TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

SUBCHAPTER E. RESIDENT RIGHTS

40 TAC §19.424

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1, govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC adopts new §19.424, concerning Wheelchair Self-Release Seat Belts, with changes to the proposed text published in the October 6, 2017, issue of the Texas Register (42 TexReg 5389).

BACKGROUND AND JUSTIFICATION

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code, as added by House Bill 284 of the 85th Legislature, Regular Session, 2017 (H.B. 284).

The rule requires a nursing facility to allow a resident to use a wheelchair self-release seatbelt if the resident meets certain conditions. The rule also specifies when a nursing facility is not required to allow a resident to use a wheelchair self-release seat belt.

COMMENTS

The 30-day comment period ended November 6, 2017.

During this period, HHSC received comments regarding the proposed rule from one commenter. A summary of the comments and HHSC's responses follow.

Comment: The commenter stated that the rule is not necessary because wheelchair self-release seatbelts are not considered restraints and existing rules adequately address the topic.

Response: HHSC has stated in the rule that a wheelchair self-release seat belt is not a restraint because, as defined, it is being used by a resident who has the ability to fasten and release it without assistance. HHSC also notes that H.B. 284 requires the adoption of rules necessary to implement Texas Health and Safety Code, §322.0515, which has specific requirements related to wheelchair self-release seat belts. Consistent with §322.0515, the rule provides that a request for a wheelchair self-release seatbelt must be honored under certain circumstances, unless the nursing facility has given all residents notification in accordance with the rule and makes all reasonable efforts to accommodate a resident who requests a seat belt. HHSC considers the rule necessary to implement §322.0515. No change was made to the rule in response to the comment.

Comment: The commenter stated that the rule may result in facilities limiting the use of a wheelchair self-release seatbelt, a device that may keep residents safe and prevent falls. The commenter stated that injuries and accidents should be prevented at all costs and that willing residents should have the right to use a "non-restraint safety device."

Response: A facility is required to protect the health and safety of its residents and may provide a self-release seat belt if such a belt is recommended and approved by a resident's interdisciplinary team, even if the resident has not requested one. In addition, only a facility that states it is otherwise restraint-free may refuse to honor a request for a seat belt under the circumstances described in the rule. Furthermore, if a facility does not honor a request for a seat belt, it must make all reasonable efforts to accommodate the resident who requested it. Therefore, HHSC believes there are adequate safeguards to protect a resident who may benefit from using a wheelchair self-release seat belt . No change was made in response to the comment.

Comment: The commenter asked if the rule applies to a wheelchair that comes equipped with a self-release seat belt.

Response: If the seat belt meets the definition of a "self-release seat belt" in subsection (a) of the rule, then the rule applies to the seat belt.

Comment: The commenter suggested that HHSC clarify that the rule applies only in a facility, not to a seatbelt in a vehicle, such as a van or bus.

Response: The rule specifically provides that a "self-release seat belt" is a seat belt on a wheelchair. HHSC does not think it is necessary to clarify that the term does not refer to a seat belt in a motor vehicle. No change was made in response to the comment.

In §19.424(b)(3), the term "individual program plan" is changed to "comprehensive care plan". Comprehensive care plan is defined in the nursing facility rules at §19.101(23) and is the term used throughout the nursing facility rules for licensure and Medicaid certification.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code, §242.037, which requires the HHSC executive commissioner to adopt rules related to the administration and implementation of Chapter 242; and Texas Health and Safety Code, §322.0515, which requires a nursing facility to allow a resident to use a wheelchair self-restraint seat belt under certain circumstances.

§19.424.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's comprehensive care plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's comprehensive care plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 12, 2017.

TRD-201705103

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: January 1, 2018

Proposal publication date: October 6, 2017

For further information, please call: (512) 438-3334


CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

SUBCHAPTER C. STANDARDS FOR LICENSURE

40 TAC §90.45

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC adopts new §90.45, concerning Wheelchair Self-Release Seat Belts, with changes to the proposed text published in the October 6, 2017, issue of the Texas Register (42 TexReg 5390).

BACKGROUND AND JUSTIFICATION

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code, as added by House Bill 284 of the 85th Legislature, Regular Session, 2017 (H.B. 284).

The rule requires an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) to allow a resident to use a wheelchair self-release seat belt if the resident meets certain conditions. The rule also specifies when an ICF/IID is not required to allow a resident to use a wheelchair self-release seat belt.

COMMENTS

The 30-day comment period ended November 6, 2017. During this period, HHSC received comments regarding the proposed rule from one commenter. A summary of the comments and HHSC's responses follow.

Comment: The commenter stated that the rule is not necessary because wheelchair self-release seatbelts are not considered restraints and existing rules adequately address the topic.

Response: HHSC has stated in the rule that a wheelchair self-release seat belt is not a restraint because, as defined, it is being used by a resident who has the ability to fasten and release it without assistance. HHSC also notes that H.B. 284 requires the adoption of rules necessary to implement Texas Health and Safety Code, §322.0515, which has specific requirements related to wheelchair self-release seat belts. Consistent with §322.0515, the rule provides that a request for a wheelchair self-release seatbelt must be honored under certain circumstances, unless the ICF/IID has given all residents notification in accordance with the rule and makes all reasonable efforts to accommodate a resident who requests a seat belt. HHSC considers the rule necessary to implement §322.0515. No change was made to the rule in response to the comment.

Comment: The commenter stated that the rule may result in facilities limiting the use of a wheelchair self-release seatbelt, a device that may keep residents safe and prevent falls. The commenter stated that injuries and accidents should be prevented at all costs and that willing residents should have the right to use a "non-restraint safety device."

Response: A facility is required to protect the health and safety of its residents and may provide a self-release seat belt if such a belt is recommended and approved by a resident's interdisciplinary team, even if the resident has not requested one. In addition, only a facility that states it is otherwise restraint-free may refuse to honor a request for a seat belt under the circumstances described in the rule. Furthermore, if a facility does not honor a request for a seat belt, it must make all reasonable efforts to accommodate the resident who requested it. Therefore, HHSC believes there are adequate safeguards to protect a resident who may benefit from using a wheelchair self-release seat belt. No change was made in response to the comment.

Comment: The commenter asked if the rule applies to a wheelchair that comes equipped with a self-release seat belt.

Response: If the seat belt meets the definition of a "self-release seat belt" in subsection (a) of the rule, then the rule applies to the seat belt.

Comment: The commenter suggested that HHSC clarify that the rule applies only in a facility, not to a seatbelt in a vehicle, such as a van or bus.

Response: HHSC responds that the rule specifically provides that a "self-release seat belt" is a seat belt on a wheelchair. HHSC does not think it is necessary to clarify that the term does not refer to a seat belt in a motor vehicle. No change was made in response to the comment.

In §90.45, the term "legal guardian" is changed to "legally authorized representative," a term that is defined in §90.3(31) as a person authorized by law to act on behalf of a person with regard to a matter described in Chapter 90, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult. The change was made to include parents and managing conservators, in addition to court-appointed guardians, for purposes of requesting and authorizing a self-release seat belt.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code, §252.033, which authorizes HHSC to license ICF/IIDs; and Texas Health and Safety Code, §252.008, which requires the HHSC executive commissioner to adopt rules related to the administration and implementation of Chapter 252; and Texas Health and Safety Code, §322.0515, which requires an ICF/IID to allow a resident to use a wheelchair self-restraint seat belt under certain circumstances.

§90.45.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legally authorized representative requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legally authorized representative, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's individual program plan; or

(3) the resident or the resident's legally authorized representative revokes in writing the authorization for the resident to use the self-release seat belt.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 12, 2017.

TRD-201705104

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: January 1, 2018

Proposal publication date: October 6, 2017

For further information, please call: (512) 438-3334


CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

SUBCHAPTER G. MISCELLANEOUS PROVISIONS

40 TAC §92.128

As required by Texas Government Code, §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all of its functions were transferred to the Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code, §531.0055, requires the executive commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in Title 40, Part 1. Therefore, the executive commissioner of HHSC adopts new §92.128, concerning Wheelchair Self-Release Seat Belts, with changes to the proposed text published in the October 6, 2017, issue of the Texas Register (42 TexReg 5392).

BACKGROUND AND JUSTIFICATION

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code (THSC), as added by House Bill 284 of the 85th Legislature, Regular Session, 2017 (H.B. 284).

The rule requires assisted living facilities to allow residents to use wheelchair self-release seat belts if the resident meets certain conditions. The rule also specifies when an assisted living facility is not required to allow a resident to use a wheelchair self-release seat belt.

COMMENTS

The 30-day comment period ended November 6, 2017. During this period, HHSC received comments regarding the proposed rule from one commenter. A summary of comments and HHSC's responses follow.

Comment: The commenter stated that the rule is not necessary because wheelchair self-release seat belts are not considered restraints and existing rules adequately address the topic.

Response: HHSC has stated in the rule that a wheelchair self-release seat belt is not a restraint because, as defined, it is being used by a resident who has the ability to fasten and release it without assistance. HHSC also notes that H.B. 284 requires the adoption of rules necessary to implement Texas Health and Safety Code, §322.0515, which has specific requirements related to wheelchair self-release seat belts. Consistent with §322.0515, the rule provides that a request for a wheelchair self-release seat belt must be honored under certain circumstances, unless the assisted living facility has given all residents notification in accordance with the rule and makes all reasonable efforts to accommodate a resident who requests a seat belt. HHSC considers the rule necessary to implement §322.0515. No change was made to the rule in response to the comment.

Comment: The commenter stated that the rule may result in facilities limiting the use of a wheelchair self-release seat belt, a device that may keep residents safe and prevent falls. The commenter stated that injuries and accidents should be prevented at all costs and that willing residents should have the right to use a "non-restraint safety device."

Response: An assisted living facility is required to protect the health and safety of its residents and may provide a self-release seat belt if such a belt is recommended and approved by a resident's physician or the person responsible for making health care decisions for the resident, even if the resident has not requested one. In addition, only a facility that states it is otherwise restraint-free may refuse to honor a request for a seat belt under the circumstances described in the rule. Furthermore, if a facility does not honor a request for a seat belt, it must make all reasonable efforts to accommodate the resident who requested it. Therefore, HHSC believes there are adequate safeguards to protect a resident who may benefit from using a wheelchair self-release seat belt . No change was made in response to the comment.

Comment: The commenter asked if the rule applies to a wheelchair that comes equipped with a self-release seat belt.

Response: If the seat belt meets the definition of a "self-release seat belt" in subsection (a) of the rule, then the rule applies to the seat belt.

Comment: The commenter suggested that HHSC clarify that the rule applies only in a facility, not to a seat belt in a vehicle, such as a van or bus.

Response: The rule specifically provides that a "self-release seat belt" is a seat belt on a wheelchair. HHSC does not think it is necessary to clarify that the term does not refer to a seat belt in a motor vehicle. No change was made in response to the comment.

In §92.128(b)(3), the term "program plan" was changed to "service plan," a term defined in §92.2(57). A service plan is a written description of the medical care, supervision, or nonmedical care needed by a resident in a facility described in Chapter 92. The change was made to ensure that an assisted living facility reviews and complies with a resident's service plan for purposes of honoring a request to use a wheelchair self-release seat belt.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code, §247.025, which authorizes the licensing of assisted living facilities; and Texas Health and Safety Code §322.0515, which requires an assisted living facility to allow residents to use a wheelchair self-release seat belt under certain circumstances.

§92.128.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual service plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's individual service plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 12, 2017.

TRD-201705105

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: January 1, 2018

Proposal publication date: October 6, 2017

For further information, please call: (512) 438-3334