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 I. Texas Department of Health Chapter 98. HIV and STD Control Subchapter C. Texas HIV Medication Program General Provisions 25 TAC sec.98.104, sec.98.105 The Texas Department of Health (department) adopts on an emergency basis amendments to sec.98.104 and sec.98.105, concerning the Texas HIV Medication Program. The sections implement the provisions of the "Communicable Disease Prevention and Control Act," the Health and Safety Code, Subchapter C sec.85.063, Subchapter C, concerning the Texas HIV Medication Program. The program assists hospital districts, local health departments, public or nonprofit hospitals and clinics, nonprofit community organizations, and HIV- infected individuals in the purchase of medications approved by the board that have been shown to be effective in reducing hospitalizations due to HIV-related conditions. Generally, the sections cover eligibility for participation and medication coverage. The amendments expand coverage of the program to include Rifabutin for eligible participants; amends the criteria for Interferon-Alpha; and deletes specified drugs reimbursed to the Tuberculosis Elimination Division. The amendments are adopted on an emergency basis in order to expeditiously provide medications to HIV-infected individuals. It is imperative to address this serious and imminent health condition by providing approved medications as soon as possible. These amendments are also proposed for permanent adoption in this issue of the Texas Register. The amendments are adopted under the Health and Safety Code, sec.85.063, which provides the Texas Board of Health with the authority to adopt rules concerning a Texas HIV Medication Program; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health; and Texas Civil Statutes, Article 6252-13a, sec.5, which provides the Board with the authority to adopt rules on an emergency basis. sec.98.104. Medication coverage.
    The following medications will be provided to each eligible participant. (1)-(7) (No change.) [(8) Texas HIV Medication Program will reimburse the Tuberculosis Elimination Division for the following listed drugs used to treat atypical mycobacterial infections in individuals that are HIV infected: [(A) Amikacin-1 g. vial; [(B) Capreomycin-1 g. vial; [(C) Ciprofloxacin-750 mg. tablets; [(D) Cycloserine-250 mg. capsules; [(E) Ethambutol-100 mg. tablets; [(F) Ethambutol-400 mg. tablets; [(G) Ethionamide-250 mg. tablets; [(H) Isoniazid (INH) syrup; [(I) Isoniazid (INH)-100 mg. tablets; [(J) Isoniazid (INH)-300 mg. tablets; [(K) Kanamycin-1 g. vial; [(L) Pyrazinamide-500 mg. tablets; [(M) Pyridoxine (Vit.B-6)-50 mg. tablets; [(N) Rifampin-300 mg./Isoniazid (INH) 150 mg. capsules; [(O) Rifampin-300 mg. capsules; [(P) Sodium P.A.S. tablets; and [(Q) Streptomycin-5 g.] (8)
      [(9)] Acyclovir capsules must be provided in increments of 100, not to exceed 200 per month. Acyclovir suspension must be provided in 473 ml. bottles of 200 mg./5ml., not to exceed 2 bottles per month. Acyclovir powder for injection must be provided in 500 mg. vials, not to exceed 2-10 ml. vials per month. Acyclovir 800 mg tablets will be provided in increments of 100 tablets not to exceed 1 bottle of 100 tablets per month. (9)
        [(10)] Zalcitabine tablets must be provided in increments of 100 not to exceed 100 tablets per month. (10)
          [(11)] IV Pentamidine must be provided in 300 mg. vials not to exceed 14 vials per course of therapy (one vial per day for 14 days). (11)
            [(12)] Interferon-Alpha must be provided in commercially available vials not to exceed 450 million units per month. (12)
              [(13) ] Amphotericin-B must be provided in 50 mg. vials not to exceed 40 per month. (13)
                [(14)] Atovaquone must be provided in increments of 200 tablets not to exceed 200 tablets per 21 day treatment therapy following each diagnosis. (14) Rifabutin must be provided in increments of 100 capsules not to exceed 100 capsules each seven weeks. sec.98.105. Drug specific eligibility criteria. A person is eligible for: (1)-(9) (No change.) (10) Interferon-Alpha for the treatment of disseminated Kaposi's sarcoma in HIV-infected persons with T-cell counts over 200
                  [500]. The total amount to be expended on this drug is $122,600. The requesting physician must complete a form to be returned to the program which will allow the program to evaluate the benefits of providing this medication. (11)-(12) (No change.) (13) Rifabutin for the prevention of disseminated mycobacterium avium complex disease in patients with a CD4 cell count of 100 or less. The amount to be expended on this drug is up to $100,000, then pending available funding. Issued in Austin, Texas, on September 8, 1993. TRD-9328491 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: September 8, 1993 Expiration date: January 7, 1994 For further information, please call: (512) 458-7236 Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.sec.401.1-401.23, 401.40 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis new sec.sec.401.1-401.23, and 401.40 of Chapter 401, Subchapter A, concerning advisory committees. The new sections adopted on an emergency basis are contemporaneously proposed for public comment in this issue of the Texas Register. The purpose of the emergency adoption is to comply with the provisions of Senate Bill 383 (73rd Legislature), which requires that the department outline in rule form the purpose, tasks, and duration of each of its advisory committees. In addition to referencing the various committees, the new subchapter outlines reporting and membership requirements for the advisory committees. These sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provides emergency rulemaking powers, and under 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.401.1. Purpose. The purpose of this subchapter is to identify the purposes, tasks, duration, and reporting requirements of advisory committees of the Texas Department of Mental Health and Mental Retardation. sec.401.2. Application. This subchapter applies to the operations of the Texas Department of Mental Health and Mental Retardation (TXMHMR). sec.401.3. Advisory Committee Requirements. (a) Reporting. (1) On or before March 1 of each year, the chair of each advisory committee shall submit a report outlining: (A) the committee's work, including any specific products or accomplishments; and (B) the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (2) The report shall address the work and costs of the committee over the previous calendar year. (b) Membership. (1) Notwithstanding other law, an advisory committee may have no more than 24 members. The composition of the committee must provide a balanced representation between: (A) industries or occupations regulated or directly affected by the advised state agency; and (B) consumers of services provided either by the advised state agency or by industries or occupations regulated by the agency. (2) This section does not apply to an advisory committee if the committee must be composed in a manner that is inconsistent with this section under federal law or for federal funding purposes. sec.401.4. Citizen's Planning Advisory Committee. (a) The purpose of the Citizens' Planning Advisory Committee is to provide a formal mechanism for input that would not otherwise be available in the planning process. (b) Tasks of the Citizens' Planning Advisory Committee include: (1) advising the department on all stages of the development and implementation of its long-range plan; (2) reviewing the development, implementation, and any necessary revisions of the long-range plan; (3) reviewing the department's biennial budget request and assessing the degree to which the request allows for implementation of the long-range plan; and (4) advising the board on: (A) the appropriateness of the long-range plan; (B) any identified problems related to the implementation of the plan; (C) any necessary revisions to the plan; and (D) the adequacy of the department's budget process. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.5. Medical Advisory Committee. (a) The purpose of the Medical Advisory Committee is to aid, counsel, and assist the board regarding medical issues. (b) Tasks of the Medical Advisory Committee include: (1) making suggestions to the board concerning the medical needs of individuals receiving mental health and mental retardation services; (2) making suggestions and recommendations to the board concerning the overall quality of care for individuals receiving mental health and mental retardation services (3) responding to specific requests from the board for help and information; (4) alerting the board to problems and developments throughout the state and facilitating communications and cooperation among agencies, organizations, professions, and the public. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.6. Mental Health Planning Advisory Committee. (a) The purpose of the Mental Health Planning Advisory Committee is to provide advice on issues and initiatives regarding mental health services. (b) Tasks of the Mental Health Planning Advisory Committee include: (1) submitting recommendations for strategic planning; (2) developing recommendations for improved services; and (3) developing recommendations for policy revisions. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.7. Mental Retardation Planning Advisory Committee. (a) The purpose of the Mental Retardation Planning Advisory Committee is to provide advice on issues and initiatives regarding mental retardation services. (b) Tasks of the Mental Retardation Planning Advisory Committee include: (1) submitting recommendations for strategic planning; (2) developing recommendations for improved services; and (3) developing recommendations for policy revisions. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.8. Advisory Committee on Prescription Medications. (a) The purpose of the Advisory Committee on Prescription Medications is to recommend to the Texas Board of Mental Health and Mental Retardation information concerning different types of prescription medicine, based on generally accepted clinical and medical standards and practices, that shall be provided to each person who may receive prescription medication while receiving inpatient mental health services. (b) Tasks of the Advisory Committee on Prescription Medications include: (1) reviewing medical standards and practices; (2) conducting public hearings on desirable information to be provided to persons receiving prescription medications (if appropriate); and (3) submitting a report to the Texas Board of MHMR. (c) This advisory committee shall be abolished on June 1, 1994, unless reauthorized. sec.401.9. Treatment Methods Advisory Committee. (a) The purpose of the committee is to establish recommendations regarding the appropriateness or inappropriateness of a variety of treatment methods. (b) Tasks of the Treatment Methods Advisory Committee include: (1) reviewing treatment methods used in mental health facilities; (2) recommending to the board the treatment methods that should not be allowed; and (3) considering reports from state agencies on possible abusive treatment methods and on complaints relating to treatment methods. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.10. In-Home and Family Support Steering Committee. (a) The purpose of the In-Home and Family Support Steering Committee is to: (1) make recommendations to the commissioner regarding issues, policy, and law relevant to the program; (2) serve as a clearing house for assisting staff resolve issues relating to the program's implementation; and (3) assist in interpreting the law. (b) Tasks of the In-Home and Family Support Steering Committee shall include: (1) developing guidelines and recommending policy changes; (2) clarifying statewide implementation issues; (3) making presentations; and (4) providing direction to central office program staff. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.11. MI/Deaf Advisory Committee. (a) The purpose of the MI/Deaf Advisory Committee is to: (1) develop a statewide plan for the development of mental health services for Texans who are deaf or hearing-impaired; and (2) advise the commissioner on the impact of agency programs and policies on those who are deaf or hearing-impaired. (b) Tasks of the MI/Deaf Advisory Committee include: (1) submitting recommendations for strategic planning; (2) developing recommendations for improved services; and (3) developing recommendations for policy revisions. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.12. Case Management Advisory Committee. (a) The purpose of the Case Management Advisory Committee is to advise the commissioner and his Executive Council of the TXMHMR system in the development of policies and programs which ensure the provision of quality case management services to persons with mental illness, mental retardation, and related conditions as addressed in the TXMHMR Act and as required under the 1987 OBRA PASARR program. (b) Tasks of the Case Management Advisory Committee include: (1) providing a sounding board and forum for input in developing and maintaining policy, legislation, rules, procedures, or other proposed actions before their adoption; (2) encouraging communication between Central Office and the public, including provider and recipient groups, concerning contemporary issues in the delivery of case management services; (3) assisting in planning objectives and priorities; (4) providing an avenue for the public to bring issues to the attention of TXMHMR case management; (5) providing a means of measuring public opinions about the TXMHMR case management system's delivery of services; and (6) providing a channel to inform the public about the TXMHMR system's goals and priorities, organizational initiatives, and other activities. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.13. State Advisory Committee-Texas Children's Mental Health Plan. (a) The purpose of the State Advisory Committee-Texas Children's Mental Health Plan is to advise the State Management Team on statewide service array development for Texas Children's Mental Health Plan sites. (b) Tasks of the State Advisory Committee-Texas Children's Mental Health Plan include: (1) identifying and addressing demographic needs; (2) assembling equitable representation of service providers among participating agencies; (3) introducing and reviewing policy, rules, procedures, and other proposed actions as they pertain to interagency collaboration; (4) developing, implementing, and maintaining an interagency approach to service delivery; and (5) promoting and supporting intensive multi-agency collaboration throughout the state. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.14. Operations Planning Committee-Children's Services. (a) The purpose of the Operations Planning Committee-Children's Services is to plan and anticipate long-term service development for children's mental health within the state. (b) Tasks of the Operations Planning Committee-Children's Services include: (1) Identifying and addressing demographic needs; (2) providing a forum for varying levels of local, regional, and state feedback regarding children's mental health issues; (3) providing a platform for inclusive input from both rural and urban locations within the state; and (4) developing, planning, and monitoring mental health service development for children within the state. (c) This advisory committee shall be abolished on January 1, 1997, unless reauthorized. sec.401.15. Quality Services Council. (a) The purpose of the Quality Services Council is to: (1) educate and assist the mental health services system to improve the quality of services; (2) identify and support the achievement of quality, innovative, and excellent services; (3) review and recommend changes to standards, definitions, and measurement mechanisms; (4) recognize those services that balance successful implementation of the standards with increased customer satisfaction; and (5) facilitate the integration of evaluative processes of the mental health services system. (b) Tasks of the Quality Services Council include: (1) reviewing comments and concerns about the standards and the review process; (2) facilitating the resolution process; (3) communicating concerns and decisions throughout the TXMHMR system; (4) reviewing results of each quarter's site visits and reports from others on standards performance; (5) developing recommendations for contract managers on projected review schedules, sites, and focus areas; and (7) developing a system of recognition for identified exemplary programs. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.16. Executive Formulary Committee. (a) The purpose of the Executive Formulary Committee is to maintain and update the TXMHMR Formulary. (b) Tasks of the Executive Formulary Committee include: (1) recommending standards of drug use with the TXMHMR system which discourage unnecessary duplication of therapeutic alternatives while encouraging the highest standards of medical and pharmacy practice; (2) periodically reviewing pharmacological categories within the TXMHMR Formulary to ensure that its contents are consistent with state-of-the-art, efficacious, safe, and cost-effective therapy; (3) consulting with experts in clinical pharmacy, pharmacology, and other medical specialties as necessary to objectively assess drugs under consideration; and (4) considering objective treatises on drugs presented by committee members or other qualified individuals at the invitation of the Executive Formulary Committee. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.17. Service Equalization Advisory Committee. (a) The purpose of the Service Equalization Advisory Committee is to review standards of care in private and public mental health facilities and establish policies and procedures providing for an equalized standard of care. (b) Tasks of the Service Equalization Advisory Committee include: (1) reviewing existing standards of care in the public and private sectors; and (2) making recommendations for equalizing those standards of care. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.18. Nurse Practice Organization. (a) The purpose of the Nurse Practice Organization is to provide advice on issues and initiatives regarding nursing services. (b) Tasks of the Nurse Practice Organization include: (1) assisting in the development of system policies and procedures designed to provide optimal nursing care to consumers; (2) promoting the development and maintenance of public-academic linkages between state facilities/centers and Texas schools of nursing; (3) supporting the provision of nursing education offerings for TXMHMR nurses; (4) promoting professionalism of nursing within the service system through supporting networking and mentoring activities as well as scholarly initiatives (e.g., research, publication endeavors, conference participation). (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.19. Public Responsibility Committees. (a) The purpose of the public responsibility committee is to protect, promote, and advocate for the health, welfare, legal and human rights of individuals served by TXMHMR facilities. (b) Tasks of the public responsibility committee include receiving and investigating complaints and comments from persons served and their families and friends. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.20. Quality Leadership Councils. (a) The purpose of the quality leadership council is to guide the quality improvement evaluation process. (b) Tasks of the quality leadership council include: (1) monitoring facility activities; (2) providing consumer input; and (3) guiding planning and evaluation. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.21. Human Rights Committees. (a) The purpose of the human rights committee is to monitor the process of informing clients of their basic rights and to develop a means of resolution if a client right has been violated. (b) Tasks of the human rights committee include: (1) investigating and seeking resolution of complaints or concerns regarding rights of persons served; and (2) determining whether programmatic restrictions of rights constitute a violation of rights. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.22. Ethics Committees. (a) The purpose of the ethics committee is to provide, if requested, advice and consultation to physicians, parents, guardians, and family members regarding life-sustaining treatment decisions concerning clients certified to have a terminal condition. (b) Tasks of the ethics committee include: (1) reviewing cases being considered; and (2) obtaining consultations as appropriate for review. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.23. Training Development Team. (a) The purpose of the Training Development Team is to act as an advisory body in developing a curriculum to support training managers in staff development departments in the TXMHMR system. (b) Tasks of the Training Development Team include: (1) conducting a task analysis; (2) writing training objectives; (3) developing an instructional strategy; and (4) developing training materials. (c) This advisory committee shall be abolished January 1, 1997, unless reauthorized. sec.401.40. Distribution. The provisions of this subchapter shall be distributed to the members of the Texas Board of Mental Health and Mental Retardation; the TXMHMR medical director; deputy commissioners, associate deputy commissioners, and assistant deputy commissioners; superintendents/directors of all TXMHMR facilities; executive directors of all community mental health and mental retardation centers; and advocacy organizations. Issued in Austin, Texas, on September 10, 1993. TRD-9328729 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: October 1, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 206-4516 Subchapter J. Licensure of Private Psychiatric Hospitals 25 TAC sec.sec.401.581-401.583, 401.587-401.590, 401.592, 401. 593 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis the repeal of sec. s401.581-401.583, 401.587-401. 590, 401.592, and 401.593. The repeals of the sections are adopted on an emergency basis simultaneously with the emergency adoption of new Chapter 401, Subchapter J (relating to Standards of Care and Treatment in Psychiatric Hospitals). The purpose of the emergency adoption of the repeal is to allow for the adoption of a new subchapter which complies with provisions of Senate Bills 205, 207, and 210 (73rd Legislature), all effective as of September 1, 1993, or earlier. The bills outline a number of new provisions relating to standards of care and treatment in psychiatric hospitals. In keeping with legislative mandates, the new subchapter establishes TXMHMR as the regulatory authority for standards of care and treatment not only for freestanding private psychiatric hospitals, but also for the identifiable part of any hospital that provides mental health services if that hospital is licensed by the Texas Department of Health under the Health and Safety Code, Chapter 241. 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, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. In addition, the repeal of the sections is adopted to enact legislative mandates found in Senate Bills 205, 207, and 210 (73rd Legislature) . sec.401.581. Purpose. sec.401.582. Application. sec.401.583. Definitions. sec.401.587. Patient Care Requirements for Licensure. sec.401.588. Patient Rights. sec.401.589. Statutory Reviews: Enforcement of Laws sec.401.590. Reporting Requirements. sec.481.592. Distribution. sec.481.593. References. Issued in Austin, Texas, on September 10, 1993. TRD-9328773 Ann Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 206-4516 25 TAC sec.sec.401.584-401.586, 401.591 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis the repeal of sec. s401.584-401.586 and sec.401. 591. The repeals are adopted on an emergency basis simultaneously with the emergency adoption of new Chapter 401, Subchapter J (relating to Standards of Care and Treatment in Psychiatric Hospitals). The emergency repeal of sec.sec.401.581- 401.583, 401.587-401.590, 401.592-401.593 of this section is also published in this issue of the Texas Register with an immediate effective date. The purpose of the emergency adoption of the repeal is to allow for the adoption of a new subchapter which complies with provisions of Senate Bills 205, 207, and 210 (73rd Legislature), all effective as of September 1, 1993, or earlier. The bills outline a number of new provisions relating to standards of care and treatment in psychiatric hospitals. In keeping with legislative mandates, the new subchapter establishes the Texas Department Mental Health and Mental Retardation (TXMHMR) as the regulatory authority for standards of care and treatment not only for freestanding private psychiatric hospitals, but also for the identifiable part of any hospital that provides mental health services if that hospital is licensed by the Texas Department of Health under the Health and Safety Code, Chapter 241. 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, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. In addition, the repeal of the sections is adopted to enact legislative mandates found in Senate Bills 205, 207, and 210 (73rd Legislature) . sec.401.584. Submission of Plans and Specifications. sec.401.585. Construction and Inspections. sec.401.586. License Application Process. sec.401.591. Denial, Suspension, or Revocation of License. Issued in Austin, Texas on January 1, 1988. TRD-9328739 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Effective date: November 1, 1993 Expiration date: February 2, 1994 For further information, please call:(512) 206-4516 Subchapter J. Standards of Care and Treatment in Psychiatric Hospitals 25 TAC sec.sec.401.581-401.583, 401.587-401.590, 401.592-401.593 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis new sec.sec.401.581-401.583, 401.587-401.590, 401. 592- 401.593, concerning standards of care and treatment in psychiatric hospitals. The new sections are proposed simulataneously in this issue of the Texas Register. The repeal of sec.sec.401.581-401.583, 401.587-401.590, 401.592- 401.593, effective immediately, and the repeal of ssec.401.584-401. 593, effective November 1, 1993; both cover matters similar to those of the new sections being adopted on an emergency basis. The title of the subchapter, currently known as Licensure of Private Psychiatric Hospitals, is being amended and will be known as Standards of Care and Treatment in Psychiatric Hospitals. The emergency action is necessary to implement the numerous provisions of Senate Bills 205, 207, and 210 of the 73rd Texas Legislature. Senate Bill 205 provides additional or revised requirements concerning practices of intake, assessment, and admission, transfer, and advertising and marketing activities. Senate Bill 207 specifies requirements related to obtaining informed consent to medication and the confidential communication of patient records. Senate Bill 210 establishes the Texas Department Mental Health and Mental Retardation (TXMHMR) as the regulatory authority for standards of care and treatment not only for freestanding private psychiatric hospitals, but also for the identifiable part of any hospital that provides mental health services, if that hospital is licensed by the Texas Department of Health under the Health and Safety Code, Chapter 241. Senate Bill 210 also transfers licensure authority for private psychiatric hospitals licensed under Chapter 577 to the Texas Department of Health. Senate Bill 210 also has numerous provisions related to abuse, neglect, sexual exploitation, and unprofessional and unethical conduct. A common term has been developed to describe the various entities under the regulatory authority granted to TXMHMR through Senate Bill 210. The term "psychiatric hospital" has been chosen because it captures the essential elements of "private psychiatric hospital" and "hospital" as defined in the Health and Safety Code, Chapter 241. Patient rights are not discussed in this subchapter. Provisions relative to patient rights can be found in Chapter 404, Subchapter E, of this title, which is also adopted on an emergency basis in this issue of the Texas Register. A public hearing to accept testimony concerning the emergency edition of the document will be held on October 5, 1993, at 1:30 p.m., in the auditorium of the central office of TXMHMR, at 909 West 45th Street, Austin. Individuals requiring an interpreter for the hearing impaired should contact Linda Logan, director, Policy Development, at least 72 hours prior to the hearing at (512) 206-4516. The sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d); and under the Health and Safety Code, Title 7, sec.532.015(a), which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers; under the provisions of Senate Bill 205 of the 73rd Texas Legislature, regular session, which requires rulemaking on a number of issues related to care and treatment of patients; under the provisions of Senate Bill 207, which sets forth requirements for obtaining informed consent and requires rulemaking for certain provisions; and under the provisions of Senate Bill 210 of the 73rd Texas Legislature, which designates TXMHMR as the regulatory authority for hospitals licensed under Chapter 577 and Chapter 241 and requires treatment standards in all psychiatric hospitals to be the same and not less restrictive than standards in public mental hospitals. sec.401.581. Purpose. The purpose of this subchapter is to ensure proper care and treatment of patients in psychiatric hospitals. sec.401.582. Application. The provisions of this subchapter apply to: (1) persons operating psychiatric hospitals in Texas under Chapter 241 or Chapter 577 of the Texas Health and Safety Code; (2) applicants for licensure to operate a psychiatric hospital in Texas; and (3) persons contracting with or otherwise providing services to a psychiatric hospital in Texas. sec.401.583. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Admission-The formal acceptance of a prospective patient to a facility. Assessment-The administrative process a facility uses to gather information from a prospective patient, including a medical history and the problem for which the patient is seeking treatment, to determine whether a prospective patient should be examined by a physician to determine if admission is clinically justified. Community center - A community mental health center or a community mental health and mental retardation center administered by a board of trustees pursuant to the Texas Health and Safety Code, Chapter 534 et seq. Department-The Texas Department of Health. Emergency situation -A situation in which it is immediately necessary to administer medication to a patient to prevent: (A) imminent probable death or substantial bodily harm to the patient because the patient: (i) overtly or continually is threatening or attempting to commit suicide or serious bodily harm; or (ii) 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 (B) imminent physical or emotional harm to others because of threats, attempts, or other acts the patient overtly or continually makes or commits. Hospital-A general or special hospital as defined in the Health and Safety Code, sec.241.003(4) and (11) that includes an identifiable part of the hospital for the provision of mental health services. Intake-The administrative process for gathering information about a prospective patient and giving the prospective patient information about the facility and the facility's treatment and services. License-The permission granted to a person by the department to operate a private psychiatric hospital as defined in this subchapter. Mental health services-Includes all services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate mentally disordered and disabled persons, including persons mentally disordered and disabled from alcoholism and drug addiction. Person-Any individual, partnership, corporation, association, or joint stock company, and includes a receiver, trustee, assignee, or similar representative of these interests. Unless the context clearly indicates otherwise, the term also includes a political subdivision. Physician-A person licensed to practice medicine in the State of Texas or a person employed by any agency of the United States having a license to practice medicine in any state of the United States. Psychiatric hospital - (A) An establishment licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 577, offering inpatient services, including treatment, facilities, and beds for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, 51% of beds must be dedicated to the treatment of mental illness in adults and/or children. Services other than those of an inpatient nature are not licensed or regulated by the department and are considered only to the extent that they affect the stated resources for the inpatient components; or (B) that identifiable part of a hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health under the Texas Health and Safety Code, Chapter 241. 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, and includes: (A) antipsychotics or neuroleptics; (B) antidepressants; (C) agents for the control of mania or depression; (D) antianxiety agents; (E) sedatives, hypnotics, or other sleep-promoting drugs; and (F) psychomotor stimulants. Qualified mental health professional-A person who is: (A) a certified or licensed social worker as defined by the Human Resources Code, sec.50.001; (B) a chemical dependency counselor as defined by Section I, Chapter 635, Acts of the 72nd Legislature, Regular Session, 1991 (Texas Civil Statutes Article 4512o); (C) a licensed professional counselor as defined by the Licensed Professional Counselor Act, sec.2 (Texas Civil Statutes, Article 4512g); (D) a licensed marriage and family therapist as defined by the Licensed Marriage and Family Therapist Act (Texas Civil Statutes, Article 4512c-1); (E) a physician who is "practicing medicine" as defined by the Medical Practice Act, sec.1.03, (Texas Civil Statutes, Article 4495b) or a person employed by any agency of the United States having a license to practice medicine in any state of the United States; (F) a registered nurse as defined in law; or (G) a psychologist offering "psychological services" as defined by the Psychologists' Certification and Licensing Act, sec.2 (Texas Civil Statutes, Article 4512c). Special treatment procedures-Those procedures which include the use of any of the following: restraint; seclusion; electroconvulsive therapy; psychosurgery; behavior modification; unusual, investigational, and experimental drugs or therapy; maintenance drugs that have abuse potential; and research projects that involve inconvenience or risk to the patient. Threat-Actions in response to a request for discharge that are illegal or unjustified by the patient's condition. sec.401.587. Patient Care Requirements for Licensure. (a) In order to be eligible for licensure as a psychiatric hospital, a proposed facility must: (1) meet the definition of a psychiatric hospital as delineated in sec.401.583 of this title (relating to Definitions); (2) be in substantial compliance with the standards of care and treatment as described in this subchapter, and applicable state and federal laws. (b) Each psychiatric hospital shall provide overall operations, a physical plant, and all services and treatment in a manner consistent with recognized hospital standards. (1) For purposes of licensure, psychiatric hospitals, other than those operated by community centers, shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations; that is, the standards for inpatient settings in the current edition of the Accreditation Manual for Hospitals. Additionally, such hospitals shall comply with standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services for: (A) special treatment procedures; (B) patient rights; (C) patient management; (D) adult mental health services; (E) child and adolescent services; and (F) services in residential settings, partial-hospitalization settings and outpatient settings. (2) In keeping with accreditation policies currently set forth by the Joint Commission on Accreditation of Healthcare Organizations for inpatient programs of community centers, private psychiatric hospitals operated by community centers shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services. Additionally, such hospitals shall provide nursing, medical, and pharmacy services in accordance with standards set forth in the current edition of the Accreditation Manual for Hospitals. (c) The following provisions are requisite to obtaining and maintaining licensure by the Texas Department of Health: (1) Intake. The psychiatric hospital shall: (A) review with the prospective patient the patient's finances and insurance benefits; (B) explain to a prospective patient the patient's rights; and (C) explain to a prospective patient the facility's services and treatment process. (2) Assessment. An assessment for admission shall be conducted by a qualified mental health professional (QMHP). (A) As of September 1, 1994, and annually thereafter, the QMHP must have completed eight hours of inservice training on intake and assessment procedures. (B) The QMHP may conduct assessments and make recommendations concerning the need for physician evaluation for inpatient admission consistent with the practice act under which the QMHP's license is authorized. (3) Admissions. All admissions, voluntary or involuntary, must be ordered and clinically justified by a physician. (A) Voluntary admissions. A voluntary patient cannot be admitted for treatment unless: (i) the facility has a physician's signed order admitting the patient; (ii) the facility administrator or designee has signed a statement indicating that the patient has been accepted for admission; and (iii) within 72 hours prior to admission of a patient on a voluntary basis, (I) an in-person medical examination has been conducted by a physician; and (II) an in-person assessment of the need for psychiatric hospitalization has been ordered by a physician and performed by a qualified mental health professional. (B) Admission pursuant to emergency detention. No person shall be admitted to the hospital for emergency detention unless such admission is supported by a written statement in the patient record by a physician who has conducted a preliminary examination of the person and who has determined that the person meets the criteria for admission outlined in the Texas Health and Safety Code, sec.573.022. (i) A person cannot be taken to a psychiatric hospital for emergency detention unless the head of the facility agrees in advance to accept the individual. A facility shall only accept such patients when a physician is available to immediately evaluate the person to determine whether the person meets the criteria for emergency detention outlined in the Texas Health and Safety Code, sec.573.022. Upon arrival at the hospital, the rights of persons apprehended for emergency detention, as required under Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services) must be provided and explained to the patient by hospital staff. (ii) Submission of an application for voluntary admission after the person has been apprehended for emergency detention but before the preliminary evaluation for admission for emergency detention has been conducted does not negate the requirements for the preliminary evaluation for emergency detention under the Texas Health and Safety Code, sec.573.022 (Mental Health Code, Article 5547-27). (4) Treatment. The hospital must ensure that each patient's treatment is carried out by appropriately credentialed and privileged professionals. Patient evaluation and treatment planning and implementation are the responsibility of all participating professionals. Each patient will have a treating physician, who shall have final authority for care and treatment. (5) Reportable conduct. Allegations concerning potential abuse, neglect, sexual exploitation, unprofessional conduct, or unethical conduct shall be defined, reported, and actions taken in accordance with applicable state laws and the administrative rules of the Texas Department of Health and the Department of Protective and Regulatory Services. For purposes of this subchapter, threats, coercion, or restrictive actions intended to influence the treatment decisions of a patient shall also be considered abuse. (A) Coercive or restrictive actions that are illegal shall be investigated as possible abuse under this section. (B) Coercive or restrictive actions that are not justified by the person's condition, and that are in response to a person's request for discharge or refusal of medication, therapy, or treatment, or otherwise inquire into or use a right provided by law, shall be investigated as possible abuse under this section. (C) Substantiated allegations will be grounds for hospital licensure review and possible revocation and other penalties as provided by law. (6) Continuing care plan. The physician responsible for the patient's treatment shall prepare a continuing care plan for a patient to be discharged unless the patient does not require continuing care. The physician preparing the plan shall consult with the patient and mental health authority in the area in which the patient will reside before preparing the plan. The mental health authority is not required to participate in the development of a plan for a patient leaving a psychiatric hospital that is not owned or operated by a community center. (A) The physician shall deliver the plan to a community center or other provider in the county where the patient will reside and that has been designated by the commissioner of the Texas Department of Mental Health and Mental Retardation to provide continuing care services, or to any other provider that agrees to accept the patient, provided that the provision of care by the center or provider is appropriate. (B) A physician who believes that a patient does not need a continuing care plan shall document the reasons for this determination in the patient's clinical record. (7) Transfer or referral from a psychiatric hospital to an inpatient mental health facility. Prior to transferring a patient to another inpatient mental health facility, the psychiatric hospital shall: (A) provide notice to the receiving facility of the intent to transfer a patient; (B) provide the receiving facility with information pertinent to the patient's diagnosis and condition; (C) receive verification from the receiving facility that there is space, personnel, and services necessary to provide appropriate care for the patient; and (D) upon transfer of the patient, send the original or copies of the patient's appropriate clinical records to the receiving facility. (8) Each psychiatric hospital shall adopt policies and procedures establishing professionally recognized and accepted standards of care. (A) In developing such policies and procedures, each psychiatric hospital shall comply with the following rules of the Texas Department of Mental Health and Mental Retardation: (i) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (ii) Chapter 405, Subchapter E of this title (relating to Electroconvulsive Therapy); and (iii) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication), for those psychiatric hospitals operated by community centers and for those patients for whom a state mental hospital or community center is contracting for services with a psychiatric hospital. See sec.401.588 of this title, relating to Consent to Treatment with Psychoactive Medication, for rules governing all other patients in psychiatric hospitals. (B) Pending the promulgation of rules that specifically address the joint application of standards of care and treatment in private and public psychiatric sectors, each psychiatric hospital shall adopt policies and procedures consistent with departmental rules or other professionally recognized and accepted standards of care in the areas of: (i) prescribing practices for medications, including the use of polypharmacy, maximum dosage levels, and pharmacy review protocol; (ii) special treatment procedures, including aversive procedures; and (iii) procedures for restraint and seclusion. (9) Confidential communications or records may not be disclosed except as provided by the Texas Health and Safety Code, sec.sec.611.004, 611.0045, and 576. 006. (10) With the exception of state hospitals and state centers, federal hospitals, community centers, and psychiatric hospitals operated by community centers, psychiatric hospitals shall comply with the provisions of the Treatment Facilities Marketing Practices Act, Texas Health and Safety Code, sec.164.001 et seq. sec.401.588. Consent to Treatment with Psychoactive Medication. (a) A person may not administer a psychoactive medication to a patient receiving voluntary or involuntary mental health services who does not consent to the administration unless: (1) the patient is in an emergency situation; (2) the patient is younger than 16 years of age and the patient's parent, managing conservator, or guardian consents to the administration on behalf of the patient; (3) the patient does not have the capacity to consent and the patient's representative authorized by law to consent on behalf of the patient has consented to the administration; or (4) the administration of the medication regardless of the patient's refusal is authorized by a judicial order issued under the Texas Health and Safety Code, sec.574.106; except that the use of this paragraph (4) and right to a judicial determination on whether a person may be required to take medication against their will is available only to a person in a psychiatric hospital operated or funded by the Texas Department of Mental Health and Mental Retardation (TDMHMR), including: (A) state facilities, (B) psychiatric hospitals owned or operated by a community center; or (C) any psychiatric hospital contracting with or otherwise receiving funds from the Texas Department of Mental Health and Mental Retardation or a community center, for those patients in contracted or funded beds. (c) Consent to the administration of psychoactive medication given by a patient or by a person authorized by law to consent on behalf of the patient is valid only if: (1) the consent is given voluntarily and without coercive or undue influence; (2) the treating physician, licensed nurse, or physician's assistant provided the following information in a standard format approved by the department, to the patient and, if applicable, to the patient's representative authorized by law to consent on behalf of the patient: (A) the specific condition to be treated; (B) the beneficial effects on that condition expected from the medication; (C) the probable health and mental health consequences of not consenting to the medication; (D) the probable clinically significant side effects and risks associated with the medication; (E) the generally accepted alternatives to the medication, if any, and why the physician recommends that they be rejected; and (F) the proposed course of the medication; (3) the patient and, if appropriate, the patient's representative authorized by law to consent on behalf of the patient is informed in writing that consent may be revoked; and (4) the consent is evidenced in the patient's clinical record by the signed form or by a statement of the treating physician, licensed nurse, or physician's assistant that documents that consent meeting the requirements of this section was given by the appropriate person and the circumstances under which the consent was obtained. (d) If a person other than the treating physician provides the information under subsection (c), then, not later than two working days after that person provides the information, excluding weekends and legal holidays, the physician shall meet with the patient and, if appropriate, the patient's representative who provided the consent, to review the information and answer any questions. The physician must document confirmation of the consent in the patient's clinical record. (e) 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. (f) In prescribing psychoactive medication, a treating physician shall: (1) prescribe, consistent with clinically appropriate medical care, the medication that has the fewest side effects or the least potential for adverse side effects, unless the class of medication has been demonstrated or justified not to be effective clinically; and (2) administer the smallest therapeutically acceptable dosages of medication for the patient's condition. (g) If a physician issues an order to administer psychoactive medication to a patient without the patient's consent because the patient is having a medication-related emergency: (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. sec.401.589. Enforcement of Laws. (a) The Texas Department of Health may make such investigations as it deems necessary and proper to obtain compliance with the provisions of this subchapter. (b) For psychiatric hospitals, the Texas Department of Health shall enforce the applicable rules and standards adopted by the department to the same extent as it enforces rules adopted by the Texas Board of Health. A violation of this subchapter is subject to the same consequences as a violation of a rule adopted by the Texas Board of Health. sec.401.590. Reporting Requirements. (a) Each psychiatric hospital shall report all alleged incidents of patient abuse and neglect in accordance with the requirements of the Texas Department of Health and the Texas Department of Protective and Regulatory Services. (b) The department may require every psychiatric hospital to make annual, periodic, and special reports and to keep such records as it considers necessary to ensure compliance with the provisions of the Texas Health and Safety Code, Chapters 241 and 571-578 and such rules, regulations, and standards as the Texas Department of Mental Health and Mental Retardation or the department prescribes. sec.401.592. Distribution. (a) The provisions of this subchapter shall be distributed to the Texas Board of Mental Health and Mental Retardation; medical director, deputy commissioners, assistant deputy commissioners, and directors of Central Office; and to psychiatric hospitals and applicants. (b) Each psychiatric hospital shall ensure distribution of this subchapter to all appropriate staff. (c) The provisions of this subchapter shall be distributed to the Texas Board of Health and appropriate staff at the Texas Department of Health. sec.401.593. References. Reference is made in this subchapter to the following laws, rules, and standards: (1) Texas Health and Safety Code, Subtitle C, Chapters 571-578; (2) Texas Health and Safety Code, Chapter 241; (3) Texas Health and Safety Code, Chapter 164; (4) The Joint Commission on Accreditation of Healthcare Organizations Accreditation Manual for Hospitals, most recent edition; and (5) The Joint Commission on Accreditation of Healthcare Organizations Accreditation Manual for Mental Health, Chemical Dependency, Mental Retardation/Developmental Disabilities Services Manual, most recent edition. Issued in Austin, Texas, on September 10, 1993. TRD-9328728 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 206-4516 Chapter 404. Protection of Clients and Staff Subchapter E. Rights of Persons Receiving Mental Health Services 25 TAC sec.sec.404.151-404.166 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis the repeal of sec. s404.151-404.166 of Chapter 404, Subchapter E, concerning rights of persons receiving mental health services. The repeal of the subchapter is adopted on an emergency basis contemporaneously with its regular proposal in this issue of the Texas Register and with the emergency adoption of the subchapter it would replace, which is also known as Chapter 404, Subchapter E. The new subchapter is also proposed on a regular basis in this issue of the Texas Register. The purpose of the emergency adoption of the repeal is to allow for the adoption of a new subchapter which complies with provisions of Senate Bills 205, 207, and 210 (73rd Legislature), all effective as of September 1, 1993, or earlier. The bills outline a number of new rights for persons receiving mental health services. In addition, the new subchapter meets a legislative mandate to expand its application to include the care and treatment of persons receiving services in hospitals licensed under Chapter 241 of the Texas Health and Safety Code. 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, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. In addition, the repeal of the sections is adopted to enact legislative mandates found in Senate Bills 205, 207, and 210 (73rd Legislature) . sec.404.151. Purpose. sec.404.152. Application. sec.404.153. Definitions. sec.404.154. Rights of All Persons Receiving Mental Health Services. sec.404.155. Rights of Persons Receiving Residential Mental Health Services. sec.404.156. Additional Rights of Persons Receiving Residential Mental Health Services at Department Facilities. sec.404.157. Rights of Persons Voluntarily Admitted to Inpatient Services. sec.404.158. Rights of Persons Apprehended for Emergency Detention for Inpatient Mental Health Services (other than for Chemical Dependency). sec.404.159. Rights of Persons Apprehended for Emergency Detention for Inpatient Chemical Dependency Services. sec.404.160. Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Private Psychiatric Hospitals Operated by Community Centers. sec.404.161. Patient's Bill of Rights for Individuals Receiving Mental Health Services at Private Psychiatric Hospitals Not Operated by a Community Center. sec.404.162. Communication of Rights to Individuals Receiving Mental Health Services. sec.404.163. Rights Protection Officer at Department Facilities and Community Centers. sec.404.164. Staff Training in Rights of Persons Receiving Mental Health Services. sec.404.165. References. sec.404.166. Distribution. Issued in Austin, Texas, on September 10, 1993. TRD-9328734 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 206-4516 25 TAC sec.sec.404.151-404.167 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis new sec.sec.404.151-404.167 of Chapter 404, Subchapter E, concerning rights of persons receiving mental health services. The new subchapter is adopted on an emergency basis contemporaneously with its regular proposal in this issue of the Texas Register and with the emergency and proposed repeal of the subchapter it would replace, which is also known as Chapter 404, Subchapter E. The purpose of the emergency adoption is to comply with provisions of Senate Bills 205, 207, and 210 (73rd Legislature), all effective as of September 1, 1993, or earlier. The term "private psychiatric hospital" is replaced with "psychiatric hospital" throughout the document. Section 404.153 includes a new definition for "hospital" and a revised definition for "psychiatric hospital." In keeping with legislation, the application of the subchapter is expanded to include the care and treatment of persons receiving mental health services at facilities licensed under Chapter 241 of the Texas Health and Safety Code. Section 404.154 includes new references for rules relating to abuse and neglect. In addition, the right to obtain an independent examination or evaluation at the expense of the individual is included. The section reflects the extension of Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication) to mental health facilities funded through a contract with the department or a community MHMR center. The section also references a prohibition on the use of electroconvulsive therapy on minors under the age of 16 and clarifies provisions relating to an individual's right to access to information contained in his or her record. Two new rights are added to sec.404.155: the right to information about any prescription medications ordered by the treating physician (effective May 1, 1994), and the right to receive, within four hours of a written request, a list of the medications prescribed for administration to the individual while the individual is in the department facility, community center, or psychiatric hospital. Provisions relating to limitations of rights outlined in sec.404. 155(b) are clarified. Section 404.157 reflects new procedures relating to actions taken in response to a request for discharge from an individual receiving voluntary services as outlined in the Texas Health and Safety Code. Section 404.160 addresses special rights of minors receiving inpatient mental health services. Section 404.162 requires the development and distribution of a "Teen's Bill of Rights" and a children's bill of rights in the form of a story, "The Little Dinosaur Named Wilbur," with supplementary material. References are updated in sec.404.166. A public hearing will be held to accept testimony on the sections as proposed on Tuesday, October 5, 1993, at 1:30 p.m., in the TXMHMR Central Office Auditorium at 909 West 45th Street, Austin, TX 78756. The hearing will be held in conjunction with a public hearing on emergency new rules relating to Standards of Care and Treatment in Psychiatric Hospitals (Chapter 401, Subchapter J). If interpreters for the hearing impaired are required, please notify Linda Logan at (512) 206-4516 at least 72 hours prior to the hearing. The new sections 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 Board of Mental Health and Mental Retardation with rulemaking powers. In addition, the sections are adopted to enact legislative mandates found in Senate Bills 205, 207, and 210 (73rd Legislature). sec.404.151. Purpose. The purpose of this subchapter is: (1) to provide to persons receiving mental health services: (A) a listing of the specific rights guaranteed to them; (B) the assurance that these rights must and will be made known to them, and, when applicable, to the persons having legal responsibility for them (i.e., parent of a minor, managing conservator, legal guardian of the person, limited legal guardian of the person); and (C) assistance in exercising their rights in a manner which does not conflict with the rights of other persons; (2) to require the development of rights handbooks and their distribution to persons receiving mental health services and, when applicable, to the persons with legal responsibility for them and other interested parties; (3) to require the appointment of a rights protection officer at each department facility and community MHMR center which provides mental health services; and (4) to ensure that department facility, community center, and psychiatric hospital employees are aware of the rights of persons receiving mental health services. sec.404.152. Application. The provisions of this subchapter shall apply to each of the following in which mental health services are provided: (1) facilities of the Texas Department of Mental Health and Mental Retardation and their respective community-based programs; (2) community centers; (3) psychiatric hospitals; and (4) any program contracting with these entities. sec.404.153. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Community center -A community mental health and mental retardation center established under Texas Health and Safety Code, Title 7, Chapter 534. Department-The Texas Department of Mental Health and Mental Retardation. Department facilities -The state hospitals and state centers which provide mental health services, and their respective community-based programs. Emergency-A situation in which, in the opinion of the treating physician, the immediate use of medication, or, in the opinion of the treating physician or other appropriate professional, the immediate use of restrictive techniques is essential to interrupt imminent physical danger to self or others. Grounds privileges -Access, with or without supervision, to areas of the department facility or psychiatric hospital away from an individual's living unit. Hospital-A general or special hospital as defined in the Health and Safety Code, sec.241.003(4) and sec.241.003(11), that includes an identifiable part of the hospital for the provision of mental health services. Inpatient services -Residential services provided in a department facility, a licensed hospital unit, a licensed crisis stabilization unit, or a psychiatric hospital. Intrusive searches -The tactile and/or visual examination of an individual's partially or fully unclothed body, personal belongings, or space designated for the storage of the individual's personal belongings. Intrusive searches do not include: (A) routine searches of belongings for contraband at the time of admission, return from pass, or transfer; (B) superficial external pat-downs by staff of the same sex; (C) daily room checks for housekeeping and chore completion; and (D) physical assessments by nurses and physicians. Mental health services-Includes all services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate mentally disordered and disabled persons, including persons mentally disordered and disabled from alcoholism and drug addiction. Office of Consumer Services and Rights Protection -The office located within the department's Central Office which maintains the toll-free telephone line (1- 800-252-8154) to receive rights-related complaints and which is responsible for assisting persons receiving mental health services with needed services and rights protection. Psychiatric hospital - (A) An establishment licensed by the Texas Department of Health under Chapter 577 of the Texas Health and Safety Code offering inpatient services, including treatment, facilities, and beds for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, a majority of beds (51%) must be dedicated to the treatment of mental illness in adults and/or children. Services other than those of an inpatient nature are not licensed or regulated by the department and are considered only to the extent that they affect the stated resources for the inpatient components; or (B) that identifiable part of a hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health under Chapter 241 of the Texas Health and Safety Code. Residential services -Twenty-four hour services provided and/or contracted by the department or a community center (e.g., structured group residential programs, halfway houses, hospital units providing MH services, crisis stabilization units, etc.) or a psychiatric hospital. Rights protection officer-An individual appointed by the head of a department facility or community center to protect and advocate for the rights of persons receiving mental health services. Unusual medications -Medication that has not been approved by the Food and Drug Administration for use in the United States, or medication that is being used to treat conditions for which its use has not been demonstrated through rational scientific theory and evidence in biomedical literature, controlled clinical trials, or expert medical opinion. sec.404.154. Rights of All Persons Receiving Mental Health Services. Persons receiving mental health services from department facilities, community centers, and psychiatric hospitals have the following rights. (1) The rights, benefits, responsibilities, and privileges guaranteed by the constitutions and laws of the United States and the State of Texas unless they have been restricted by specific provisions of law. These rights include, but are not limited to, the right to impartial access to treatment, regardless of race, nationality, religion, sex, ethnicity, sexual orientation, age or disability; the right to petition for habeas corpus; the right to register and vote at elections; the right to acquire, use, and dispose of property including contractual rights; the right to sue and be sued; all rights relating to the granting, use, and revocation of licenses, permits, privileges, and benefits under law; the right to religious freedom; and rights concerning domestic relations. (2) The right to presumption of mental competency in the absence of a judicial determination to the contrary. There may be limitations to this right found in department rules, including Texas Administrative Code (TAC) Chapter 710, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities), TAC Chapter 710, Subchapter B of this title (relating to Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers), and TAC Chapter 710, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Facilities). Department facilities and community centers should also reference Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication). Any questions regarding applicability of this right or a limitation on it should be referred for appropriate legal advice. (3) The right to a humane treatment environment that ensures protection from harm, provides privacy to as great a degree as possible with regard to personal needs, and promotes respect and dignity for each individual. (4) The right to appropriate treatment in the least restrictive appropriate setting available consistent with the protection of the individual and the protection of the community. (5) The right to be informed of all rules and regulations of the department facility, community center, or psychiatric hospital relating to expectations of the individual's conduct. Staff must document in the medical record that this information was provided. (6) The right to communication in a language and format understandable to the individual for all services provided. (7) The right to participate actively in the development and periodic review of an individualized treatment plan (extending to a parent or conservator of a minor, and the legal guardian of the person, when applicable); and the right to a timely consideration of any request for the participation of any other person in this process, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified to participate. (8) The right to explanations of the care, procedures, and treatment to be provided; the risks, side effects, and benefits of all medications and treatment procedures to be used, including those that are unusual or experimental; the alternative treatment procedures that are available; and the possible consequences of refusing the treatment or procedure. This right extends to the parent or conservator of a minor, the legal guardian of the person, when applicable, and to any other person authorized by the individual served. (9) The right to refuse particular treatments without prejudice to participation in other programs, or without compromising access to other treatments or services solely because of the refusal. (10) The right to meet with the professional staff members responsible for the individual's care and to be informed of their professional discipline, job title, and responsibilities. In addition, the individual has the right to an explanation of the justification involving any proposed change in the appointment of staff members responsible for the individual's care. (11) The right to obtain an independent psychiatric, psychosocial, psychological, or medical examination or evaluation by a psychiatrist, physician, or nonphysician mental health professional of the individual's choice at the individual's own expense. The department facility, community center, or psychiatric hospital administrator shall allow the individual to obtain the examination or evaluation at any reasonable time. (12) The right to request the opinion of a consultant at the individual's own expense and to be granted an in-house review of the individual treatment plan or specific procedure upon reasonable request as provided for in the written procedures of the department facility, community center, or psychiatric hospital. (13) The right to an explanation of the justification of any transfer of the individual to any program within or outside of the department facility, community center, or psychiatric hospital. (14) The right to participate actively in the development of a discharge plan addressing aftercare issues which include the individual's mental health, physical health, and social needs. This right extends to a parent or conservator of a minor, or the legal guardian of the person, when applicable. The individual also has the right to a timely consideration of any request for the participation of any other person in this discharge planning, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified to participate. (15) The right to information, upon request, pertaining to the cost of services rendered (itemized when possible), the sources of the program's reimbursement, and any limitations placed upon the duration of services. At department facilities and community centers, no person will be denied services due to an inability to pay for them. (16) The right to be free from unnecessary or excessive medication, which includes the right to give or withhold informed consent to treatment with psychoactive medication, unless the right has been limited by court order or in an emergency. For individuals receiving inpatient services at department facilities, community centers, or other mental health facilities when those services are operated by the department or funded by the department through a contractual or other agreement, this right may only be limited in accordance with the provisions of Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication). (17) The right to give or withhold informed consent to participate in research programs without compromising access to services to which the individual is otherwise entitled. (18) The right to give or withhold informed consent for the use or performance of any of the following (exceptions to this right must be in accordance with applicable laws, standards, or, for department facilities and community centers, department rules, and must be fully explained to the individual and the person authorized to give consent, if applicable): (A) surgical procedures; (B) electroconvulsive therapy (prohibited for minors under the age of 16); (C) unusual medications; (D) behavior therapy; (D) hazardous assessment procedures; (E) audiovisual equipment; and (F) other procedures for which consent is required by law. (19) The right to withdraw consent at any time in any matter in which the person receiving services has previously granted consent, without limiting or compromising access to services or other treatment(s). (20) The right to be informed of the current and future use and disposition of products of special observation and audiovisual techniques, such as one-way vision mirrors, tape recorders, television, movies, or photographs. (21) The right to confidentiality of records and the right to be informed of the conditions under which information can be disclosed without the individual's consent. At department facilities and community centers, client-identifying information shall be disclosed in accordance with Chapter 403, Subchapter K of this title (relating to Client-Identifying Information). At psychiatric hospitals, client-identifying information shall be disclosed in accordance with the provisions of sec.sec.611.001-611.005 of the Texas Health and Safety Code and 42 Code of Federal Regulations, Part 2. (22) The right to have access to information contained in one's own record. The right extends to the parent or conservator of a minor (unless the minor has admitted himself/herself for chemical dependency services) and to the legal guardian of a person declared to be legally incompetent. Department facilities and community centers should also reference Chapter 403, Subchapter K (relating to Client-Identifying Information) regarding this right. (A) Confidential information about another person who has not consented to the release may be deleted from the record prior to its release, unless it is: (i) information relating to the patient that another person has provided; (ii) the identity of the person responsible for that information; or (iii) the identity of the any person who provided information that resulted in the patient's commitment. (B) This right may be limited by a mental health professional if the professional determines that release of a portion of the information would be harmful to the individual's physical, mental, or emotional health. (C) Any denial of access to information shall be in keeping with and reviewed regularly according to provisions outlined in the Texas Health and Safety Code, sec.611. 004 or sec.611.0045. Individuals also have the right to an independent review of any denial of access in accordance with Public Law 99-319 (Protection and Advocacy Act for Mentally Ill Individuals) or the Texas Health and Safety Code, sec.611.0045. (23) The right to be free from mistreatment, abuse, neglect, and exploitation. See TAC Chapter 710, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities), TAC Chapter 710, Subchapter B of this title (relating to Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers), and TAC Chapter 710, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Facilities). (24) The right to the provision of services in a way that does not discriminate on the basis of race, religion, sex, ethnicity, nationality, age, sexual orientation, or disability. (25) The right to protection of personal property from theft or loss. At department facilities, the head of the facility must institute procedures to protect and adequately secure the personal property of persons served, including clothing. Should theft or loss occur, the head of the facility must ensure prompt initiation of a claim against the state for reimbursement through the department's Office of Legal Services and may also seek reimbursement from other sources. Community centers and psychiatric hospitals should develop and post procedures regarding protection and security of personal property of persons served. (26) The right not to be secluded or have physical restraint applied to the individual unless it has been prescribed by a physician, except in emergency situations. If physical restraint or seclusion is utilized, the reason for the medical order, the length of time restraint or seclusion has been ordered, and the behaviors necessary for the individual to be removed from restraint or seclusion shall be explained to the individual, and the restraint or seclusion shall be discontinued as soon as possible. Department facilities and community centers should reference Chapter 405, Subchapter F (relating to Restraint and Seclusion in Mental Health Facilities) for more information regarding this right. (27) The right to fair compensation for labor performed for the department facility, community center, or psychiatric hospital in accordance with the Fair Labor Standards Act. Persons receiving services at department facilities and community centers have the right to be informed of the availability of employment opportunities at the department facility or in the community which may lead to competitive employment, as outlined in the Texas Health and Safety Code, sec.533.008 (sec.2.17A of the Texas Mental Health and Mental Retardation Act). (28) The right to be free from intrusive searches of person or possessions unless justified by clinical necessity, ordered by a physician, and witnessed. Any searches involving removal of any item of clothing shall be witnessed by an individual of the same sex as the person being searched and shall be conducted in a private area. Only physicians will perform body orifice searches. (29) The right to be transported to, from, and between department facilities, community centers, and psychiatric hospitals in a way that protects the dignity and safety of the individual. This includes: (A) the right of females to be transported by a female attendant unless the individual is accompanied by her father, husband, adult brother, or adult son; and (B) the right of all individuals not to be transported in a marked police or sheriff's car or accompanied by a uniformed officer unless other means are not available. (30) The right to initiate a complaint. At department facilities and community centers, this includes the right to be informed of how to contact the facility or center rights protection officer, the facility or center public responsibility committee, and the Office of Consumer Services and Rights Protection in Central Office (toll free telephone number 1-800-252-8154) . At psychiatric hospitals, this includes the right to be informed of how to contact the Health Facility Licensure and Certification Division of the Texas Department of Health (toll free number 1-800-228-1570). (31) The right of any individual to make a complaint regarding denial of rights without any form of retaliation. (32) The right to have these rights and any additional rights explained aloud in a way the person served can understand within 24 hours of admission to services (refer to sec.404.162 of this title, concerning Communication of Rights to Individuals Receiving Mental Health Services) and upon request. Persons admitted voluntarily have the right to have these rights and any additional rights explained aloud in a way the person served can understand prior to admission to services and upon request. sec.404.155. Rights of Persons Receiving Residential Mental Health Services. (a) Personal Rights. (1) The following personal rights shall be provided to all persons receiving residential mental health services. (A) The right to communicate with persons outside the department facility, community center, or psychiatric hospital, in keeping with the general rules of the facility, including: (i) receiving visitors at reasonable times and places, allowing for as much privacy as possible; (ii) making phone calls at reasonable times, allowing for as much privacy as possible; and (iii) communicating by uncensored and sealed mail with others, except in the following situations. (I) When there is reason to suspect that the mail contains items such as illicit drugs or weapons which may present imminent risk of harm to the individual or others, the treating physician may authorize observing the opening of the mail by writing a specific order into the individual's chart explaining the potential harm, the reason for suspicion, and what mail is to be opened. The mail may then be opened by the individual in the presence of two members of the individual's treatment team. After inspecting the mail and removing any items which might present imminent risk of harm to the individual or others, the mail shall be given to the individual; those observing the opening of the mail may not read it. (II) If the individual is unable to open personal mail because of a physical limitation, a staff member may assist if documentation of the need for assistance is provided in the individual's record and if the individual requests or agrees to such assistance. An order authorizing this assistance must be signed by the treating physician and must be reviewed every seven days, except in the case of an individual with a chronic physical limitation, when the order may remain in effect until there is an improvement in the individual's condition. Other orders may be renewed as long as the condition exists. Any cash or articles received shall be recorded in the individual's record and placed in appropriate safekeeping. Staff members may offer to read mail to individuals unable to read because of illiteracy, blindness, or other reason, but staff members may not read the mail if the individual declines the offer. (III) Employees may observe the opening of packages received by individuals deemed not capable of protecting personal property. An order authorizing this limitation must be signed by the treating physician and must be reviewed every seven days, except in the case of an individual with a chronic physical limitation, when the order may remain in effect until there is an improvement in the individual's condition. Other orders may be renewed as long as the condition exists. Any cash or articles received shall be recorded in the individual's record and placed in appropriate safekeeping accessible to the individual. (B) The right to keep and use personal possessions. This includes the right to wear one's own clothing and religious or other symbolic items. This right may be limited only if the use of the possession is determined by the treatment team to present imminent risk of harm, to present a security risk, or to prevent the individual from participating in the treatment plan. This includes the right to be free from searches of belongings except those searches based on reasonable belief that failure to search may present imminent risk of harm to the individual or others. A clinical justification must exist and be documented in the individual's record if access to or the use of any personal possession is limited or if a search of the individual's belongings is conducted. (C) The right to have an opportunity for physical exercise and for going outdoors with or without supervision at least daily. A physician's order limiting this right must be reviewed and renewed, if necessary, at intervals no longer than every three days and the findings of the review must be documented in the individual's record. (D) The right to have grounds privileges, with or without supervision, at frequent and regular intervals. (E) The right to have opportunities for suitable interactions with individuals of the opposite sex, with or without supervision, as appropriate for the individual. (2) For persons receiving inpatient services these rights may be limited by the treating physician only to the extent that the restriction is necessary to the individual's welfare or to protect another person. If a restriction is imposed, the treating physician shall document the reasons for the restriction and the duration of the restriction in the individual's record. Unless otherwise specified, the written order must be reviewed at least every seven days, and if renewed, it must be renewed at least every seven days in writing. The treatment team should consider strategies to help the individual regain or resume the practice of the right. (A) The treating physician shall inform the individual and, if appropriate, the individual's parent, managing conservator, or guardian of the clinical reasons for the restriction and its duration. (B) The right to communicate with legal counsel, the department, the courts, or the state attorney general may not be restricted. (3) Except for the general rules of the program, there is no provision for limiting these rights for persons voluntarily admitted to a residential program other than an inpatient unit. (b) Additional rights. In addition to the rights outlined in subsection (a) of this section persons receiving residential mental health services shall also have the following rights. (1) The right to have unrestricted visits from attorneys, internal advocates, representatives of Advocacy, Inc. with the consent of the person served, private physicians, or other mental health professionals at reasonable times and places. At department facilities, this right shall also include unrestricted visits from public responsibility committee members at reasonable times and places. (2) The right to be informed in writing and by any other means necessary for communication, at the time of admission to and discharge from inpatient services and upon request, of the existence and purpose of the protection and advocacy system in this state under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986 (Public Law 99-319). The notice must include the protection and advocacy system's telephone number and address. In Texas, the system is called Advocacy, Inc. (3) The right to wear suitable clothing which is neat, clean, and well fitting. At department facilities and community centers, clothing will be obtained and provided for individuals not having such clothing. (4) The right to religious freedom. No person shall be forced to attend or engage in any religious activity. (5) The right to a timely consideration of a request for transfer to another room if another person in the room is unreasonably disturbing the individual, with the right to be informed of any reasons for any denial of such a request. (6) The right to receive appropriate treatment of any physical ailments essential to the treatment of a mental disorder and for a physical disorder arising in the course of an individual's inpatient psychiatric care. The manner in which these physical disorders are treated is the decision of the physician, consistent with good professional judgment. If the physician determines the procedures required for treatment to be elective rather than essential, the individual has the right to consult with a provider outside the facility for treatment at the individual's own expense. (7) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or psychiatric hospital notify a person chosen by the individual of the admission if the individual grants permission. Documentation of the individual's granting or denial of that permission must be entered into the individual's clinical record. If such notification is refused upon admission, the individual served shall be reinformed of this right as the individual's condition changes. (8) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or psychiatric hospital notify the individual's family prior to discharge or release if the individual grants permission. Documentation of the individual's granting or denial of that permission must be entered into the individual's clinical record. (9) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or psychiatric hospital provide information about the right to make health care decisions and execute advance directives as allowed by state law. (10) The right to information, in the individual's primary language, if possible, about any prescription medications ordered by the treating physician. This information shall be made available no later than May 1, 1994, and shall, at minimum, identify the major types of prescription medications; specify the conditions for which the medications are prescribed; identify the risks, side effects, and benefits associated with each type of medication; and include sources of detailed information about each particular medication. This right extends to the individual's family on request unless prohibited by state or federal confidentiality laws. (11) The right to receive, within four hours of making a written request, a list of the medications prescribed for administration to the individual while the individual is in the department facility, community center, or psychiatric hospital. The list must include the name, dosage, and administration schedule of each medication and the name of the physician who prescribed each medication. This right extends to a person designated by the individual and to the individual's legal guardain or managing conservator, if applicable. If sufficient time to prepare the list before discharge is not available, the list may be mailed within 24 hours after discharge to the individual or another appropriate, designated party. (12) The right to be reviewed periodically to determine the need for continued inpatient treatment. sec.404.156. Additional Rights of Persons Receiving Residential Mental Health Services at Department Facilities. In addition to the rights listed in sec.404.155 of this title (relating to Rights of Persons Receiving Residential Mental Health Services), persons receiving residential mental health services at department facilities have the following rights. (1) The right to be advised of the availability of trust fund accounts and other safekeeping for funds and articles of value. This right shall extend to the family of the person receiving services, who shall be informed of the existence of the trust fund as a means of protecting personal funds for the person served, and who shall be advised to send all monies, either checks or cash, to the cashier, and not to the individual or ward employees. Families shall be informed that the department facility is not responsible for funds mailed directly to the person served. The method of advising persons served and their families of this right is to be determined by each department facility. (2) The right of each individual admitted to an inpatient program of a department facility to have the state pay the cost of transportation home upon discharge or furlough unless the individual or someone responsible for the individual is able to do so. (3) The right of each individual admitted to an inpatient program of a department facility other than for substance abuse to be informed in writing at admission and upon discharge of the existence of the court monitor of the RAJ v.
                    Jones settlement and to be informed of how to contact the monitor's office, the plaintiff's counsel, and organizations which provide free legal assistance. sec.404.157. Rights of Persons Voluntarily Admitted to Inpatient Services. (a) All persons voluntarily admitted to inpatient services for treatment of mental illness or chemical dependency or the person who requested admission on the individual's behalf have the right to request discharge. Any such person expressing a request for release shall be given an explanation of the process for requesting release and afforded the opportunity to request release in writing. (1) When a written request for release is presented to any direct care staff of the department facility, community center, or psychiatric hospital, it should be signed, dated and timed by the individual or a person legally responsible for the individual. (2) If an individual informs an employee of or person associated with the department facility, community center, or psychiatric hospital of the individual's desire to leave, the employee or person shall, as soon as possible, assist the individual in creating the written request and present it to the individual to sign, date, and time. Without regard to whether the individual agrees to sign paperwork requesting discharge from services, the request will be documented and processed by staff. The refusal or inability of the individual to sign the request for discharge will be documented on the unsigned written request. (3) All written or prepared requests for discharge will be timed, dated, and signed by two staff, who shall provide information to the individual that pursuant to law, during the ensuing period of up to 24 hours, the individual will be observed and evaluated to determine the clinical appropriateness of seeking an involuntary commitment to services. The form and format for requesting release and the information to be provided may be prescribed by the department. (b) All persons voluntarily admitted to inpatient services for treatment of mental illness or chemical dependency have the right to be discharged within four hours of a request for release unless the individual's treating physician (or another physician if the treating physician is not available) determines that there is cause to believe that the individual might meet the criteria for court-ordered mental health services or emergency detention. (1) Each such person detained beyond four hours has the right to be examined in person by a physician and assessed for discharge readiness within 24 hours of the filing of a request for release, with results of the assessment and recommendation resulting documented in the medical record and disclosed to the individual. All such persons have the right not to be detained beyond 24-hours unless: (A) the person who filed the request for release files a written withdrawal of the request or asks a staff member to withdraw the request (the staff member must put the request in writing); (B) the person served, in the physician's clinical judgment, meets the criteria for involuntary commitment outlined in the Texas Health and Safety Code, sec.573.022, and an application for court-ordered mental health services, chemical-dependency services or emergency detention will be filed not later than 4:00 p.m. on the next succeeding business day after the date on which the examination occurs and the individual is detained under the provisions of the relevant statute; or (C) the person receiving inpatient treatment for chemical dependency is a minor admitted with the consent of the parent, guardian, or conservator, and the individual who gave that consent objects in writing to the release of the minor after consultation with personnel of the department facility, community center, or psychiatric hospital. (2) If extremely hazardous weather conditions exist or a disaster occurs, the physician may request the judge of a court that has jurisdiction to extend the period under which the patient may be detained. The judge or a magistrate appointed by the judge may, by written order made each day, extend the period during which the patient may be detained until 4:00 p.m. on the first succeeding business day. (c) Each of these persons has the right not to have an application for court- ordered mental health or chemical dependency services filed while a voluntary patient unless, in the opinion of the head of the department facility, community center, or psychiatric hospital, the voluntary patient meets the criteria for court-ordered services as outlined in the Texas Health and Safety Code, sec.573.022 and either: (1) is absent without authorization; (2) is unable to consent to appropriate and necessary psychiatric or chemical dependency treatment; or (3) refuses to consent to necessary and appropriate treatment recommended by the physician responsible for the individual's treatment and the physician completes a certificate of medical examination for medical illness that, in addition to the information required by the Texas Health and Safety Code, sec.574.011, includes the opinion of the physician that: (A) there is no reasonable alternative to the treatment recommended by the physician; and (B) the individual will not benefit from continued inpatient care without the recommended treatment. (d) Each of these persons has the right to be informed by the physician of the intent to file an application for court-ordered mental health services based on the criteria outlined in subsection (c) of this section. (e) Each of these person has the right to be free from threatening or coercive representations of actions that will result if the individual requests to leave a department facility, community center, or psychiatric hospital against medical advice, including representations that: (1) the individual will be subject to an involuntary commitment proceeding or subsequent emergency detention unless that representation is made by a physician or on the written instruction of a physician who has evaluated the individual within 48 hours of the representation; (2) the individual's insurance company will refuse to pay all or any portion of the medical expenses previously incurred; or (3) the person will be reported to an enforcement or regulatory agency merely because the person refuses to follow a treatment recommendation. sec.404.158. Rights of Persons Apprehended for Emergency Detention for Inpatient Mental Health Services (other than for Chemical Dependency).
                      The rights of each person apprehended for emergency detention for inpatient mental health services at a department facility, community center, or psychiatric hospital are granted under the relevant sections of the Texas Mental Health Code (Texas Civil Statutes, Article 5547-1 et seq). (1) Each person apprehended or detained, but not yet admitted, has the following rights. (A) The right to be advised of the location of detention, the reasons for detention, and that detention could result in a longer period of involuntary commitment. (B) The right to contact an attorney of the person's own choosing with opportunities to contact that attorney. (C) The right to be transferred back to the location of apprehension, or other suitable place, if not admitted for emergency detention, unless the person is arrested or objects to the return. (D) The right to be released if the head of the department facility, community center, or psychiatric hospital determines that any one of the criteria for emergency detention no longer applies. (E) The right to be informed that anything the person says to the personnel of the department facility, community center, or psychiatric hospital may be used in the proceeding for further detention. (F) The right to a preliminary examination by a physician conducted immediately upon arrival at the department facility, community center, or psychiatric hospital following apprehension to determine whether the person meets the criteria for admission for emergency detention. (2) If the person is accepted for treatment on an emergency detention, the personnel of the department facility, community center, or psychiatric hospital shall immediately advise the person of the following rights: (A) The right not to be detained for more than 24 hours after the hour of initial detention unless an order for further detention is obtained, except that if the 24-hour period ends on a Saturday or Sunday or a legal holiday or before 4:00 p.m. on the first business day succeeding the Saturday, Sunday, or legal holiday, the period of detention shall end no later than 4:00 p.m. of the first succeeding business day. (B) The right to be released if the head of the department facility, community center, or psychiatric hospital determines that any one of the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573.022, no longer applies. (C) The right to be returned to the location of apprehension, place of residence, or other suitable place if released from emergency detention, unless the person is arrested or objects to the return. (D) The right to be informed that if a petition for court-ordered treatment is filed, the person is entitled to a judicial probable cause hearing no later than the 72nd hour after the hour of which detention begins under an order of protective custody. (E) The right to have an attorney appointed if the person does not have an attorney when application for court-ordered services is filed. (F) The right to communicate with the attorney at any reasonable time and to have assistance in contacting the attorney. (G) The right to present evidence and to cross-examine witnesses who testify on behalf of the petitioner at a hearing. sec.404.159. Rights of Persons Apprehended for Emergency Detention for Inpatient Chemical Dependency Services. The rights of each person apprehended for emergency detention for inpatient chemical dependency services at a department facility, community center, or psychiatric hospital are granted under the relevant sections of the Texas Alcohol and Drug Abuse Services Act (Texas Civil Statutes, Article 5561c-2). (1) Each person apprehended or detained, but not yet admitted, for emergency detention has the following rights: (A) The right to be advised of the location of detention, the reasons for detention, and that detention could result in a longer period of involuntary commitment. (B) The right to contact an attorney of the person's own choosing with opportunities to contact that attorney. (C) The right to be transported back to the location of apprehension, or other suitable place, if not admitted for emergency detention, unless the person is arrested or objects to the return. (D) The right to be released if the head of the department facility, community center, or psychiatric hospital determines that any one of the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573.022, no longer applies. (E) The right to be informed that anything the person says to the personnel of the department facility, community center, or psychiatric hospital may be used in proceedings for further detention. (F) The right to have a preliminary examination by a physician conducted immediately upon arrival at the department facility, community center, or psychiatric hospital following apprehension to determine whether the person meets the criteria for admission for emergency detention. (2) If a person is accepted for treatment on an emergency detention, the personnel of the department facility, community center, or psychiatric hospital shall immediately advise the person of the following rights. (A) The right not to be detained for more than 24 hours after the hour of initial detention unless an order for further detention is obtained, except that if the 24-hour period ends on a Saturday or a Sunday or legal holiday or before 4:00 p.m. on the first business day succeeding the Saturday, Sunday, or legal holiday, the period of detention shall end no later than 4:00 p.m. of the first succeeding business day. (B) The right to be released if the head of the department facility, community center, or psychiatric hospital determines that the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573.022 no longer applies. (C) The right to be transferred back to the location of apprehension, or other suitable place, if released from emergency detention, unless the person is arrested or objects to the return. (D) The right to be informed that no later than the 24th hour after the hour of initial detention, the head of the department facility, community center, or psychiatric hospital may file a petition for court-ordered treatment. (E) The right to be informed that if a petition for court-ordered treatment is filed, the person is entitled to a judicial probable cause hearing no later than the 72nd hour after the hour on which detention begins under an order of protective custody to determine whether the person should remain detained in the department facility, community center, or psychiatric hospital. (F) The right to have an attorney appointed if the person does not have an attorney, when application for court- ordered services is filed. (G) The right to communicate with the attorney at any reasonable time and to have assistance in contacting the attorney. (H) The right to be informed that anything the person says to the personnel of the department facility, community center, or psychiatric hospital may be used in making a determination relating to detention, may result in the filing of a petition for court-ordered treatment, and may be used at a court hearing. (I) The right to present evidence and to cross-examine witnesses who testify on behalf of the petitioner at a hearing. (J) The right to refuse medication unless there is an imminent likelihood of serious physical injury to the person or others if the medication is refused. (K) The right to be informed that beginning on the 24th hour before a hearing for court-ordered treatment, the person may refuse to take medication unless the medication is necessary to save the person's life. (L) The right to request that a hearing be held in the county of which the person is a resident, if within the state. sec.404.160. Special Rights of Minors Receiving Inpatient Mental Health Services. In addition to the applicable rights addressed in sec.404.154-404.159 of this undesignated head (relating to Rights of Persons Receiving Mental Health Services), minors admitted to inpatient mental health services shall have the following rights: (1) The right to treatment by persons who ave specialized education and training in the emotional, mental health, and chemical dependency problems and treatment of minors. (2) The right to receive inpatient services in an area separated from adult patients. (3) The right to regular communication with the individual's family. Other than in keeping with the general rules of the facility, this right may only be limited when the limitation is necessary to protect the individual's welfare in keeping with procedures outlined in sec.404. 154(a)(2) of this title, (relating to Rights of All Persons Receiving Mental Health Services). sec.404.161. Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Psychiatric Hospitals Operated by Community Centers. (a) The department will publish a rights handbook which will contain interpretations written in simple and non-technical language of the various rights afforded individuals receiving mental health services, an explanation of the circumstances under which those rights may be limited, and an explanation of the appeals process. This handbook will be revised by the Office of Consumer Services and Rights Protection as necessary. (b) Only the handbook published by the department will be distributed to individuals admitted to department facilities, their community programs, and psychiatric hospitals operated by community centers. Community centers may distribute the handbook published by the department or may choose to publish their own version. Handbooks published by community centers must contain all rights outlined in the handbook published by the department and must be approved by the Office of Consumer Services and Rights Protection prior to their distribution. (c) Each handbook distributed must include the toll free number of the Office of Consumer Services and Rights Protection in Central Office (1-800-252-8154), the toll free number of Advocacy, Inc. (1-800-223-4206), the name, telephone number, and mailing address of the rights protection officer, and the mailing address of the public responsibility committee for the facility or community center which distributes it. (d) Immediately upon admission into services, each individual and the parent or conservator of a minor and the legal guardian of the person, when applicable, must be given the appropriate rights handbook. All handbooks must be printed in English and Spanish, and must be made available in any other language used by a significant percentage of the service area's population. Copies of the rights handbook must be displayed prominently at all times in all areas frequented by persons receiving services (e.g., dayrooms, recreational rooms, waiting rooms, lobby areas). A sufficient number of copies will be kept on hand in each of these areas in order that a copy may be made readily available to anyone requesting one. The head of each department facility and community center shall appoint an individual responsible for ensuring that these requirements are met. (e) Nothing in this section shall preclude the distribution of additional brochures prepared by advocacy organizations. sec.404.162. Patient's Bill of Rights, Teen's Bill of Rights, and Children's Bill of Rights for Individuals Receiving Mental Health Services at Psychiatric Hospitals Not Operated by a Community Center. (a) The department will publish a Patient's Bill of Rights, which is adopted by reference as Exhibit A of this subchapter, with copies available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, which will contain interpretations written in simple and non-technical language of the various rights afforded individuals receiving mental health services at psychiatric hospitals, an explanation of the circumstances under which those rights may be limited, and organizations individuals may contact in the event of rights violations. The Patient's Bill of Rights will be revised as necessary. (b) The department will publish a "Teen's Bill of Rights" and a Children's Bill of Rights ("The Little Dinosaur Named Wilbur," with supplementary material) which are adopted by reference as Exhibits B and C of this subchapter, respectively, with copies available from the Texas Department of Mental Health and Mental Retardation, P. O. Box 12668, Austin, Texas 78711-2668. The Teen's Bill of Rights and the Children's Bill of Rights will contain interpretations written in simple and non-technical language of the rights afforded minors receiving mental health services at psychiatric hospitals, an explanation of the circumstances under which those rights may be limited, and organizations individuals may contact in the event of rights violations. The Teen's Bill of Rights and the Children's Bill of Rights will be revised as necessary. (c) Only the Patient's Bill of Rights, the Teen's Bill of Rights, and the Children's Bill of Rights published by the department will be distributed to individuals admitted to psychiatric hospitals which are not operated by community centers. At psychiatric hospitals operated by community centers, individuals admitted for services will receive the rights handbook as outlined in sec.404.160 of this title (relating to Special Rights of Minors Receiving Impatient Mental Health Services). (d) The Patient's Bill of Rights, the Teen's Bill of Rights, and the Children's Bill of Rights must be printed in English and Spanish, and must be made available in other languages of primary use by individuals admitted to each psychiatric hospital. (e) Immediately upon admission into services, each individual must be given the Patient's Bill of Rights, Teen's Bill of Rights, and/or Children's Bill of Rights. A copy must also be given to the individual's parent or conservator of a minor and the legal guardian of the person, when applicable, and to any other person requested by the individual. (f) Copies of the Patient's Bill of Rights, Teen's Bill of Rights, and/or Children's Bill of Rights must be displayed prominently at all times in all areas frequented by persons receiving services (e.g., dayrooms, recreational rooms, waiting rooms, lobby areas). A sufficient number of copies will be kept on hand in each of these areas in order that a copy may be made readily available to anyone requesting one. (g) Nothing in this section shall preclude the distribution of additional brochures prepared by advocacy organizations. sec.404.163. Communication of Rights to Individuals Receiving Mental Health Services. (a) In addition to receiving a rights handbook, each newly admitted individual, the parent or conservator of a minor, and the guardian of the person, shall be informed orally of all rights in his or her primary language using plain and simple terms within 24 hours of admission into services. Persons admitted for voluntary services shall be given this information prior to admission to services. The notification will also include an explanation of the circumstances under which those rights may be limited, and an explanation of how a complaint may be filed. This notification also must occur at least annually and upon any changes to this information. The method used to communicate the information should be designed for effective communication, tailored to meet each person's ability to comprehend, and responsive to any visual or hearing impairment. (b) Oral communication of rights shall be documented on a form bearing the date and signatures of the individual and/or the parent, conservator, or guardian, and the staff member who explained the rights. The form should be filed in the individual's chart. Psychiatric hospitals should use the form provided on the Patient's Bill of Rights. Department facilities and community centers should use the Receipt of Information Record (MHRS 9-1 form). (c) When the individual receiving services is unable or unwilling to sign the document which confirms that rights have been orally communicated, a brief explanation of the reason should be entered onto that document along with the signatures of the person who explained the rights and a third-party witness. (d) If the individual does not appear to understand the rights explanation, staff will attempt to provide another explanation periodically until understanding is reached or until discharge. The necessity for repeating the rights communication process will be documented, signed, and dated by staff. sec.404.164. Rights Protection Officer at Department Facilities and Community Centers. (a) The head of each department facility and each community center shall appoint a rights protection officer for the facility or center. (b) The name, telephone number, and mailing address of the rights protection officer must be prominently posted in every program or residential area frequented by service recipients, including community outreach or contract programs. Individuals desiring to contact the rights protection officer must be allowed access to facility or center telephones to do so. (c) Duties required of the rights protection officer are specified at the discretion of the head of the facility or center, but must include the following: (1) receiving complaints of violations of rights, allegations of inadequate provision of services, and requests for advocacy from service recipients, their families, their friends, service providers, other facility or center personnel, other agencies, the general public, and the Office of Consumer Services and Rights Protection; (2) thoroughly investigating each such complaint received; (3) representing the expressed desires of the individuals served and advocating for the resolution of their grievances; (4) reporting the results of investigations and advocacy to service recipients and the complainants, consistent with the protection of the service recipients' right to have any identifying information remain confidential; (5) ensuring that the rights of individuals receiving services have been thoroughly explained to facility and center personnel through periodic training. The rights protection officer may provide the training directly or by consulting with facility or center training personnel; and (6) reviewing all policies, procedures, behavior therapy programs, and rules which affect the rights of persons receiving services. sec.404.165. Staff Training in Rights of Persons Receiving Mental Health Services.
                        This subchapter shall be thoroughly and periodically explained to all employees of each department facility, community center, and psychiatric hospital as follows. (1) All new employees shall receive the instruction on the content of this subchapter during their orientation training and prior to beginning work. (2) Within 60 days after the effective date of this subchapter, all current employees shall be briefed on its contents by the head of the department facility, community center, or psychiatric hospital or designee. (3) All supervisory personnel shall have a continuing responsibility to keep employees informed about rules governing rights of persons receiving mental health services and shall ensure that each employee receives training on the subject not less than once each calendar year. At department facilities and community centers, such training shall be reported to the department facility or community center's office for staff development. Psychiatric hospitals shall develop an appropriate means for maintaining training records. (4) A record shall be kept by the psychiatric hospital or the department facility or community center's office for staff development on each employee receiving orientation, annual training, or additional instruction in compliance with this section, including the date training was provided and the name of the individual conducting the training. sec.404.166. References. Reference is made to the following Texas laws, federal laws, departmental rules, and other standards: (1) Texas Department of Mental Health and Mental Retardation (Texas Health and Safety Code, Chapters 531-535); (2) Texas Mental Health Code (Texas Health and Safety Code, sec.sec.572.003, 573.022, 573.025, 576.001-.024, 611.002) ; (3) Treatment of Chemically Dependent Persons (Texas Health and Safety Code, Chapters 461 and 462); (4) 42 Code of Federal Regulations, Part 2; (5) Public Law 99-319, The Protection and Advocacy Act for Mentally Ill Individuals (42 United States Code, sec.10802, et seq); (6) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); (7) Chapter 710, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities); (8) Chapter 710, Subchapter B of this title (relating to Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers); (9) Chapter 710, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Hospitals); (10) Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion in TDMHMR Facilities); (11) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment With Psychoactive Medication); (12) Fair Labor Standards Act; (13) Joint Commission on the Accreditation of Healthcare Organizations, Accreditation Manual for Hospitals (1991); (14) TDMHMR Mental Health Community Services Standards (1991), Chapter 3; and (15) RAJ v.
                          Jones settlement agreement. sec.404.167. Distribution. (a) This subchapter shall be distributed to members of the Texas Board of Mental Health and Mental Retardation, the medical director, deputy commissioners, associate deputy commissioners, assistant deputy commissioners, and directors of Central Office; superintendents and directors of all TXMHMR mental health facilities; and executive directors and chairpersons of the boards of all Texas community mental health and mental retardation centers; chief executive officers of all psychiatric hospitals in Texas, Advocacy Inc.; the Texas Mental Health Consumers; the Texas Alliance for the Mentally Ill; the Mental Health Association in Texas; and other interested advocacy organizations. (b) The superintendent or director of each facility and the executive director of each community center shall provide a copy of this subchapter to the facility or center rights officer; the chair of the facility's or center's public responsibility committee; all appropriate staff; each contract agency which provides direct services; and any other person who requests a copy. Issued in Austin, Texas, on September 10, 1993. TRD-9328732 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 206-4516 Chapter 405. Client (Patient) Care Subchapter E. Electroconvulsive Therapy 25 TAC sec.sec.405.101-405.104, 405.107-405.110, 405.112-405.116 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis amendments to sec. s405.101-405.104, 405.107, 405. 109- 405.110, 405.112, and 405.113 to Chapter 405, Subchapter E, concerning electroconvulsive therapy (ECT), and new sec.sec.405.108, 405.114-405.116. The emergency amendments, new sections, and repeals of sec.405.108 and s405.114 are published contemporaneously in this issue of Texas Register. All emergency rule actions are proposed for public comment in this issue of the Texas Register. The emergency action is necessary to implement the provisions of Senate Bill 205 of the 73rd Texas Legislature, which requires the department to promulgate rules concerning requirements for informed consent, reporting of ECT, and registration of ECT stimulus apparatus. The new law prohibits the use of ECT in patients under the age of 16 and requires informed consent to be obtained from the patient or the guardian of the person of a patient who has been adjudicated incompetent to manage his or her own personal affairs. The legislation also requires the department monitor the use of ECT by requiring submission of quarterly reports of ECT usage, which it summarizes and reports to the governor and presiding officers of the legislature on an annual basis. The amendments also implement provisions of Senate Bill 210 of the 73rd Legislature, which mandates that standards of care and treatment in private psychiatric facilities not be less restrictive than those in public mental hospitals. Section 405.101, concerning purpose, is amended to expand the purpose of the subchapter consistent with legislation and to add that information available from the Food and Drug Administration is a reference of choice in questions of practice relating to ECT. Section 405.102, concerning application, is amended to expand the application of the subchapter consistent with Senate Bills 205 and 210, i.e., to expand application of the subchapter in full to psychiatric hospitals and psychiatric units of general hospitals, and to indicate that the provisions of the rule that derive from Senate Bill 205 are applicable to all non-federal providers of ECT in Texas without regard to location of services. Section 405.103, concerning definitions, is amended to include new definitions for "chief executive officer," "community mental health and mental retardation center," "electroconvulsive therapy," "insulin coma treatment," "prefrontal sonic sound treatment." "psychosurgery," and "reportable therapies. " The definition of "informed consent" is amended. Definitions for "executive director," "fully qualified child psychiatrist," "medical specialist," and "superintendent" are deleted. Section 405.104, relating to general requirements, is amended to delete reference to specific consent requirements for minors. The section would reflect that ECT is prohibited for minors under the age of 16, and minors 16 and older follow the same consent requirements as adults. Detailed requirements concerning consent requirements are described in new sec.405.108. The section also is amended to include the legal requirement for ECT to be administered by a physician. Language concerning consideration of alternative forms of treatment would be modified. Section 405.107 is amended to require that prior to initiation of a course of ECT, a physician who is not a fully qualified psychiatrist must obtain a consultation with a fully qualified psychiatrist. The limitation on the number of ECT treatments is expressed in terms of a time interval of eight weeks rather than in terms of a series. Section 405.109 is amended to delete special requirements for the administration of ECT to minors under 16, consistent with the prohibition set out in Senate Bill 205. Additionally, for providers that are not state facilities, the section is revised to require written concurrence from a fully qualified psychiatrist prior to administration of ECT in excess of the standard limitation. The title of sec.405.110 is revised to clarify that the requirements of the section relate specifically to personnel and equipment. It also would be clarified that a licensed physician need not be a fully qualified psychiatrist to administer ECT and that a physician in training who administers ECT must be licensed. Language is revised to extend the application of the section to providers that are not state facilities and to acknowledge acceptable differences in physical settings for administration of ECT. A requirement is added for consultation by the administering physician with two other physicians, one of whom is a fully qualified psychiatrist, if general anesthesia is contraindicated. It also is specified that anesthesia can be administered by a licensed anesthesiologist, licensed physician credentialed and privileged in a anesthesiology for ECT, or a nurse anesthetist. Language would be revised to indicate that at least one person present must be certified in advanced cardiorespiratory life support (ACLS). Section 405.112 is amended to distinguish reporting requirements for various providers and includes new reporting requirements concerning ECT usage. Section 405.113 is amended to clarify the intent. New sec.405.108 describes requirements for informed consent to ECT set out in Senate Bill 205 of the 73rd Texas Legislature. New sec.405.114 describes requirements for providers to register ECT stimulus apparatus with the department initially and annually, and for the department to periodically report this information to the governor and the presiding officers of the legislature, also required by Senate Bill 205. New sec.405.115 outlines enforcement of the subchapter and penalties for violations. New sec.405.116 states the intended distribution of the subchapter. A public hearing to accept testimony concerning the proposal will be held at 3:00 on September 28, 1993, in the auditorium of the central office of TXMHMR, at 909 West 45th Street, Austin. Individuals requiring an interpreter for the hearing impaired should contact Linda Logan, Director, Policy Development, at least 72 hours prior to the hearing. The amendments and new sections are adopted on an emergency basis under under Texas Civil Statutes, Article 6252-13a, s5(d); under the Health and Safety Code, Title 7, sec.532.015(a), which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers; under the provisions of Senate Bill 205 of the 73rd Texas Legislature, regular session, which requires rulemaking specific to electroconvulsive therapy; and under the provisions of Senate Bill 210 of the 73rd Texas Legislature, which requires treatment standards in private psychiatric hospitals to not be less restrictive than that in public mental hospitals. sec.405.101. Purpose. The purpose of this subchapter is: (1) to establish uniform procedures for informed consent to ECT
                            [to establish standards and criteria for the indications, contraindications, and appropriate limits for the therapeutic utilization of electroconvulsive therapy (ECT)]; (2) to establish statewide reporting requirements for the use of ECT and other procedures; (3) to establish statewide registration requirements for ECT equipment; (4) to prohibit the use of ECT in persons under 16 years of age; (5) to prohibit the administration of ECT by any person not licensed to practice medicine in Texas; and (6) to provide explicit safeguards for patients in all facilities of the Texas Department of Mental Health and Mental Retardation, community mental health and mental retardation centers, private inpatient psychiatric hospitals licensed by the Texas Department of Health, and psychiatric units of general hospitals licensed by the Texas Department of Health, by: (A) establishing appropriate limits for the therapeutic utilization of electroconvulsive therapy (ECT); (B) establishing current guidelines of the American Psychiatric Association and the Food and Drug Administration as the references of choice in questions of practice related to ECT, except to the extent that they conflict with the provisions of the Health and Safety Code, Title 7, Subtitle C, Chapter 578; and (C) prohibiting the use of chemical or gaseous agents for convulsive therapy except as a research procedure conducted in accordance with Subchapter Q of this chapter (relating to Departmental Procedures for the Protection of Human Subjects Involved in Research). [(2) to establish medical evaluation procedures and consent requirements for ECT; [(3) to establish current guidelines of the American Psychiatric Association as the reference of choice in questions of practice related to ECT; and [(4) to prohibit the use of chemical or gaseous agents for convulsive therapy except as a research procedure.] sec.405.102. Application. (a) The provisions of this subchapter apply to all organizations and individuals providing electroconvulsive therapy on an inpatient or outpatient basis, in or on a contractual basis with
                              : (1) all facilities of the Texas Department of Mental Health and Mental Retardation;
                                [, to] (2) community mental health and mental retardation centers [, and to other organizations and individuals with whom they contract for the provision of electroconvulsive therapy services]; (3) private inpatient psychiatric hospitals licensed by the Texas Department of Health; and (4) psychiatric units of general hospitals licensed by the Texas Department of Health. (b) Pursuant to the Health and Safety Code, Title 7, Subtitle C, Chapter 578, the following provisions of this subchapter apply to all organizations and individuals administering ECT in Texas: (1) Section 405.104 of this title (relating to General Reguirements); (2) Section 405.108 of this title (relating to Informed Consent to ECT); (3) Section 405.112(b) of this title (relating to Report of Electroconvulsive Therapy (ECT)); (4) Section 405.114 of this title (relating to Registration of ECT Stimulus Apparatus); and (5) Section 405.115 of this title (relating to Enforcement and Penalties. sec.405.103. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Chief executive officer-The superintendent or director of a state hospital, state school, or state center, the executive director of a community mental health and mental retardation center, or the person responsible for management and operation of a hospital or other healthcare facility or entity providing ECT. Community mental health and mental retardation center-A community mental health and/or mental retardation center established by the Texas Health and Safety Code, Chapter 534. Electroconvulsive therapy (ECT)-A treatment in which controlled, medically applied electrical current results in a therapeutic seizure, usually attenuated by anesthesia and muscle relaxants.
                                  [A form of somatic treatment for certain psychiatric illness, in which electrical current applied to the scalp results in a seizure, usually (because of anesthesia and muscle relaxants) without outward signs of a convulsion.] [Executive director -The chief executive officer of a community mental health and mental retardation center.] [Fully qualified child psychiatrist-A physician, licensed to practice medicine in Texas, who has completed approved residency training in general psychiatry, and an approved fellowship program in child psychiatry.] Informed consent -The knowing consent of a patient
                                    [an individual] or the guardian of the person of the patient
                                      [his or her legally authorized representative] in keeping with the provisions of sec.405.108 of this title (relating to Informed Consent to ECT),
                                        so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion. If consent is given by the guardian of the person of a patient who has been adjudicated incompetent to manage his or her own personal affairs, then the decision must be based on knowledge of what the patient would desire, if known.
                                          [The basic elements of information necessary to informed consent, as well as discussion of informed consent and ongoing counselling with the patient regarding his or her care, must be provided in simple, nontechnical terms in the person's primary language or mode of communication. The elements of informed consent include: [(A) a fair explanation of the procedures to be followed and their purposes, including identification of any procedures which are experimental; [(B) a discussion of the nature, degree, duration, and probability of significant risks and/or side effects and/or adverse effects, including the probability of significant temporary post-treatment confusion requiring special care, fractures or dislocations of bones, and the possibility of permanent memory dysfunction concerning events prior to, during, and immediately following the treatment; [(C) a description of any benefits reasonably to be expected; [(D) a disclosure of any appropriate alternative procedures that might be advantageous for the subject; [(E) an offer to answer any inquiries concerning the procedures; and [(F) an instruction that the consenting party is free to withdraw consent and to discontinue treatment or series of treatments at any time without prejudice to the care of the individual, including an instruction that consent is for a specified maximum number of treatments (not to exceed 15), and that additional treatments shall require renewed written informed consent.] Insulin coma treatment-The production of a coma for therapeutic purposes through the administration of insulin. [Medical specialist -A physician, licensed to practice medicine in Texas, who is generally recognized by virtue of training or professional certification as having expertise in a given area of medical practice.] Nurse anesthetist -A nurse credentialed by the Board of Nurse Examiners as a nurse anesthetist
                                            [properly trained and credentialed to administer general anesthesia]. "Prefrontal sonic sound treatment"-A treatment, not described or defined in biomedical literature, which is defined in California statutes governing ECT and other treatments as "The direct stimulation and/or destruction of brain cells or brain tissue by ultrasound for therapeutic purposes." Psychosurgery-Surgical intervention to sever fibers connecting one part of the brain with another or to remove or to destroy brain tissue with the intent of modifying or altering severe disturbances of behavior, thought content, or mood. For purposes of this subchapter, the term does not include such surgery for the relief of intractable physical pain or the treatment of neurological disease or abnormality. Reportable therapies -Electroconvulsive therapy, insulin coma treatment, "prefrontal sonic sound treatment," psychosurgery, or any other convulsive or coma-producing therapy to treat mental illness. [Superintendent-The superintendent or the director of the facility.] TXMHMR medical director-The department's medical director [for professional services]. sec.405.104. General 23>Requirements. (a) Only a physician licensed to practice medicine in Texas may administer ECT and a physician may not delegate the act of administering the therapy. A nonphysician who administers ECT is considered to be practicing medicine in violation of the Medical Practice Act, Texas Civil Statutes, Article 4495b.
                                              [The decision to use ECT must be based on a careful assessment of diagnosis, symptomatology, degree of impairment, factors such as suicide risk or danger of exhaustion, and the patient's age and physical status. The patient's prior use of ECT and the nature of any therapeutic response or adverse reaction should also be considered.] (b) No person under the age of 16 shall receive ECT. (c)
                                                [(b)] Prior to receiving ECT, every patient, voluntary or involuntary, [adult or minor,] competent or incompetent, shall be given full explanation of ECT consistent with the definition of ECT
                                                  [specific items cited] in sec.405.103 of this title (relating to Definitions)[,] and [written informed consent] meeting the requirements of sec.405.108 of this title (relating to Informed Consent to ECT).
                                                    [, or documentation concerning why written informed consent was not obtained, must be entered in the patient's permanent record, as follows. [(1) Informed consent by adult patients. No adult patient shall be given ECT unless: [(A) written informed consent has been obtained from the patient; or [(B) written informed consent has been obtained from the legal guardian of the person of the patient, or guardian ad litem. [(2) Informed consent by minor patients. Consent of/for minor patients shall follow the current standards and guidelines of the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO). No minor patient shall be given ECT unless written informed consent has been obtained from the patient and from the patient's parent, managing conservator, or the legal guardian of the person of the patient or guardian ad litem.] (d)
                                                      [(c)] If any patient, without regard to competency, objects to ECT and there is an alternative method of treatment (that is not contraindicated and which has a reasonable potential for success
                                                        [not been demonstrated ineffective]) to which the patient does not object, the alternative method shall be considered and, if mutually acceptable to the patient or the guardian of the person of the patient and the treating physician, shall
                                                          [should] be used. [(d)] It is not to be inferred, however, that ECT should be held as a treatment of "last resort." [Rather, it is, at times, the treatment of choice.] Full documentation of the
                                                            [all] factors considered in arriving at the decision to use ECT, the consent process, the treatment procedures, and patient response to treatment shall be
                                                              [are to be] entered into the patient's permanent medical record. (e) (No change.) sec.405.107. Consultation Required. (a) Before initiating a course of ECT, it shall be the responsibility of the attending physician who is not a fully qualified psychiatrist
                                                                to obtain consultation from a fully qualified psychiatrist, licensed to practice medicine in Texas. (b) [Such fully qualified psychiatrist may be a private practitioner or a staff member of a department facility but shall not have direct responsibility for the care or treatment of the patient. [(c)] The consultant shall render a written report regarding the appropriateness and probable benefits to be obtained by administration of ECT. That report will be incorporated into the patient's permanent medical record. sec.405.108. Informed Consent to ECT. (a) Consent under this section is not valid unless the person giving consent understands the information presented and consents voluntarily and without coercion or undue influence. (b) A person who gives consent may revoke consent for any reason at any time, with revocation effective immediately. (c) Prior to each individual ECT treatment, consent to electroconvulsive therapy must be obtained. Unless the person consents in accordance with this subchapter, ECT may not be administered to: (1) a patient who is 16 years or older and voluntarily receiving services; (2) an involuntary patient who is 16 years or older and who has not been adjudicated incompetent to manage his or her own personal affairs; (3) an involuntary patient who is 16 years or older and who has been adjudicated incompetent to manage his or her own personal affairs, unless: (A) the patient has an appointed guardian of the person of the patient; (B) the guardian of the person consents to treatment in accordance with this section; and (C) the consent of the guardian is based on knowledge of what the patient would desire, if known. (d) Consent shall be documented by the signature of the person giving consent on the form attached to this subchapter as Exhibit A, which shall include a supplemental statement about the individual patient containing the information in the form attached to this subchapter as Exhibit B, including: (1) indications for therapy for the patient; (2) medical evaluation results; (3) contraindications to therapy; and (4) results of psychiatriac and other medical consultation(s) relevant to ECT, (e) The consent form shall be fully completed to explicitly state the following information: (1) the nature and seriousness of the mental condition requiring ECT; (2) the nature of the procedures to be followed and their purposes, including the identification of any procedures which are experimental; (3) the nature, degree, duration, and probability of significant risks and/or side effects and/or adverse effects commonly known by the medical profession, including: (A) memory changes of events prior to, during, and immediately following the treatment; (B) fractures and dislocations of bones; (C) the probability of significant temporary post-treatment confusion requiring special care; and (D) the possibility of permanent memory dysfunction, especially noting the possible degree and duration of memory loss, the possibility of permanent, irrevocable memory loss, and the remote possibility of death; (4) that there is a division of opinion as to the efficacy of the procedure; (5) the benefits reasonably to be expected; (6) the probable degree or duration of improvement or remission expected with or without the procedure; (7) a disclosure of any appropriate alternative procedures that might be advantageous for the patient; (8) an offer to answer any inquiries concerning the procedures; (9) an instruction that the consenting party is free to withdraw consent and to discontinue an individual treatment or a series of treatments at any time without prejudice to the care of the individual; and (10) an instruction that consent is for one individual treatment, and that additional treatments shall require renewed written informed consent. (f) Before a patient receives ECT, the hospital, facility, or physician administering the therapy shall ensure that: (1) the patient and the patient's guardian of the person, if any, receive a copy of the completed consent form, a written supplement containing related information concerning the individual patient, in the patient's primary language, if possible; (2) the consent form and supplement are orally explained to the patient and the patient's guardian of the person, if any, in simple, nontechnical terms in the patient's primary language, if possible, or by means reasonably calculated to communicate with a hearing impaired or visually impaired person, if applicable; (3) the patient or the patient's guardian of the person, as appropriate, signs the consent form, which states that the person has read and understood the consent form and written supplement; and (4) the signed consent form is made a part of the patient's permanent medical record. (g) In cases in which the individual giving consent is the guardian of the person, the requirements of the consent process may be fulfilled through a phone conversation that includes all of the elements that would be discussed in person, witnessed by one individual who is not the physician who will be administering ECT. Whenever possible, a copy of the consent form and written supplement should be mailed or faxed to the individual giving consent, preferably prior to obtaining informed consent. The consent must be obtained for each individual treatment. sec.405.109. Limitations on Use of Electroconvulsive Therapy (ECT): Number ECTs Per Year and Number of ECTs in a Series of Treatments. (a) No more than 24 electroconvulsive therapy (ECT) treatments may be administered to a given patient in any 12-month period, dated from the date of the first treatment except as provided in this subsection. (1) Exceptions to this limitation require, prior to the additional treatments,
                                                                  [, without]: (A) for state facilities,
                                                                    the written approval of the department's medical director, who shall consider the recommendations of an independent, fully qualified psychiatrist who is not affiliated with the department except in a consultative capacity [; except that in the case of a patient under 16 years of age, two such consultations shall be required by independent and fully qualified child psychiatrists, at least one of whom is not affiliated with the department except in a consultative capacity]; or (B) for all other providers, the written concurrence of a fully qualified psychiatrist not involved in the patient's care. (2) All reports of such consultations shall become a part of the patient's permanent medical record. (b) The number of ECTs to be given in eight consecutive weeks
                                                                      [any treatment series] shall ordinarily be limited to 15. In those cases in which it is considered clinically advantageous to exceed these numbers of treatments in any given series, the attending physician shall obtain a second consultative opinion from a fully qualified psychiatrist who is not directly associated with the patient's care. sec.405.110. Personnel and Equipment [To Be Followed in Administration of Electroconvulsive Thereapy (ECT)] 23> [Medical] Procedures. (a) Personnel. ECT may be administered only by a licensed physician
                                                                        [fully qualified psychiatrist trained and] credentialed by the facility providing the treatment to use ECT, or by a licensed
                                                                          physician in training in an approved residency program under the direct supervision of a fully qualified psychiatrist so trained and credentialed. In specific circumstances a licensed physician who is not a fully qualified psychiatrist but who has demonstrated training and experience in the administration of ECT may administer ECT providing authorization has been provided in writing to the chief executive officer
                                                                            [superintendent] by the hospital or facility
                                                                              medical director. Assistants shall include a recovery nurse and an ECT treatment nurse or assistant trained in ECT procedures. (b) (No change.) (c) Recovery area
                                                                                [room]. A recovery area
                                                                                  [room] containing emergency equipment and supplies shall be used, the patients to be therein until adequately recovered
                                                                                    [fully alert] and all vital signs are stable. (d) Anesthesia. (1) General anesthesia shall be administered to all patients as a standard procedure during ECT. In the rare event that general anesthesia is contraindicated, the administering physician shall obtain consultation and written concurrence by two physicians, at least one of whom is a fully qualified psychiatrist. (2) Anesthesia shall be administered only by persons credentialed by the medical staff to do so, and who are: (A) licensed anesthesiologists; (B)
                                                                                      [(A)] licensed physicians
                                                                                        [medical specialists] credentialed and privileged in anesthesiology for ECT; or (C)
                                                                                          [(B)] nurse anesthetists (CRNA).
                                                                                            [; or] (2)
                                                                                              [(C)] At least one person in attendance must [either] be certified in advanced cardiorespiratory life support (ACLS)
                                                                                                [physicians holding current registration or certification in advanced cardiac life support and with demonstrated training or experience in the use of general anesthetic agents with ECT]. [(3) Prior to ECT, all patients will be pre-oxygenated.] sec.405.112. Report of Electroconvulsive Therapy (ECT). (a) Reporting requirements for state facilities and community centers. (1) A report of each individual ECT administered to a patient shall be entered into the patient's medical record and shall include, but not be limited, to the following: (A) diagnosis for which ECT given; (B)
                                                                                                  [(1)] date of treatment; (C)
                                                                                                    [(2)] type of ECT machine used; (D)
                                                                                                      [(3)] duration and strength of electrical stimulation; (E)
                                                                                                        [(4)] all medications administered; and (F)
                                                                                                          [(5)] any complications or adverse effects. (2)
                                                                                                            [(b)] A report of all ECT treatments will be provided at the end of each month to the chief executive officer
                                                                                                              [superintendent or executive director]. The report shall include the following: (A)
                                                                                                                [(1)] name, age, gender
                                                                                                                  [sex], and identification number of patient; (B)
                                                                                                                    [(2)] diagnosis for which ECT given; (C)
                                                                                                                      [(3)] dates and number of treatments given; and (D)
                                                                                                                        [(4)] any complications or adverse effects. (b) Reporting requirements for all providers. (1) On a quarterly basis, the chief executive officer of a mental hospital or other facility that administers ECT, psychosurgery, "prefrontal sonic treatment," or any other convulsive or coma-producing therapy to treat mental illness and any physician who administers ECT on an outpatient basis shall make a written report to the TXMHMR medical director containing the information requested on the form adopted by reference as Exhibit C. The reporting format requires clinical data from before, during, and 30 days after treatment. (A) The facility and/or its medical staff shall require that the treating physician(s) provide complete, accurate, and timely information to the CEO for this purpose. (B) Reports must submitted to be received by the TXMHMR medical director not later than 30 days following the end of calendar quarters (March 31, June 30, September 30, December 31). (2) The report will include, but may not be limited to, the following information for the quarter: (A) the number of persons who received the therapy, including (i) the number of persons receiving voluntary mental health services who consented to the therapy, (ii) the number of involuntary patients who consented to the therapy; and (iii) the number of involuntary patients for whom a guardian of the person consented to the therapy; (B) the age, gender, and race of the persons receiving therapy; (C) the general source of the treatment payment; (D) the number of non-electroconvulsive treatments listed in paragraph (1) of this subsection; (E) the number of electroconvulsive treatments administered for each complete series of treatments, excluding maintenance treatments; (F) the number of maintenance electroconvulsive treatments administered; (G) the number of fractures, reported memory losses, incidents of apnea, and cardiac arrests without death; (H) autopsy findings if death followed within 14 days after the date of the administration of the therapy; and (I) other information that may be required by the department. (c) Reporting requirements for the department. (1) Annually the department shall compile the information reported under subsection (b) of this section by mental hospital, other facility, and private physician administering ECT on an outpatient basis. Private physicians and individual patients shall not be named or otherwise identified. (2) A copy of the report shall be filed with the governor and presiding officer of each house of the legislature. (3) The department shall use this information to analyze, audit, and monitor the use of ECT and other reportable procedures. sec.405.113. Electroconvulsive Theraphy ECT on Outpatient Basis. If ECT is to be given to patients on an outpatient basis, [it must be limited to maintenance therapy only, and] all the provisions of this subchapter apply
                                                                                                                          [the same rules and regulations that govern ECT with inpatients must be followed]. sec.405.114. Registration of ECT Stimulus Apparatus. (a) A person may not administer ECT unless the equipment used to administer the therapy is registered annually with the department. All ECT stimulus apparatus must be registered with the department by the mental hospital or other facility or by the private physician administering ECT on an outpatient basis. (1) The department shall use the information to analyze, audit, and monitor the use of ECT. (2) The department shall file annually a report summarizing the information with the governor and the presiding officers of the legislature. The report shall not name or otherwise identify individual physicians or patients. (b) Within 30 days of the effective date of this subchapter, the applicant must complete and submit the form adopted by reference as Exhibit D, including a nonrefundable application fee of $50.00, for all items of ECT stimulus apparatus which are housed or used at a specific location. (c) Upon receipt of the application and fee, the department may conduct an investigation if it believes the stimulus apparatus in question may be dangerous or faulty. For purposes of investigation, any duly authorized agent of the department may at any time enter upon the premises of any facility in which ECT is administered to inspect the ECT stimulus apparatus or to take other action the department deems necessary to ascertain and assure compliance with state law and this section. Any such duly authorized agent may have access for the purposes of examination and transcription to such records and documents as the department deems relevant to the investigation. (d) The department may deny, suspend, or revoke a registration if it determines that the stimulus apparatus is dangerous or faulty. Such action is the subject of a contested case under the Administrative Procedure and Texas Register Act. Hearings will be conducted in accordance with Chapter 403, Subchapter O of this title, relating to Practice and Procedure with Respect to Administrative Hearings of the Department in Contest Cases. sec.405.115. Enforcement and Penalties. (a) For private psychiatric hospitals and psychiatric units of general hospitals, the Texas Department of Health shall enforce the applicable rules and standards adopted by the department to the same extent as it enforces rules adopted by the Texas Board of Health. A violation of this subchapter is subject to the same consequences as a violation of a rule adopted by the Texas Board of Health. (b) A person who violates a provision of this subchapter may be subject to injunction, civil penalties, and related costs pursuant to the provisions of the Health and Safety Code, Chapter 571, sec.sec.571.22-571.24, and Chapter 241, sec.241.55. (c) A person licensed by the Texas Department of Health or regulated by the department who violates a provision of this subchapter may be subject to administrative penalties and related costs pursuant to the Health and Safety Code, Chapter 571, ssec.571.25-571.26, and Chapter 241, sec.sec.241.58 and 241.585. (d) A treatment facility or mental health facility that violates a provision of this subchapter is liable to a person receiving care or treatment from the facility who is harmed as a result of the violation, consistent with the provisions of the Health and Safety Code, Chapter 321, Subsections 321.003- 321.004. sec.405.116. Distribution. (a) The provisions of this subchapter shall be distributed to: (1) members of the Texas Board of Mental Health and Mental Retardation; (2) deputy commissioners, associate deputy commissioners, and assistant deputy commissioners of TXMHMR Central Office; (3) superintendents and directors of all department facilities; (4) the TXMHMR Medical Advisory Committee; (5) chairpersons of the boards of trustees and executive directors of community mental health and mental retardation centers; (6) chief executive officers and medical staff chiefs of all inpatient facilities licensed in Texas; (7) chief executive officers and chief physicians at other state agencies providing medical care, including, but not limited to, the Texas Department of Criminal Justice, the Texas Department of Corrections, and the Texas Department of Health; (8) all psychiatrists licensed to practice medicine in Texas; (9) the executive director of the Texas Society of Psychiatric Physicians; (10) the executive director of the Texas Medical Association; (11) the executive director of the Texas Hospital Association; (12) psychiatry department chairs of universities in Texas; (13) psychiatry department heads of Veterans Administration hospitals; (14) psychiatry department heads of large hospital departments of psychiatry; and (15) the Texas State Board of Medical Examiners. (b) The chief executive officer shall provide copies of this subchapter to: (1) clinical directors; (2) medical directors; (3) staff physicians; and (4) organizations or individuals contracting with any facility providing ECT. Issued in Austin, Texas, on September 10, 1993. TRD-9328737 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 465-4516 25 TAC sec.sec.405.105, 405.106, 405.108, 405.114 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis the repeal of sec. s405.105, 405.106, 405.108, and 405.114, concerning electroconvulsive therapy. The repeal is adopted contemporaneously with the emergency adoption and proposal of new sec.sec.405. 108 and 405.114, also in this issue of the Texas Register. Sections 405.105 and 405.106 would be reserved. The emergency repeal is necessary to enable the adoption of sections that implement provisions of Senate Bill 205 of the 73rd Texas Legislature. The repeal of sec.sec.405.105 and 405.106 would delete information about indications and contraindications for the use of ECT and required medical evaluations. This information would be addressed in the supplemental written statement (Exhibit B) required by new sec.405.108 of the new subchapter. The repeal of sec.405.108 would delete reference to special limitations on the administration of ECT to persons under the age of 16. Senate Bill 205 of the 73rd Texas Legislature prohibits the administration of ECT to persons under the age of 16. The repeal of sec.405.114 would enable the addition of a new section to the subchapter to implement the provisions of Senate Bill 205 of the 73rd Texas Legislature concerning registering ECT equipment. A public hearing to accept testimony concerning the proposals relating Chapter 405, Subchapter E, will be held at 3:00 on September 28, 1993, in the auditorium of the central office of TDMHMR, at 909 West 45th Street, Austin, Texas. Individuals requiring an interpreter for the hearing impaired should contact Linda Logan, director, Policy Development, at least 72 hours prior to the hearing. Written comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The sections are adopted on an emergency basis under under Texas Civil Statutes, Article 6252-13a, sec.5(d); under the Health and Safety Code, Title 7, sec.532.015(a), which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers; under the provisions of Senate Bill 205 of the 73rd Texas Legislature, regular session, which requires rulemaking specific to electroconvulsive therapy; and under the provisions of Senate Bill 210 of the 73rd Texas Legislature, which requires treatment standards in private psychiatric hospitals to not be less restrictive than that in public mental hospitals. sec.405.105. Indications and Contraindications for the Use of ECT. sec.405.106. Medical Evaluation Required Prior to a Course of ECT. sec.405.108. Limitations on Use of ECT: For Persons under the Age of 16. sec.405.114. Distribution. Issued in Austin, Texas, on September 10, 1993. TRD-9328736 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: September 10, 1993 Expiration date: January 9, 1994 For further information, please call: (512) 465-4516 Chapter 409. Medicaid Programs Subchapter E. Home and Community-based Services-OBRA 25 TAC sec.sec.409.153, 409.156, 409.166, 409.167-409.173 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis amendments to sec.409.152, sec.409.156, and sec.409. 166, and new sec.sec.409.167-409.173, concerning home and community-based services- OBRA (HCS-O). The emergency amendments are necessary to ensure the provision of Medicaid services consistent with the provisions of the current Appropriation Act, Rider 14, Code of Federal Regulations, Part 441, sec.441.13, which requires the department to maximize the collection of federal funds. The emergency new sections are necessary to ensure the health, welfare, and safety of individuals being served in Home and Community-based Services-Omnibus Budget Reconciliation Act (OBRA) (HCS-O) programs. The purpose of the amendments is to update client eligibility criteria, financial eligibility criteria, and spousal impoverishment provisions consistent with the provisions of the waiver; with the current Appropriation Act, Rider 14, Code of Federal Regulations, Part 441, sec.441.13, which requires the department to maximize collection of federal funds; and with the spousal impoverishment provisions of the Social Security Act, sec.1924, and as specified in the Medicaid State Plan. The sections being amended are part of a number of rules that were transferred from the Department of Human Services (TDHS) to the Texas Department of Mental Health and Mental Retardation effective October 1, 1993. The amendments have been approved for emergency adoption by the Medical Care Advisory Committee. The Medicaid HCS-O program serves persons with mental retardation and/or related conditions who have been determined through the Annual Resident Review (ARR) process to require specialized services and be inappropriately residing in nursing facilities. Corrective action and provider sanctions are being proposed to clarify when provider sanctions are implemented and/or when provider on-site follow-up visits will occur before those required concurrently with the recertification review. The provisions of the new sections for HCS-O are identical to those currently used for corrective action and provider sanctions in the Home and Community- based Services (HCS) program. A public hearing to accept testimony concerning the emergency edition of the document will be held on October 6, 1993, at 9:00 a.m., in the auditorium of the Central Office of TXMHMR, at 909 West 45th Street, Austin. Individuals requiring an interpreter for the hearing impaired should contact Linda Logan, director, Policy Development, at least 72 hours prior to the hearing at (512) 206-4516. The amendments and new sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provides emergency rulemaking powers; under the provisions of Health and Safety Code, Title 7, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.409.153. Client Eligibility Criteria. (a) To be determined eligible by the Texas Department of Mental Health and Mental Retardation (TXMHMR) for the OBRA-Targeted Waiver Program, an applicant must: (1)-(5) (No change.) (6) be directly
                                                                                                                            discharged from a Medicaid certified nursing facility; and (7) (No change.) (b) -(c) (No change.) sec.409.156. Financial Eligibility Criteria. To be determined financially eligible by the Texas Department of Human Services (TDHS) for home and community-based services through this waiver program, an applicant must: (1)-(4) (No change.) (5) be an individual under 19 years of age for whom the Texas Department of Protective and Regulatory Services (PRS) assumes financial responsibility, in whole or in part (not to exceed Level II foster care payment), and who is being cared for in: (A) (No change.) (B) a family foster home which is licensed or certified and supervised by a licensed public or private nonprofit child placing agency, [or [(C) a private nonprofit child care institution licensed by PRS;] or (6) (No change.) sec.409.166. Spousal Impoverishment Provisions. (a)-(b) (No change.) [(c) To determine the amount of the recipient's income applicable to payment, TDHS uses the same methodology as if the recipient were residing in an institution, except that the personal needs allowance is equal to the institutional cap.] sec.409.167. Corrective Action and Provider Sanction. The guidelines specified in sec.sec.409.168-409.173 of this title (relating to Hazards to Health, Safety and Welfare; Level I Action; Level II Action; Level III Action; Unannounced or Intermittent Review Visits; and Discretionary Certification Sanctions) are used by the Texas Department of Mental Health and Mental Retardation (TXMHMR) Home and Community-Based Services-OBRA (HCS-O) program review teams and the TXMHMR HCS program coordination office to determine the need for provider sanctions and/or provider on-site follow-up review visits that occur before those required concurrently with the recertification review. Current certification review corrective action plans required from the provider and related timelines that are referenced in the HCS-O Program Provider Manual remain in effect, if applicable. sec.409.168. Hazards to Health, Safety and Welfare.
                                                                                                                              Hazards to health, safety and welfare are any conditions that the review team determines will result in life threatening harm, permanent injury, or death of the individual within 48 hours. These items are designated as such in the Home and Community- Based Services-OBRA certification review report. If the items are corrected during the review visit, the corrections will also be designated in the report. (1) Immediate Corrective Action. Findings determined to be hazards to health, safety and welfare must be corrected before the exit conference of the respective review visit. (2) Sanction. If the provider does not correct the hazards to health, safety and welfare; (A) the provider must not be certified, continue certification, or be recertified; and (B) the Texas Department of Mental Health and Mental retardation (TXMHMR) coordinates development of alternative services for people enrolled in the provider's program, as appropriate. sec.409.169. Level I Action. (a) Determination. Level I action results if: (1) 12 or more items of noncompliance from the sections of the Consumer Principles for Evidentiary Certification listed in subparagraphs (A)-(D) of this paragraph remain uncorrected at the time of the exit conference: (A) Service Delivery (Section C); (B) Interdisciplinary Team Operations (Section D); (C) Personnel Operations (Section F); (D) Quality Assurance (Section G); or (2) more than seven of the remaining uncorrected principles are the same principles which were cited and corrected during the previous review visit. These uncorrected principles are called "Repeat Items." (b) Corrective Action. The provider must complete corrective action within 30 calendar days from the date of the exit conference. The Texas Department of Mental Health and Mental Retardation (TXMHMR) must complete an on-site follow-up review within 15 calendar days following the 30th day. (c) Vendor Hold. If the provider does not correct all remaining items of noncompliance during the first follow-up visit, vendor hold is implemented. The vendor hold is effective for up to 60 calendar days. (1) The Home and Community-Based Services (HCS) program coordination office recommends to the Texas Department of Human Services (DHS) that provider reimbursement be suspended until corrective actions are completed. (2) TXMHMR completes a second follow-up review visit between 30 and 45 calendar days from the date the vendor hold was implemented. (3) If the provider corrects all items of noncompliance during the second follow-up visit, the vendor hold is removed effective the date of the exit conference of the visit. (d) Denial of Certification. Denial of certification results if the provider does not fully correct all items of noncompliance within 60 calendar days of the establishment of vendor hold, as determined by the second follow-up visit by TXMHMR. The HCS program coordination office does not certify the provider and recommends to the appropriate state authority that contract cancellation action be initiated. sec.409.170. Level II Action. (a) Determination. Level II action results if: (1) eight, nine, ten, or 11 items of noncompliance from the sections of the Consumer Principles for Evidentiary Certification listed in subparagraphs (A)- (D) of this paragraph remain uncorrected at the time of the exit conference: (A) Service Delivery (Section C); (B) Interdisciplinary Team Operations (Section D); (C) Personnel Operations (Section F); (D) Quality Assurance (Section G) ; or (2) four, five, six, or seven of the remaining uncorrected principles are the same principles which were cited and corrected during the previous review visit. These uncorrected principles are called "Repeat Items." (b) Corrective Action. The provider must complete corrective action within 45 calendar days from the date of the exit conference. The Texas Department of Mental Health and Mental Retardation (TXMHMR) must complete an on-site follow-up review within 15 calendar days following the 45th day. (c) Second Follow-up Visit. TXMHMR conducts a second follow-up visit if items of noncompliance remain uncorrected after completion of the first follow-up visit. (1) The provider must complete corrective action for the remaining items of noncompliance within 30 calendar days from the date of the exit conference of the first follow-up review. (2) TXMHMR must complete the second follow-up visit within 15 calendar days following the 30th day. (d) Vendor Hold. If the provider does not correct all remaining items of noncompliance during the second follow-up visit, vendor hold is implemented. The vendor hold is effective for up to 60 calendar days. (1) The Home and Community-Based Services (HCS) program coordination office recommends to the Texas Department of Human Services (DHS) that provider reimbursement be suspended until corrective actions are completed. (2) TXMHMR completes a third follow-up review visit between 30 and 45 calendar days from the date the vendor hold was implemented. (3) If the provider corrects all items of noncompliance during the third follow-up visit, the vendor hold is removed effective the date of the exit conference of the visit. (e) Denial of Certification. Denial of certification results if the provider does not fully correct all items of noncompliance within 60 calendar days of the establishment of vendor hold, as determined by the third follow-up visit by TXMHMR. The HCS program coordination office does not certify the provider and recommends to the appropriate state authority that contract cancellation action be initiated. sec.409.171. Level III Action. (a) Determination. Level III action results if more than 12 items of noncompliance from the sections of the Consumer Principles for Evidentiary Certification listed in paragraphs (1)-(3) of this subsection remain uncorrected at the time of the exit conference: (1) Mission, Development, and Philosophy of Program Operations Section (A); (2) Consumer Rights (Section B); or (3) Denials and Service Terminations (Section E). (b) Corrective Action with Technical Assistance. (1) The provider must complete corrective action within 60 calendar days from the date of the exit conference. (2) Formal technical assistance to correct items of noncompliance may be: (A) given by the Home and Community-Based Services program coordination office during the visit; or (B) scheduled by the Texas Department of Mental Health and Mental Retardation within 90 days from the date of the exit conference. sec.409.172. Unannounced or Intermittent Review Visits. (a) Determination. (1) Unannounced or intermittent review visits may occur at any time, with or without prior notice to the provider, at the discretion of the Home and Community-Based Services (HCS) Program Coordination office. (2) Unannounced or intermittent review visits must have the prior approval of the Texas Department of Mental Health and Mental Retardation HCS director for provider services. (3) Before leaving an on-site certification visit, the HCS-O review team must ensure that no items of noncompliance remain that suggest: (A) except for appealing, the HCS-O provider is unwilling to comply with the findings; (B) there is a likelihood that a hazard will occur at a later date, as the result of the remaining items of noncompliance; or (C) pervasive patterns of noncompliance exist that indicate a hazard may occur before the next scheduled or indicated follow-up visit, as a direct result of the remaining items of noncompliance. (i) Pervasiveness is not a prime factor in determining whether a hazardous condition exists because noncompliance can be isolated or widespread. (ii) Pervasiveness can indicate how difficult the noncompliance items can be for the HCS-O provider to correct and if an intermittent or unannounced review (on-site or desk review) is needed before the scheduled and/or indicated follow- up visits. (b) Corrective Action and Sanctions. Corrective action and sanctions imposed as a result of unannounced or intermittent review visits may include any of those listed in sec.409.168 of this title (relating to Hazards to Health, Safety and Welfare; Level I Action; Level II Action; and Level III Action). sec.409.173. Discretionary Certification Sanctions. (a) Sanctions specified in sec.sec.409.167-409.172 of this title (relating to Corrective Action and Provider Sanction; Hazards to Health, Safety and Welfare; Level I Action; Level II Action; Level III Action; and Unannounced or Intermittent Review Visits) may be applied on a discretionary basis if the uncorrected items of noncompliance cited during a review visit are of such substantial magnitude or pervasive extent to warrant actions that do not fall under the sanctions listed in this section. (b) Discretionary certification sanctions require consultation with, and prior approval of, the Home and Community-Based Services director for provider services. (c) Discretionary certification sanctions may consist of any actions specified in sec.sec.409.167-409.172 of this title (relating to Corrective Action and Provider Sanction; Hazards to Health, Safety and Welfare; Level I Action; Level II Action; Level III Action; and Unannounced or Intermittent Review Visits). Issued in Austin, Texas, on September 10, 1993. TRD-9328727 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: October 2, 1993 Expiration date: January 31, 1994 For further information, please call: (512) 206-4516 Subchapter H. Diagnostic Services for Persons with Potential of Mental Retardation 25 TAC sec.sec.409.301-409.306 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts on an emergency basis new sec.sec.409.301-409.306, concerning diagnostic services for persons with potential of mental retardation. The sections are published contemporaneously in this issue of the Texas Register for public comment. The emergency adoption is necessary to effect the transfer from the Texas Department of Human Services (TDHS) to TXMHMR of Medicaid state operating agency functions for diagnostic services for persons with potential for mental retardation. The emergency new rules are substantially the same as rules of the Texas Department of Human Services (TDHS) contained in Title 40, Texas Administrative Code, sec.sec.29.201-29.207, governing the same matters. The primary difference in the documents is that references to TDHS have been changed to reference TXMHMR, where appropriate. The transfer is enacted under the authority of the Health and Human Services Commission as the Medicaid single state agency pursuant to House Bill 7 of the 72nd Texas Legislature and the Medicaid State Plan. These sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.5(d), which provide emergency rulemaking powers; under the provisions of the Health and Safety Code, Title 7, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers; and under the provisions of Texas Civil Statutes, Article 4413(502) sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.409.301. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Department-The Texas Department of Mental Health and Mental Retardation (TXMHMR) of its designee. Diagnostic services -as specified in 42 Code of Federal Regulations, s440.130(a), including any medical procedures or supplies recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under state law, to enable him to identify the existence, nature, or extent of illness, injury, or other health deviation in a recipient. Mental Retardation -significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and originating during the developmental period. Subaverage general intellectual functioning refers to measured intelligence on standardized psychometric instruments of two or more standard deviations below the age group mean for the tests used. Texas Department of Mental Health and Mental Retardation (TXMHMR)-The Texas Department of Mental Health and Mental Retardation (TXMHMR) of its designee. sec.409.302. Reimbursable Diagnostic Services. Reimbursable diagnostic services include, but are not necessarily limited to: (1) medical assessment performed by a licensed physician (M.D./D.O.) including: (A) a relevant medical history and a statement of findings of a physical exam; (B) recommendation for consultation with other medical and paramedical professionals; and (C) referral for further diagnostic studies and/or evaluations; (2) psychological assessment: (A) to determine the individual's levels of intellectual, adaptive behavior, and affective functioning; (B) to identify the individual's needs; and (C) to make written recommendations that will address those needs; (3) social assessment: (A) to provide a written description of significant factors that have influenced the individual's life history; (B) to construct a developmental history which includes links in heredity and/or social environment that may be relevant to the individual's diagnosis; and (C) to provide recommendations regarding available resources that will address the needs of the individual; and (4) developmental assessment: (A) to determine the individual's level of cognitive functioning; (B) to identify the service needs; and (C) to recommend resources to address those needs. sec.409.303. Exclusions. Diagnostic services provided to persons residing in an intermediate care facility for persons with mental retardation (ICF-MR) are excluded as a reimbursable service under this subchapter. sec.409.304. Provider Qualifications.
                                                                                                                                A provider agency of diagnostic services must: (1) comply with all applicable federal, state, and local laws and regulations pertaining to comprehensive diagnostic assessments; (2) be enrolled and approved for participation in the Texas Medical Assistance Program; (3) sign a written provider agreement with the Texas Department of Mental Health and Mental Retardation (TXMHMR), in which the provider agrees to comply with the terms of the agreement and all requirements of the Texas Medical Assistance Program including regulations, rules, handbooks, standards, and guidelines published by TXMHMR its designee; (4) bill for services covered by the Texas Medical Assistance Program in the manner and format prescribed by TXMHMR and the provisions of OMB Circulars A-87 and A-102; and (5) meet the following additional criteria: (A) be a community-based agency that has a service delivery system that provides core and essential services prescribed by the State Mental Retardation Authority in the TDMHMR Community Standards for Mental Retardation; (B) meet the administrative and program operation procedures specified by State Mental Retardation Authority in the TDMHMR Community Standards for Mental Retardation; and (C) be in compliance with the State Mental Retardation Authority Guidelines for Annual Financial and Compliance Audits of Community MHMR Centers or meet the requirements of the state auditor. sec.409.305. Conditions for Payment. (a) As a condition for the provider receiving payment 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. (b) The service provider must be a physician or be professional/ paraprofessional staff licensed or certified in the state in which the services are provided. (c) Services provided by the professional staff must be within the staff's scope of practice as defined by Texas law. sec.409.306. Reimbursement Methodology. (a) General information. The Texas Department of Mental Health and Mental Retardation (TXMHMR) will reimburse qualified provider agencies for diagnostic services provided to Medicaid eligible persons with a potential of mental retardation. The Texas Department of Mental Health and Mental Retardation Board determines reimbursement rates according to sec.409.1 and s409.2 of this title (relating to General Specifications and Methodology). These rates are: (1) uniform; (2) determined prospectively; and (3) determined at least annually. Rates may be determined more often than annually if the Texas Department of Mental Health and Mental Retardation Board determines that it is necessary. (b) Basis for the rate analysis. (1) For the rate period, providers will be reimbursed on the projected expenses required to provide completed diagnostic services. (2) Cost data are taken from the costs associated with the four assessment areas comprising the completed diagnosis, and from the costs associated with overhead expenses. (3) The reimbursement rate will be developed by use of TXMHMR cost survey data submitted by providers, consultation with service providers, and professionals experienced in diagnostic services. (c) Reporting of costs. (1) Cost reporting. Providers must submit information annually, unless otherwise specified, on cost survey forms which are provided by TXMHMR or on facsimiles which are formatted according to TXMHMR specifications and which are preapproved by TXMHMR staff. From the survey data, TXMHMR will develop and implement a cost based, statewide, uniform reimbursement rate for completed diagnostic services. Providers must complete the cost survey forms according to the rules and specifications set forth in the methodology specified in this section. (2) Reporting period and due date. Provider agencies must prepare the survey to reflect diagnostic activities during the designated cost survey reporting period. The cost surveys must be submitted to TXMHMR no later than 30 days following the end of the designated reporting period unless otherwise specified by TXMHMR. (3) Extension of due date. TXMHMR may grant extensions of due dates for good cause. A good cause is one that the provider agency could not reasonably be expected to control. Provider agencies must submit requests for extensions in writing to TXMHMR before the cost survey due date. Provider Reimbursement Department staff respond to requests within ten workdays of receipt. (4) Failure to file an acceptable cost survey. If a provider agency fails to file a cost survey according to all applicable rules and instructions, the department may withhold all provider payments until the provider agency submits an acceptable cost survey. (5) Allocation method. If allocation of cost is necessary, provider agencies must use and be able to document reasonable methods of allocation. TXMHMR adjusts allocated costs if the department considers the allocation method to be unreasonable. The provider agency must retain workpapers supporting allocations, as specified in Title 40, sec.69.202. (6) Cost survey certification. Provider agencies must certify the accuracy of cost surveys submitted to TXMHMR in the format specified by TXMHMR. Provider agencies may be liable for civil and/or criminal penalties if they misrepresent or falsify information. (7) Cost data supplements. The department may at times require additional financial and statistical information other than the information contained in the cost survey. (8) Review of cost surveys. TXMHMR staff review each cost survey to ensure that all financial and statistical information submitted conforms to all applicable rules and instructions. The review of the cost survey includes a desk audit. TXMHMR reviews all cost surveys according to the criteria in sec.409.3 of this title (relating to Basic Objectives and Criteria for Desk Review of Cost Reports). If a provider agency fails to complete cost reports according to instructions or rules, the department returns the cost reports to the provider agency for proper completion. The department may require information other than that contained in the cost survey to substantiate reported information. (9) On-site audits. The department may perform on-site audits on all provider agencies that participate in the Medicaid program for diagnostic services for persons with potential of mental retardation. TXMHMR determines the frequency and nature of audits but ensures that they are not less than that required by federal regulations related to the administration of the program. (10) Notification of exclusions and adjustments. TXMHMR notifies providers of exclusions and adjustments to reported expenses made during desk reviews and on- site audits of cost surveys as specified in sec.409.5 of this title (relating to Notification). (11) Access to records. Each contracted provider must allow access to any and all records necessary to verify cost survey information submitted to TXMHMR. This requirement includes records pertaining to related party transactions and other business activities engaged in by the contracted provider. If a provider agency does not allow inspection of pertinent records within 30 days following written notice from TXMHMR, a hold is placed on vendor payments until access to the records is allowed. If the provider agency continues to deny access to records, the department may cancel the provider agency's contract. (12) Recordkeeping requirements. Provider agencies must maintain records according to the requirements stated in Title 40, sec.69.202. Provider agencies must ensure that records are accurate and sufficiently detailed to support the financial and statistical information contained in cost surveys. (13) Failure to maintain adequate records. If a provider agency fails to maintain adequate records to support the financial and statistical information reported in cost surveys, the department allows 90 days for the provider agency to bring recordkeeping into compliance. If a provider agency fails to correct deficiencies within 90 days from the date of notification of the deficiency, the department may cancel the provider agency's contract for services. (d) Reimbursement rate determination. TXMHMR determines rate reimbursement in the following manner. (1) Exclusion of certain reported expenses. Provider agencies must ensure that all unallowable costs are eliminated from the cost survey. TXMHMR excludes any unallowable costs that are included in the cost survey. (2) Cost determination. Reported costs from the survey are associated with the four assessment areas and include the allocated amount of overhead expenses. (A) Reported costs include salaries, wages, and benefits for all diagnostic personnel directly or indirectly providing services associated with the four assessment areas and indirect overhead expenses. (B) Indirect overhead expenses include, but are not limited to, allowable indirect overhead expenses allocated to diagnostic services: supplies, administrative, and facility costs including utilities. Administrative costs are defined as those costs required to support diagnostic services and which are not included in the costs for the direct delivery of diagnostic services. Allowable overhead expenses may be the same as a facility's approved indirect rate. Direct costs associated with diagnostic support staff are specified in subparagraph (A) of this paragraph. (3) Cost per completed diagnosis. Each contracted provider's cost per completed diagnosis is determined by dividing the provider's total costs associated with the four assessment areas and any allocated indirect overhead expenses by the provider's total number of diagnoses completed during the reporting period. (4) Projected costs. Reported costs are projected prior to their being arrayed. The department determines reasonable methods for projecting costs from the historical reporting period to the prospective rate period. Cost projections adjust the allowed historical costs for significant changes in cost related conditions anticipated to occur between the historical cost period and the prospective rate period. Significant conditions include, but are not necessarily limited to, wage and price inflation or deflation, changes in program utilization and occupancy, modification of federal or state regulations and statutes, and implementation of federal or state court orders and settlement agreements. TXMHMR determines reasonable and appropriate economic adjusters, as described in sec.409.4 of this title (relating to Determination of Inflation Indices), to calculate the projected expenses. TXMHMR adjusts rates if new legislation, regulations, or economic factors affect costs, as specified in sec.409.6 of this title (relating to Adjusting Rates When New Legislation, Regulations, or Economic Factors Affect Costs). (5) Rate setting methodology. TXMHMR determines the recommended reimbursement rate using the following method: Each contracted provider's cost per completed diagnosis is arrayed from low to high. The median cost per completed diagnosis is selected and becomes the recommended reimbursement rate. (6) Rate setting authority. The Texas Department of Mental Health and Mental Retardation Board establishes the reimbursement rate in an open meeting after consideration of financial and statistical information, and public testimony. The Board will set rates which, in its opinion, will be within budgetary constraints, adequate to reimburse the cost of operations for an efficient and economic provider, and justifiable given current economic conditions. (7) Reviews of cost survey disallowances. A provider agency may request notification of the exclusions and adjustments to reported expenses made during either desk reviews or on-site audits, according to sec.409.5 of this title (relating to Notification). Providers may request an informal review and, if necessary, an administrative hearing to dispute an action taken by TXMHMR, under sec.409.7 of this title (relating to Reviews and Administrative Hearings). (e) Requirements for allowable costs. Allowable costs must be: (1) necessary and reasonable for the proper and efficient administration of diagnostic services for which the department has contracted; (2) authorized or not prohibited under state or local laws or regulations; (3) consistent with any limitations or exclusions described in this section, federal or state laws or other governing limitations as to types or amounts of cost items; (4) consistent with policies, regulations, and procedures that apply to both diagnostic services and other activities of the organization of which the contracted provider agency is a part; (5) treated consistently using generally accepted accounting principles appropriate to the circumstances; (6) not allocable to or included as a cost of any other program in either the current or a prior period; and (7) the net of all applicable credits. (f) Reasonableness. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by an ordinarily prudent person in the conduct of competitive business. In determining the reasonableness of a given cost, the department considers the following: (1) whether the cost is of a type generally recognized as ordinary and necessary for the provision of diagnostic services or the performance under the contract; (2) the restraints or requirements imposed by generally accepted sound business practices, arm's length bargaining, federal and state laws and regulations, and contract terms and specifications; and (3) the action that a prudent person would take in the circumstances, considering his responsibilities to the public, the government, his employees, clients, shareholders, and/or members, and the fulfillment of the purpose for which the business was organized. (g) List of allowable costs. The following list of allowable costs is not comprehensive, but rather serves as a general guide and serves to clarify certain key expense areas. The absence of a particular cost does not necessarily mean that it is not an allowable cost. (1) Compensation of contracted or staff diagnostic employees. The only employees whose compensation is an allowable cost are those contracted or staff diagnostic employees who provide diagnostic services directly, such as the physician, registered nurse, psychologist, educational specialist, social worker, diagnostic coordinator, and clerical staff. Therapists may be included if their services have been referred prior to summary and recommendation, and if their time is spent on assessment only. Compensation includes the following. (A) Wages and salaries. This category includes deferred compensation, overtime pay, incentive pay and bonuses, or any other monies subject to withholding taxes and FICA deductions. (B) Payroll taxes and insurance. Federal Insurance Contributions Act (FICA or Social Security), unemployment compensation insurance, workmen's compensation insurance. (C) Employee benefits. This category includes employer paid health and life insurance premiums, and employer contributions to employee retirement accounts. (2) Travel. Travel expenses directly related to the provision of diagnostic services are allowable. Mileage is allowable if there is adequate documentation of the mileage and if the expense was related to delivery of services for which the department has contracted. (3) Indirect Overhead Expenses. Costs incurred at administrative and support levels of management above the costs of direct delivery of diagnostic services are allowable to the extent that the administrative and support costs were incurred to support the delivery of diagnostic services in the conduct of normal operations. Allowable costs incurred at administrative and support levels of management above the costs of direct delivery of diagnostic services include personnel costs, staff development, legal services, quality assurance, accounting, bookkeeping, building, and building and equipment maintenance. Allowable costs are limited to the allocated portion of these costs, which portion can be documented as being related to the delivery of diagnostic services by the diagnostic unit. The following categories and conditions also apply: (A) building, equipment, and capital expenses; (B) depreciation and amortization expense. Property owned by the provider and improvements to owned, leased, or rented property and valued at more than $500 at the time of purchase must be depreciated or amortized, using the straight line method. (i) Excluding air conditioning units and trade fixtures, allowable depreciation for buildings is calculated by deducting the estimated salvage value from the historical cost and dividing the result by the asset's remaining years of useful life. (ii) Costs of building equipment, air conditioners, furnaces, chairs, desks, and building and grounds improvements qualify as depreciation and amortization expenses. (C) insurance expense. Allowable insurance expense includes costs of insurance covering facility fire and casualty, professional liability and malpractice, and transportation equipment liability; (D) utilities expense. Includes electricity and natural gas, water, waste water, garbage collection, telephone, and telefacsimile; (E) materials and supplies. Includes office supplies, educational supplies, and testing equipment; (F) training expenses. Limited to direct costs for travel, lodging, food, and registration fees for personnel who provide diagnostic services directly. Training must be related directly to diagnostic services; (G) administrative wages and salary. Limited to expenses incurred which are directly related to the provision of diagnostic services. Allowable compensation costs include those items defined in subsection (g)(1)(A)-(C) of this section. (h) Unallowable costs. Unallowable costs are expenses incurred by a provider agency, which are not directly or indirectly related to the provision of diagnostic services according to applicable laws, rules, and standards. A provider agency may expend funds on unallowable cost items, but those costs must not be included in the cost survey and are not used in calculating a rate recommendation. Unallowable costs include, but are not necessarily limited to: (1) compensation in the form of salaries, benefits, or any form of compensation given to individuals who do not provide diagnostic services; (2) personal expenses not directly related to the provision of diagnostic services; (3) management fees or indirect costs that are not derived from the actual cost of materials, supplies, or services necessary for the delivery of diagnostic services; (4) advertising expenses other than those for advertising in the yellow pages, for employee recruitment, and for meeting any statutory or regulatory requirement; (5) business expenses not directly related to the provision of diagnostic services; (6) political contributions; (7) depreciation and amortization of unallowable costs, including amounts in excess of those resulting from the straight line depreciation method; capitalized lease expenses in excess of the actual lease payment; and goodwill or any excess above the actual value of the physical assets at the time of purchase; (8) trade discounts of all types, including returns, allowances, and refunds; (9) donated facilities, materials, supplies and services including the values assigned to the services of unpaid workers and volunteers; (10) dues to all types of political and social organizations, and to professional associations not directly and primarily concerned with the delivery of diagnostic services; (11) entertainment expenses except those incurred for entertainment provided to the staff of the diagnostic unit as an employee benefit; (12) board of directors fees; (13) fines and penalties for violations of regulations, statutes, and ordinances of all types; (14) fund raising and promotional expenses; (15) interest expenses on loans pertaining to unallowable items and on that portion of interest paid which is reduced or offset by interest income; (16) insurance premiums pertaining to items of unallowable cost; (17) accrued expenses that are not a legal obligation of the provider or are not clearly enumerated as to dollar amount, including any form of profit sharing and the accrued liabilities of deferred compensation plans; (18) mileage expense exceeding the current reimbursement rate set by the Texas Legislature for state employee travel; (19) costs of purchases from a related party which exceed the original cost to the related party; (20) out of state travel expenses not directly related to the provision of diagnostic services; however, training courses or quality assurance functions are allowable for those who provide diagnostic services; (21) contributions to self insurance funds which do not represent payments based on current liabilities; (22) any expense incurred because of imprudent business practices; (23) expenses which cannot be adequately documented; (24) expenses not reported according to the instructions of the cost survey; (25) any expense not allowable under other pertinent federal, state, or local laws or regulations. Issued in Austin, Texas, on September 10, 1993. TRD-9328710 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: October 1, 1993 Expiration date: January 30, 1994 For further information, please call: (512) 206-4516