

(I) one hour each day of large muscle exercise out of the room or in an enclosed outdoor recreation area, as the youth's behavior and weather permit.

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 August 3, 2009.

TRD-200903280

Cheryln K. Townsend

Executive Commissioner

Texas Youth Commission

Effective date: September 1, 2009

Proposal publication date: May 15, 2009

For further information, please call: (512) 424-6014