Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter D. Comprhensive Diagnosis and Evaluation 25 TAC sec.sec.405.81-405.92 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis the repeal of existing sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation. The sections are replaced by new sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning determination of mental retardation and appropriateness for admission to mental retardation services, which are contemporaneously adopted on an emergency basis and proposed for public comment in this issue of Texas Register. In addition, the repeal of existing sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation is simultaneously proposed for public comment in this issue of the Texas Register. The purpose of the repeal is to permit the adoption of new rules which comply with provisions of House Bill 771 of the 73rd Texas Legislature which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act). The repeals are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers, and under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking authority. sec.405.81. Purpose. sec.405.82. Application. sec.405.83. Definitions. sec.405.84. Committee for Certification of Diagnosis and Evaluation (D&E) Centers. sec.405.85. Certification as a Diagnosis and Evaluation (D&E) Center. sec.405.86. Certification of Professionally Qualified Members of a Diagnosis and Evaluation Team. sec.405.87. Minimum Components of a Comprehensive Diagnosis and Evaluation. sec.405.88. General Provisions. sec.405.89. Charges for Diagnosis and Evaluation Services. sec.405.90. List of Certified Facilities. sec.405.91. Distribution. sec.405.92. References. Issued in Austin, Texas, on July 29, 1993. TRD-9326611 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 465-4670 Subchapter D. Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services 25 TAC sec.sec.405.81-405.92 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis new sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning determination of mental retardation and appropriateness for admission to mental retardation services. The emergency rules replace existing sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation, which are simultaneously repealed on an emergency basis in this issue of Texas Register . Also published simultaneously in this issue of the Texas Register is the proposal for public comment of new sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning determination of mental retardation and appropriateness for admission to mental retardation services, and the proposed repeal of existing sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation. The purpose of the emergency adoption is to comply with provisions of House Bill 771 of the 73rd Texas Legislature which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act), with an effective date of September 1, 1993. House Bill 771 requires the department to do away with comprehensive diagnosis and evaluations as the basis for admission into mental retardation services provided by community mental health and mental retardation centers and state facilities. Instead, a person seeking services must have a determination of mental retardation which can be performed by a physician or psychologist licensed to practice in Texas or by a psychologist certified by the department. House Bill 771 also amends the Texas Health and Safety Code to: require that an individual may not be admitted or committed to a residential care facility unless there is a determination of mental retardation and an interdisciplinary team makes a recommendation for the placement; permit an emergency admission to a residential care facility provided that both a determination of mental retardation and an IDT recommendation for the placement are forthcoming no later than 30 days after the admission; permit an individual to receive emergency services provided the services are available, the individual has an urgent need for those services, and a determination of mental retardation is performed within 30 days after the emergency services begin; and permit admission into a residential care facility for respite care without a determination of mental retardation under certain conditions. HB 771 also requires that a person may not be committed to a residential care facility unless the IDT report recommending the placement has been completed during the six months preceding the date of the court hearing. The new rules outline the procedures for implementing the provisions of HB 771 cited previously and also describe: the criteria for the certification of psychologists by the department; the various assessments that are to be performed based on the type of services requested; and a requirement that a person requesting admission to services receive a determination of appropriateness for mental retardation services that is in compliance with the TXMHMR Community Standards for Mental Retardation Services. The rules are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers, and under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking authority. sec.405.81. Purpose. The purpose of this subchapter is to: establish criteria for the certification of psychologists as provide required in the Texas Health and Safety Code, Title 7, sec.593.005; establish the criteria and format for determinations of mental retardation as required by the Texas Health and Safety Code, Title 7, sec.593.004; and describe the process for determining the appropriateness of admission of an individual applying for mental retardation services. sec.405.82. Application. The provisions of this subchapter apply to: (1) facilities of the Texas Department of Mental Health and Mental Retardation which provide services to individuals with mental retardation; (2) community mental health and mental retardation centers in their role as mental retardation authorities; (3) physicians and psychologists licensed by the state who make determinations of mental retardation; and (4) psychologists employed by a community center or facility who seek certification by the department. sec.405.83. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Adaptive behavior -The effectiveness with or degree to which an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group. Admissions team -A group of professionals as specified by the TXMHMR Community Standards for Mental Retardation Services whose function is to determine the appropriateness of admissions of individuals into mental retardation services. Community Center -A community mental health and mental retardation center established under the Texas Health and Safety Code, Title 7, Chapter 534. Department-The Texas Department of Mental Health and Mental Retardation. Deputy commissioner -The deputy commissioner for Mental Retardation Services. Determination of mental retardation-A determination that an individual meets the criteria for a diagnosis of mental retardation based on an interview with the individual and a professional assessment that employs diagnostic techniques adapted to that individual's cultural background, language, ethnic origins, and physical or sensory disabilities. Diagnostic services -As specified in 42 Code of Federal Regulations (CFR) 440.130(a), any medical procedures or supplies recommended by physicians or other licensed practitioners of the healing arts, within the scope of their practice under state law, to enable them to identify the existence, nature, or extent of illness, injury, or other health deviation in a recipient. Facility-A state school, state hospital, or state center of the Texas Department of Mental Health and Mental Retardation which provides mental retardation services. Interdisciplinary team (IDT)-A group of mental retardation professionals and paraprofessionals plus the individual with mental retardation and other concerned persons who assess the treatment, training, and habilitation needs of the individual and make recommendations for services. Mental retardation -Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period (birth to 18 years of age.) Mental retardation services-Programs and assistance provided or contracted by a community center or facility for individuals with mental retardation that may include a determination of mental retardation, interdisciplinary team recommendations, education, special training, supervision, care, treatment, rehabilitation, residential care, and counseling, but does not include those services or programs that have been explicitly delegated by law to other state agencies. Residential care facility-A facility for more than 15 individuals with mental retardation which is operated by the department or a community center and provides 24-hour domiciliary services, including services directed toward enhancing the health, welfare, and development of the residents. Subaverage general intellectual functioning-Measured intelligence on standardized general intelligence tests of two or more standard deviations below the age-group mean for the tests used. sec.405.84. Certification of Psychologists by the Department. (a) A person seeking certification as a psychologist by the department for the purpose of making determinations of mental retardation must: (1) be employed by a community center or facility; (2) have a master's degree in psychology from an accredited university; (3) produce evidence of graduate course work in individual intellectual assessment; (4) have supervised experience in adaptive behavior assessment; and (5) have one year's experience in mental retardation. (b) Documentation of the credentials described in subsection (a) of this section shall be submitted along with a letter requesting certification to the deputy commissioner at the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668. sec.405.85. Determination of Mental Retardation. (a) The first stage in determining an individual's appropriateness for admission to a community center or facility is a determination of mental retardation as described in the Texas Health and Safety Code, Title 7, sec.593.005. Written application for the determination may be submitted by the individual believed to have mental retardation, the parent of the individual who is a minor, or the guardian of the individual, as appropriate. (b) A determination may be made by a: (1) physician or psychologist licensed to practice in Texas; or (2) psychologist at a community center or facility who is certified by the department as described in sec.405.84 of this subchapter (relating to Certification of Psychologists by the Department). (c) The physician or psychologist may use a previous assessment from a school district, public or private agency, or another physician or psychologist if the physician or psychologist making the determination considers the assessment to be valid. (d) If the individual for whom a determination of mental retardation is being sought is indigent, the assessment shall be performed at the expense of the community center or facility. (e) A determination of mental retardation must be made using the Determination of Mental Retardation Report (Psychological Assessment) format which is described in sec.405.90(1) of this subchapter (relating to Report Formats). Each component listed in the format must be addressed. (f) A written report of the determination of mental retardation shall be sent within 30 calendar days to the person who requested the determination. (g) When mental retardation services are requested, a psychologist employed at a community center or facility shall: (1) endorse the determination made by a licensed physician or psychologist; or (2) conduct the necessary assessments to make a determination of mental retardation. The psychologist may base the determination on assessments performed by a school district, or a public or private agency. (h) The psychologist employed by the community center or facility shall document that the criteria for a diagnosis of mental retardation has been met as described in the definition of mental retardation in sec.405.83 of this subchapter (relating to Definitions) and that all the components in the Determination of Mental Retardation Report (Psychological Assessment) format, which is described in sec.405.90(1) of this subchapter (relating to Report Formats), have been addressed. (i) If a determination of mental retardation is contested by the community center or facility staff, arrangements shall be made to conduct further assessments as to whether the individual has mental retardation. If the individual is determined not to have mental retardation, access to services may be denied. (j) An individual seeking services, the parent of an individual who is a minor, or the guardian of an individual, as appropriate, shall be informed of the right to have the determination of mental retardation conducted independently of the community center or facility as described in subsection (b)(1) of this section. (k) The individual seeking services, the parent of the individual who is a minor, or the guardian of the individual, as appropriate, shall be informed of the right to an administrative hearing to contest a determination of mental retardation. (1) The community center or facility shall document that the appropriate person or persons were informed of the right to an administrative hearing. (2) The hearing shall be conducted in accordance with Chapter 403, Subchapter N of this title (relating to Administrative Hearings Arising Under the Persons with Mental Retardation Act). The results of the determination of mental retardation and recommendations shall be presented as evidence. sec.405.86. Admission to Community-Based Services. (a) After a determination of mental retardation has been finalized, the community center's admissions team shall determine the individual's appropriateness for mental retardation services in compliance with the provisions of the TXMHMR Community Standards for Mental Retardation Services. The admissions team shall: (1) review the individual's previous diagnostic information; (2) interview the individual and family members regarding the services being requested and the individual's interests, choices, and goals; and (3) determine the need for additional assessments. (b) In conjunction with the individual and family, the team shall: (1) determine what services are suited to the needs of the individual and consistent with rights guaranteed in the Texas Health and Safety Code, Title 7, Chapter 592 (Rights of Persons with Mental Retardation); and (2) develop an initial plan for services or make referrals to more appropriate service agencies. (c) If the individual is considered appropriate for admission to community- based services, the individual shall be enrolled in appropriate services as available. (d) An individual may receive emergency services without a determination of mental retardation under the provisions of the Texas Health and Safety Code, Title 7 sec.593.0275. However, a determination of mental retardation must be performed as described in sec.405.85 of this subchapter (relating to Determination of Mental Retardation) and a determination of appropriateness for admission as described in subsections (a) and (b) of this section within 30 calendar days following the date the services began. sec.405.87. Admission or Commitment to a Residential Care Facility. (a) When admission or commitment to a residential care facility is sought, an IDT shall meet to consider the appropriateness of the placement. As required in the Texas Health and Safety Code, Title 7, sec.593.013, no individual may be admitted or committed to a residential care facility unless an IDT recommends the placement. (b) The IDT shall: (1) interview the individual, the parent if the individual is a minor, and the guardian of the individual, if appropriate; (2) assess or review the person's: (A) determination of mental retardation; (B) social and medical history; (C) medical assessment, which shall include an audiological, neurological, and vision screening; (D) social assessment; and (E) determination of adaptive behavior level; (3) determine the individual's need for additional assessments, including educational and vocational assessments; (4) obtain any additional assessment(s) necessary to plan services; and (5) recommend services to address the individual's needs that consider the individual's interests, choices, and goals. (c) The assessments in subsection (b) of this section should follow the appropriate report formats described in s405.90 of this subchapter (relating to Report Formats). (d) The IDT shall prepare a written report of its findings and recommendations that is signed by each team member and shall send a copy of the report within 30 calendar days to the individual, the parent of the individual who is a minor, and the individual's guardian, as appropriate. (e) If the person is being considered for court commitment to a residential care facility, the IDT report must have been completed within the six months prior to the date of the court hearing. An IDT report ordered by a court shall be submitted promptly to the court, the individual or the individual's legal representative, the parent of the individual who is a minor, and the guardian of the individual, if appropriate. (f) An individual may be admitted to a residential care facility on an emergency basis without a determination of mental retardation and an IDT recommendation under the provisions of the Texas Health and Safety Code, Title 7, sec.593. 027(c). However, within 30 days of an admission for emergency services: (1) a determination of mental retardation must be performed as described in sec.405.85. of this subchapter (relating to Determination of Mental Retardation); and (2) an IDT must meet and make a recommendation as described in subsections (a)-(d) of this section. (g) An individual may be admitted to a residential care facility for respite services without a determination of mental retardation and an IDT recommendation under the provisions of the Texas Health and Safety Code, Title 7, sec.593.028. sec.405.88. General Provisions. (a) Each community center and facility shall make necessary provisions to assess non-English speaking individuals and individuals who have other communication deficits. (b) All assessments shall be confidential, as required in: (1) the Texas Health and Safety Code, Title 7, Subtitle D, (Persons with Mental Retardation Act); and (2) Chapter 403, Subchapter K of this title (relating to Client-identifying Information). (c) The determination of mental retardation and appropriateness for admission is to be distinguished from subsequent assessments completed in conjunction with annual habilitation planning meetings. The former is performed to determine if an individual is eligible for mental retardation services, to complete a diagnostic classification, and to develop an initial plan for services. sec.405.89. Charges for Determination of Mental Retardation and Admissions Eligibility. (a) Charges for a determination of mental retardation and related diagnostic services will be made in accordance with the following: (1) relevant provisions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act); and (2) Chapter 403, Subchapter C of this title (relating to Determination of Rates for Support, Maintenance, and Treatment). (b) For purposes of obtaining Medicaid reimbursement for diagnostic services, the services must be determined by a physician (M.D. or D.O.) to be reasonable and medically necessary in determining the existence, nature, or extent of illness, injury, or other health deviation in a recipient. This should be documented using the Medicaid Reimbursement Format which is described in sec.405.90(5) of this subchapter (relating to Report Formats). Required assessments include those described in sec.405.90(1)-(4) of this subchapter (relating to Report Formats.) sec.405.90. Report Formats.
    The following report formats are referenced in this subchapter. Copies can be obtained by contacting the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711. (1) Determination of Mental Retardation Report (Psychological Assessment) format; (2) Medical Evaluation Report format; (3) Social Information Report format; (4) Developmental Assessment Report format; and (5) Medicaid Reimbursement form. sec.405.91. Distribution. (a) this subchapter shall be distributed to: (1) members, Texas Mental Health and Mental Retardation Board; (2) the medical director and deputy commissioners; (3) associate and assistant deputy commissioners; (4) management and program staff in Central Office; (5) superintendents/directors of all department facilities; (6) board of trustees chairpersons, community centers; and (7) executive directors, community centers. (b) Copies of this subchapter shall be distributed to: (1) all county and juvenile court judges; and (2) commissioners of the following state agencies: (A) Health and Human Services Commission; (B) Texas Department of Health; (C) Texas Department of Human Resources; (D) Texas Youth Council; (E) Texas Rehabilitation Commission; and (F) Texas Education Agency. (c) A copy of this subchapter may be provided upon request to any individual seeking mental retardation services, the parent of an individual who is a minor, the guardian of an individual, or to the attorney of record of such persons. (d) A copy of this subchapter shall be provided to other public or private agencies or associations, including private providers, upon request. sec.405.92. References. Reference is made to the following statutes, federal regulations, and rules: (1) The Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act); (2) 42 Code of Federal Regulations (CFR), sec.440.130(a); (3) Chapter 403, Subchapter N of this title, (relating to Administrative Hearings Arising Under the Persons with Mental Retardation Act); (4) Chapter 403, Subchapter C of this title, (relating to Determination of Rates for Support, Maintenance, and Treatment); (5) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); and (6) TXMHMR Community Standards for Mental Retardation Services. Issued in Austin, Texas, on July 29, 1993. TRD-9326612 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 465-4670 Subchapter AA. Practice and Procedure with Respect to Administrative Hearing of the Department Arising Under the Mentally Retarded Persons Act of 1977 25 TAC sec.sec.405.661-405.678 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis the repeal of sec. s405.661-405.678 of Chapter 405, Subchapter AA, concerning practice and procedure with respect to administrative hearings of the department arising under the Mentally Retarded Persons Act of 1977. The sections would be replaced by new sec.sec.403.401-403.419 of Chapter 403, Subchapter N, concerning administrative hearings arising under the Persons with Mental Retardation Act, which are contemporaneously adopted on an emergency basis and proposed for public comment in this issue of the Texas Register. In addition, the repeal of sec.sec.405.661-405.678 is proposed for public comment contemporaneously in this issue of the Texas Register. The purpose of the repeal is to permit the adoption of new sections which comply with provisions of House Bill 771 of the 73rd Texas Legislature which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act). The repeals are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers, and under Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Department of Mental Health and Mental Retardation with rulemaking powers. sec.405.661. Purpose. sec.405.662. Definitions. sec.405.663. Applicability and Scope of this Subchapter. sec.405.664. Request for an Administrative Hearing. sec.405.665. Who May Request an Administrative Hearing. sec.405.666. Appointment of a Hearing Officer. sec.405.667. Setting a Time and Place for the Administrative Hearing. sec.405.668. Notice of a Hearing. sec.405.669. Representation of Parties. sec.405.670. Access to Records. sec.405.671. Prehearing Conference. sec.405.672. Notice of Filing; Service of Notice; Certificate of Service. sec.405.673. Rules of Evidence; Official Notice; Witnesses; Transcription. sec.405.674. Applicable Rules of the Department; General Administrative Procedures. sec.405.675. Final Decisions and Orders. sec.405.676. Appeal to County Court. sec.405.677. References. sec.405.678. Distribution. Issued in Austin, Texas, on July 29, 1993. TRD-9326615 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 465-4670 Subchapter FF. Consent to Treatment with Psychoactive Medication 25 TAC sec.sec.405.801-405.810 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis the repeal of sec. s405.801-405.812, concerning consent to treatment with psychoactive medication. The purpose of the emergency adoption is to comply with the Texas Health and Safety Code, sec.sec.576.103-576.106, 576.024-576.025, with an effective date of September 1, 1993. The emergency adoption of the subchapter which will replace it, also known as Chapter 405, Subchapter FF, is also adopted on an emergency basis in this issue of the Texas Register. The new subchapter includes provisions for petitioning for a court-order to administer medication to an involuntarily committed patient who refuses medication. The new subchapter prohibits administration of medication to an involuntarily committed patient who refuses without such a court-order. The repeal of these sections is adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers; and under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.405.801. Purpose. sec.405.802. Application. sec.405.803. Definitions. sec.405.804. Information Required to be Given. sec.405.805. Who May Give Informed Consent. sec.405.806. Documentation of Informed Consent. sec.405.807. Clients Admitted Under Texas Statutes. sec.405.808. Clients Committed Under Texas Statutes. sec.405.809. Documentation. sec.405.810. Emergencies. Issued in Austin, Texas, on August 2, 1993. TRD-9326662 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 465-4670 25 TAC sec.sec.405.801-405.812 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis new sec.sec.405.801-405.812 of Chapter 405, Subchapter FF, concerning consent to treatment with psychoactive medication. The rules adopted on an emergency basis are simultaneously proposed for public comment in this issue of the Texas Register. The purpose of the emergency adoption is to comply with the Texas Health and Safety Code, sec.sec.576.103-576.106, and 576.024-576.025, with an effective date of September 1, 1993. Section 405.802 extends the provisions of the subchapter to apply to those persons receiving inpatient services in mental health facilities when the services are operated by the department or funded through a contract between the facility and the department or a community mental health and mental retardation center (CMHMRC). Section 405.803 includes new definitions for "capacity," "emergency situation," "medication class," "psychoactive medication," and "refusal to consent to treatment with psychoactive medication." Section 405.808 establishes a prohibition on administration of psychoactive medication to a patient receiving court-ordered mental health services if the patient refuses to take the medication voluntarily unless a court-order allowing administration of the medication has been obtained. Section 405.809 addresses the process for obtaining such a court-order. Section 405.810 outlines the rights of persons for whom a petition to obtain an order to authorize administration of psychoactive medication has been filed. The rule is adopted on an emergency basis simultaneously with its proposal in this issue of the Texas Register and with the emergency and proposed repeal of the rule it would replace, which is also known as Chapter 405, Subchapter FF. These sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers, and under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.405.801. Purpose. The purpose of these rules is to prescribe procedures to be followed in administering psychoactive medications to certain patients served by the department and to assist in establishing therapeutic alliances between the patients and their treating physician. sec.405.802. Application. These rules apply to all state hospitals, state centers, and other mental health facilities operated by the Texas Department of Mental Health and Mental Retardation. The provisions of this subchapter also apply to persons receiving inpatient services in other mental health facilities when the services are funded through a contract between the facility and the department or a community mental health and mental retardation center (CMHMRC). sec.405.803. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Capacity-A patient's ability to: (1) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and (2) make a decision whether to undergo the proposed treatment. Emergency situation -A situation in which it is immediately necessary to administer medication to a patient to prevent: (1) imminent probable death or substantial bodily harm to the patient because the patient: (A) overtly or continually is threatening or attempting to commit suicide or serious bodily harm; or (B) is behaving in a manner that indicates that the patient is unable to satisfy the patient's need for nourishment, essential medical care, or self- protection; or (2) imminent physical or emotional harm to others because of threats, attempts, or other acts the patient overtly or continually makes or commits. Informed consent -Consent given by a person admitted to a mental health facility or the person's legally authorized representative when each of the following conditions have been met: (1) Legal capacity. The person giving the consent is not a minor and has not been adjudicated incompetent to manage his/her personal affairs by an appropriate court of law; (2) Comprehension of information. The person giving the consent has been provided and understands the information outlined in sec.405.804 of this title (relating to Information to Be Given); and (3) Voluntariness. The consent has been given voluntarily. Legally authorized representative-The parent, managing conservator, or guardian of a minor; or the guardian of the person of an adult. Medically appropriate treatment-Treatment with psychoactive medication based on a physician's judgment that such medication is clinically indicated and that the medication's potential benefits outweigh it's potential risks. Medication class -A group of medications with similar actions and indications for use, as outlined in "Classes of Medications Requiring Consent to Treatment with Psychoactive Medication," copies of which are available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668. Mental health facility-All state hospitals, state centers, and other facilities which provide inpatient mental health services. Minor-A person under 18 years of age who is not and has not been married or who has not had his/her disabilities of minority removed for general purposes. A person 16 or 17 years of age who has voluntarily admitted himself/herself to a mental health facility is not considered to be a minor. Psychoactive medication -A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and that is used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. "Psychoactive medication" includes the following categories when used as described in this subchapter: (1) antipsychotics or neuroleptics; (2) antidepressants; (3) agents for control of mania or depression; (4) antianxiety agents; (5) sedatives, hypnotics, or other sleep-promoting drugs; and (6) psychomotor stimulants. Refusal to consent to administration of psychoactive medication (refusal)- Actions which include the following behaviors: (1) The individual or legally authorized representative communicates orally, through sign language, or in writing that he/she refuses psychoactive medication. (2) The patient communicates through behavior that he/she refuses psychoactive medication, e.g., refusing to swallow oral medication, refusing to submit to hypodermic injection of psychoactive medication. (3) The individual pretends to swallow oral psychoactive medications, and the attending physician determines that the pretending behavior is due to an unwillingness to take the medication. (4) The individual gives an unacceptable response, which is a lack of response, no response, or an inadequate or a noncommittal response from the individual after he/she has received the standard risk/benefit explanation. A response is considered unacceptable if it does not meet the criteria for informed consent. sec.405.804. Information Required to be Given. (a) Before administering psychoactive medication to any patient in a mental health facility, the treating physician shall explain to the patient and/or to the patient's legally authorized representative, if the representative is available, the following in simple, nontechnical language (this explanation may be given by the registered nurse (RN) licensed vocational nurse (LVN) or physician's assistant (PA) if the treating physician cannot be present, but the treating physician must confirm the explanation with the patient and/or the patient's legally authorized representative, if the representative is available, within two working days, not including weekends or legal holidays): (1) the nature of the patient's mental illness and condition; (2) the beneficial effects on the patient's mental illness and/or condition expected as a result of treatment with the medication; (3) the probable health and mental health consequences to the patient of not taking the medication, including, as appropriate: (A) unnecessarily prolonged hospital stays; (B) repeated hospital admission; (C) deterioration in the patient's family, social, or work adjustment; and (D) the occurrence, increase, or reoccurrence of symptoms of mental illness. (4) the existence of generally accepted alternative forms of treatment, if any, that could reasonably be expected to achieve the same benefits as the medication; (5) a description of the proposed course of treatment with medication; (6) the fact that side effects of varying degrees of severity are a risk of all medication; (7) the side effects of the medication, including: (A) any side effects which are known to frequently occur in most persons; (B) any side effects to which the particular patient may be predisposed; and (C) the nature and possible occurrence of the potentially irreversible symptoms of tardive dyskinesia; (8) the need to advise mental health facility staff immediately if any of these side effects occur; (9) an instruction that the patient may withdraw consent at any time without negative actions on the part of staff; and (10) the patient's rights under this rule (as outlined in the MHRS 9-7. 1 form, copies of which are available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711). (b) The patient and his/her legal representative must also receive this information in writing, along with an offer to answer any questions concerning the treatment. sec.405.805. Who May Give Informed Consent. Informed consent to administer psychoactive medications may be given by the legally authorized representative of a patient, or by the patient if he/she meets the criteria for informed consent described in sec.405.803 of this title (relating to Definitions). Persons who have admitted themselves under the voluntary provisions of Texas statutes are presumed to have the legal capacity to consent. sec.405.806. Documentation of Informed Consent. (a) Informed consent for the administration of psychoactive medication will be evidenced by a completed copy of the department's form for consent to treatment with psychoactive medication (MHRS 9-7 form, copies of which are available from the Texas Department of Mental Health and Mental Retardation, P. O. Box 12668, Austin, Texas 78711) executed by the patient or his/her legally authorized representative. The executed form will establish a rebuttable presumption of valid consent and will be retained in the patient's record. (1) Any time the medication regimen is altered in a way which would result in a significant change in the risks or benefits for the patient, an explanation of the change will be provided to the patient and/or the patient's legally authorized representative. The explanation will include notification of the right to withdraw consent at any time. (2) A new consent shall be obtained if a change in medication class is proposed. (3) If psychoactive medication is administered PRN on a recurrent basis (more than 3 times in a seven day period) for the same or similar behaviors, situations, or conditions, use of the medication must be included as part of the ongoing plan of treatment, and consent must be obtained for its ongoing use. (b) If the patient or his/her legally authorized representative consents to the administration of psychoactive medication but refuses or is unable to execute the form, the treating physician will document the consent in the patient's record and on the MHRS 9-7 form. (c) The treating physician and/or RN/LVN/PA will discuss the administration of psychoactive medication with all patients for whom such medication has been prescribed, and will provide to them the explanation described in sec.405.804 of this title (relating to Information Required to be Given). This requirement shall include patients for whom an order to authorize the administration of psychoactive medications is filed. If the RN/LVN/PA gives the initial explanation for the consent information to the patient, then the treating physician must confirm the explanation and sign the MHRS 9-7 form within 2 working days, not including weekends or legal holidays. (d) A patient's refusal or attempt to refuse to receive psychoactive medication, whether given verbally or by other indications or means, shall be documented in the patient's clinical record, in the progress notes, and on the consent form (MHRS 9-7 form). (e) All consents will be reviewed with the patient or his/her legally authorized representative at least every 90 days. The review will include a discussion of the information outlined in sec.405.804 of this title (relating to Information to Be Given) as well as a discussion of the patient's or his/her legally authorized representative's wishes regarding continuation of the medication. sec.405.807. Patients Admitted Under Texas Statutes.
      Psychoactive medications will not be administered to patients admitted to a mental health facility under the voluntary, emergency, or OPC provisions of Texas statutes without informed consent, except as provided in sec.405.812 of this title (relating to Emergencies). sec.405.808. Patients Committed Under Texas Statutes.
        Psychoactive medications will not be administered to patients committed to a mental health facility under a temporary or extended order for mental health services without the informed consent of the patient except: (1) as provided in sec.405.812 of this title (relating to Emergencies); (2) when the patient is a minor or does not have the capacity to consent and the patient's legally authorized representative has consented to the administration; or (3) when the administration of the medication regardless of the patient's refusal is authorized by an order as outlined in sec.405.809 of this title (relating to Order Authorizing Administration of Psychoactive Medication) . sec.405.809. Order Authorizing Administration of Psychoactive Medication. (a) Filing of Petition. A physician who is treating a patient may petition a probate court or a court with probate jurisdiction for an order to authorize the administration of a class or classes of psychoactive medication regardless of the patient's refusal if: (1) the physician believes that the patient lacks the capacity to make a decision regarding the administration of the psychoactive medication; (2) the physician determines that the medication is the proper course of treatment for the patient; and (3) the patient is under an order for temporary or extended mental health services under the Texas Health and Safety Code, sec.574.034 or sec.574. 035 and the patient, verbally or by other indication, refuses to take the medication voluntarily. (b) Hearing on petition. A hearing on a petition for an order to authorize the administration of psychoactive medication regardless of the patient's refusal will be held in accordance with provisions outlined in the Texas Health and Safety Code, sec.sec.576.104-sec.576.106 of. (c) Issuance of order. (1) The court may issue an order authorizing the administration of one or more classes of psychoactive medication only if the court finds by clear and convincing evidence after the hearing that: (A) the patient lacks the capacity to make a decision regarding the administration of the proposed medication; and (B) treatment with the proposed medication is in the best interest of the patient. (2) In making its finding, the court shall consider: (A) the patient's expressed preferences regarding treatment with psychoactive medication; (B) the patient's religious beliefs; (C) the risks and benefits, from the perspective of the patient, of taking psychoactive medication; (D) the consequences to the patient if the psychoactive medication is not administered; (E) the prognosis for the patient if the patient is treated with psychoactive medication; and (F) alternatives to treatment with psychoactive medication. (3) An order entered under this section shall authorize the administration to a patient, regardless of the patient's refusal, of one or more classes of psychoactive medications specified in the petition and consistent with the patient's diagnosis. The order shall permit: (A) an increase or decrease in a medication's dosage; (B) reinstitution of medication authorized but discontinued during the period the order is valid; or (C) the substitution of a medication within the same medication class. (4) The issuance of an order authorizing administration of medication is not a determination or adjudication of mental incompetency and does not limit in any other respect the patient's rights as a citizen or the patient's property rights or legal capacity. (d) Appeal of order. A patient may appeal an order under this subchapter in the manner provided by the Texas Health and Safety Code, sec.574. 070 for appeal of an order requiring court-ordered mental health services. The order authorizing the administration of medication remains effective pending the appeal. (e) Review and expiration of order. (1) An order authorizing the administration of medication expires on the expiration or termination date of the order for temporary or extended mental health services in effect when the order for psychoactive medication is issued. (2) An order authorizing the administration of medication shall be reviewed by the court on an annual basis. sec.405.810. Rights of Patients for Whom an Order to Authorize the Administration of Psychoactive Medication is Filed. A patient for whom a petition for an order to authorize the administration of a psychoactive medication is filed is entitled to: (1) a hearing on the petition within seven days after the date the petition to authorize the administration of a psychoactive medication is filed; (2) have the hearing scheduled for a different date than the date of a hearing on an application for temporary court-ordered mental health services unless the patient and the patient's attorney agree in writing to have the hearings on the same date; (3) representation by a court-appointed attorney who is knowledgeable about issues to be adjudicated at the hearing; (4) meet with that attorney as soon as is practicable to prepare for the hearing and to discuss any of the patient's questions or concerns; (5) receive, immediately after the time of the hearing is set, a copy of the petition and written notice of the time, place, and date of the hearing; (6) be told, at the time personal notice of the hearing is given, of the patient's right to a hearing and right to the assistance of an attorney to prepare for the hearing and to answer any questions or concerns; (7) be present at the hearing, unless the patient's attorney waives the right and the court is satisfied by a clear showing that the patient's attendance would subject him/her to substantial risk of serious physical or emotional harm; (8) request from the court an independent expert; and (9) oral notification, at the conclusion of the hearing, of the court's determinations of the patient's capacity and best interests. sec.405.811. Documentation. Each step of the procedure described in this rule will be clearly documented in the patient's record. sec.405.812. Emergencies. (a) Nothing herein is intended to preclude the administration of psychoactive medication to any patient in an emergency as defined herein. (b) If a physician issues an order to administer psychoactive medication to a patient without the patient's consent because of an emergency situation: (1) the physician shall document in the patient's clinical record in specific medical or behavioral terms the necessity of the order and that the physician has evaluated but rejected other generally accepted, less intrusive forms of treatment, if any; and (2) treatment of the patient with the psychoactive medication shall be provided in the manner, consistent with clinically appropriate medical care, least restrictive of the patient's personal liberty. Issued in Austin, Texas, on August 2, 1993. TRD-9326661 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 465-4670