TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 3. RESPONSIBILITIES OF STATE FACILITIES

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §3.101, concerning Definitions; §3.301, concerning Prohibition of Abuse, Neglect, and Exploitation; and §3.305, concerning Completion of an Investigation, in Title 40, Part 1, Chapter 3, Responsibilities of State Facilities. The amendments to §3.301 and §3.305 are adopted without changes to the proposed text as published in the March 24, 2017, issue of the Texas Register (42 TexReg 1371), and will not be republished. Amendments to §3.101, concerning Definitions, are adopted with changes to the proposed text.

BACKGROUND AND JUSTIFICATION

The amendments clarify responsibilities of a state supported living center and the director of a state supported living center after the Department of Family and Protective Services (DFPS) completes an investigation of alleged abuse, neglect, or exploitation. The amendments add new definitions and amend existing definitions of terms used in Chapter 3. The terms and definitions are consistent with terminology used by DFPS and the Centers for Medicare & Medicaid, the federal agency that oversees certification of facilities participating in the Intermediate Care for Individuals with an Intellectual Disability and Related Conditions Program. The amendments set forth the process that the director of a state supported living center must follow to contest the findings of DFPS regarding an allegation of abuse, neglect, or exploitation at the state supported living center. The amendments also set forth who may obtain a copy of a DFPS investigative report, consistent with DFPS rules. The amendments make editorial changes for clarity and consistency.

COMMENTS

The 30-day comment period ended April 23, 2017. During this period, one comment was received from the Coalition for Nurses in Advanced Practice (CNAP). CNAP requested that "advanced practice nurse" be revised to "advanced practice registered nurse" in the definition of "primary care provider" in §3.101.

The agency agrees and has revised §3.101(60) accordingly. The agency also notes that this change is consistent with the terminology used in the definition of "medical intervention" in §3.101(47).

SUBCHAPTER A. DEFINITIONS

40 TAC §3.101

STATUTORY AUTHORITY

The amendment 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, including DADS.

§3.101.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Abuse--An act or failure to act that, with regard to an individual, meets the definition of "physical abuse," "sexual abuse," or "verbal/emotional abuse" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "abuse," "physical abuse," "sexual abuse," "verbal abuse," "psychological abuse," or "threat" in the Centers for Medicare & Medicaid Services (CMS) State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(2) Administrative death review--An administrative, quality-assurance activity related to the death of an individual to identify non-clinical problems requiring correction and opportunities to improve the quality of care at a facility.

(3) Allegation--A report by a person suspecting or having knowledge that an individual has been or is in a state of abuse, neglect, or exploitation as defined in this chapter.

(4) Alleged offender--An individual who was committed or transferred to a facility:

(A) under Texas Code of Criminal Procedure, Chapters 46B or 46C, as a result of being charged with or convicted of a criminal offense; or

(B) under Texas Family Code, Chapter 55, as a result of being alleged by petition or having been found to have engaged in delinquent conduct constituting a criminal offense.

(5) Applicant--A person who has applied to be an employee, volunteer, or unpaid professional intern.

(6) Attending physician--The physician who has primary responsibility for the treatment and care of an individual.

(7) Bedroom--The room at a facility in which an individual usually sleeps.

(8) Behavioral crisis--An imminent safety situation that places an individual or others at serious risk of violence or injury if no intervention occurs.

(9) CANRS--The client abuse and neglect reporting system maintained by DADS Consumer Rights and Services.

(10) Capacity--An individual's ability to:

(A) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and

(B) make a decision whether to undergo the proposed treatment.

(11) Chemical restraint--Any drug prescribed or administered to sedate an individual or to temporarily restrict an individual's freedom of movement for the purpose of managing the individual's behavior.

(12) Child--An individual less than 18 years of age who is not and has not been married and who has not had the disabilities of minority removed pursuant to Texas Family Code, Chapter 31.

(13) Clinical death review--A clinical, quality-assurance, peer review activity related to the death of an individual and conducted in accordance with statutes that authorize peer review in Texas to identify clinical problems requiring correction and opportunities to improve the quality of care at a facility.

(14) Clinical practice--The demonstration of professional competence in nursing, dental, pharmacy, or medical practice as described in the relevant chapter of the Texas Occupations Code.

(15) Confirmed--Term used to describe an allegation that DFPS determines is supported by a preponderance of the evidence.

(16) Contractor--A person who contracts with a facility to provide services to an individual, including an independent school district that provides educational services at the facility.

(17) Conviction--The adjudication of guilt for a criminal offense.

(18) Covert electronic monitoring--Electronic monitoring that is not open and obvious, and that is conducted when the director of the facility in which the monitoring is being conducted has not been informed about the device by the individual, by a person who placed the device in the bedroom, or by a person who uses the device.

(19) Crisis intervention--The use of interventions, including physical, mechanical, or chemical restraint, in a behavioral crisis, after less restrictive measures have been determined to be ineffective or not feasible.

(20) Crisis intervention plan--A component of the individual support plan (ISP) action plan that provides instructions for staff on how to effectively and safely use restraint procedures, as long as they are needed to prevent imminent physical injury in a behavioral crisis when less restrictive prevention or de-escalation procedures have failed and the individual's behavior continues to present an imminent risk of physical injury. The plan is developed with input from the PCP and direct support professionals familiar with the individual and the individual and LAR and includes a description of how the individual behaves during a behavioral crisis, along with information about the types of restraints that have been most effective with the individual, staff actions to be avoided because they have been ineffective in the past in preventing or reducing the need for restraints, the restraint's maximum duration, a description of the behavioral criteria for determining when the imminent risk of physical injury abates, and reporting requirements. A crisis intervention plan is not considered a therapeutic intervention. It is implemented only to ensure that restraint procedures are carried out effectively and safely and may be adjusted depending upon the individual's progress in the ISP action plan.

(21) DADS--Department of Aging and Disability Services or its successor agency.

(22) DADS Commissioner--The commissioner of DADS or a position at the Health and Human Services Commission that assumes a duty of the commissioner of DADS described in this chapter.

(23) Deferred adjudication--Has the meaning given to "community supervision" in Texas Code of Criminal Procedure, Article 42.12, §2.

(24) Designated representative--A person designated by an individual or an individual's LAR to be a spokesperson or advocate for the individual.

(25) DFPS--Department of Family and Protective Services or its successor agency.

(26) Director--The director of a facility or the director's designee.

(27) Direct support professional--An unlicensed employee who directly provides services to an individual.

(28) Electronic monitoring--The placement of an electronic monitoring device in an individual's bedroom and making a tape or a recording with the device.

(29) Electronic monitoring device (EMD)--A device that:

(A) includes:

(i) a video surveillance camera; and

(ii) an audio device designed to acquire communications or other sounds; and

(B) does not include an electronic, mechanical, or other device that is specifically used for the nonconsensual interception of wire or electronic communications.

(30) Employee--A person employed by DADS whose assigned duty station is at a facility.

(31) Exploitation--An act or failure to act that, with regard to an individual, meets the definition of "exploitation" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "mistreatment" in the CMS State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(32) Facility--A state supported living center or the intermediate care facility for individuals with an intellectual disability component of the Rio Grande State Center.

(33) Family member--An individual's parent, spouse, children, or siblings.

(34) Forensic facility--A facility designated under Texas Health and Safety Code (THSC), §555.002(a) for the care of high-risk alleged offenders.

(35) Guardian--An individual appointed and qualified as a guardian of the person under Texas Estates Code, Title 3.

(36) High-risk alleged offender--An alleged offender who has been determined to be at risk of inflicting substantial physical harm to another person in accordance with THSC §555.003.

(37) Inconclusive--Term used to describe an allegation when there is not a preponderance of credible evidence to indicate that abuse, neglect, or exploitation did or did not occur due to lack of witnesses or other available evidence.

(38) Independent mortality review organization--An independent organization designated in accordance with Texas Government Code, Chapter 531, Subchapter U, to review the death of an individual.

(39) Individual--A person with an intellectual disability or a condition related to an intellectual disability who is receiving services from a facility.

(40) Individual support plan (ISP)--An integrated, coherent, person-directed plan that reflects an individual's preferences, strengths, needs, and personal vision, as well as the protections, supports, and services the individual will receive to accomplish identified goals and objectives.

(41) Interdisciplinary team (IDT)--A team consisting of an individual, the individual's legally authorized representative (LAR) and qualified developmental disability professional, other professionals dictated by the individual's strengths, preferences, and needs, and staff who regularly and directly provide services and supports to the individual. The team is responsible for assessing the individual's treatment, training, and habilitation needs and making recommendations for services based on the personal goals and preferences of the individual using a person-directed planning process, including recommendations on whether the individual is best served in a facility or community setting.

(42) Legally adequate consent--Consent from a person who:

(A) is not a minor and has not been adjudicated incompetent to manage the person's personal affairs by an appropriate court of law;

(B) has been informed of and understands:

(i) the nature, purpose, consequences, risks, and benefits of the medication, treatment, or procedure for which the consent is given;

(ii) alternatives to the medication, treatment, or procedure for which the consent is given;

(iii) that withdrawing or refusing to give consent will not prejudice the future provision of care and services; and

(iv) the method of administration, if the person is giving consent for an unusual or hazardous treatment procedure, experimental research, organ transplantation, or nontherapeutic surgery; and

(C) consents voluntarily, free from coercion or undue influence.

(43) Legally authorized representative (LAR)--A person authorized by law to act on behalf of an individual, including a parent, guardian, or managing conservator of a minor individual, or a guardian of an adult individual.

(44) Life-sustaining medical treatment--Treatment that, based on reasonable medical judgment, sustains the life of an individual and without which the individual will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered necessary to provide comfort care or any other medical care provided to alleviate an individual's pain.

(45) Mechanical restraint--Any device attached or adjacent to an individual's body that he or she cannot easily remove that restricts freedom of movement or normal access to his or her body. The term does not include a protective device.

(46) Medical emergency--Any illness or injury that requires immediate assessment and treatment by medical staff for conditions considered to be life threatening, including, but not limited to, respiratory or cardiac arrest, choking, extreme difficulty in breathing, status epilepticus, allergic reaction to an insect sting, snake bite, extreme pain in the chest or abdomen, poisoning, hemorrhage, loss of consciousness, sudden loss of function of a body part, injuries resulting in broken bones, possible neck or back injuries, or severe burns.

(47) Medical intervention--Treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician assistant, or advanced practice registered nurse in accordance with general acceptable clinical practice.

(48) Medical restraint--A health-related protection prescribed by a primary care provider (PCP) or dentist that is necessary for the conduct of a specific medical or dental procedure, or is only necessary for protection during the time that a medical or dental condition exists, for the purpose of preventing an individual from inhibiting or undoing medical or dental treatment. Medical restraint includes pre-treatment sedation.

(49) Medical restraint plan--A component of the ISP action plan that provides instructions for staff on how to effectively and safely carry out medical restraint procedures. The plan is developed with input from the PCP or dentist and meaningful input from the individual and LAR and includes a description of the individual's behaviors that do not allow for a safe and effective implementation of needed medical or dental procedures, information about the types of restraints that have been most effective with the individual, a description of the criteria for releasing the restraint, and reporting requirements. A medical restraint plan is not considered a therapeutic intervention and may be adjusted depending upon the individual's progress in the ISP action plan.

(50) Medication-related emergency--A situation in which it is immediately necessary to administer medication to an individual to prevent:

(A) imminent probable death or substantial bodily harm to the individual because the individual:

(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 individual is unable to satisfy the individual's need for nourishment, essential medical care, or self-protection; or

(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the individual overtly or continually makes or commits.

(51) Mental health services provider--Has the meaning assigned in Texas Civil Practice and Remedies Code, Chapter 81.

(52) Neglect--An act or failure to act that, with regard to an individual, meets the definition of "neglect" in Chapter 711, Subchapter A of this title (relating to Introduction), or the definition of "neglect" in the CMS State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, available at www.cms.gov.

(53) Peer review--A review of clinical or professional practice of a doctor, pharmacist, licensed vocational nurse, or registered nurse conducted by his or her professional peers.

(54) Perpetrator--A person who has committed abuse, neglect, or exploitation.

(55) Person--Includes a corporation, organization, governmental subdivision or agency, or any other legal entity.

(56) Physical restraint--Any manual method that restricts freedom of movement or normal access to one's body, including hand or arm holding to escort an individual over his or her resistance to being escorted. Physical restraint does not include brief and limited use of physical guidance, positioning, or prompting techniques used to redirect an individual or assist, support, or protect the individual during a functional therapeutic or physical exercise activity; response blocking and brief redirection used to interrupt an individual's limbs or body without the use of force so that the occurrence of challenging behavior is prevented; holding an individual, without the use of force, to calm or comfort, or hand holding to escort an individual from one area to another without resistance from the individual; and response interruption used to interrupt an individual's behavior, using facility-approved techniques.

(57) Physician on duty--The physician designated by the facility's medical director to provide medical care or respond to emergencies outside regular working hours.

(58) Positive behavior support plan (PBSP)--A comprehensive, individualized plan that contains intervention strategies designed to modify the environment, teach or increase adaptive skills, and reduce or prevent the occurrence of target behaviors through interventions that build on an individual's strengths and preferences, without using aversive or punishment contingencies.

(59) Preponderance of the evidence--Evidence that is of greater weight or more convincing than the evidence that is offered in opposition to it; that is, evidence that, as a whole, shows that the fact sought to be proved is more probable than not.

(60) Primary care provider (PCP)--A physician, advanced practice registered nurse, or physician assistant who provides primary care to a defined population of patients. The PCP is involved in health promotion, disease prevention, health maintenance, and diagnosis and treatment of acute and chronic illnesses.

(61) Prone restraint--Any physical or mechanical restraint that places the individual in a face-down position. Prone restraint does not include when an individual is placed in a face-down position as a necessary part of a medical intervention, or when an individual moves into a prone position during an incident of physical restraint, if staff immediately begin an adjustment to restore the individual to a standing, sitting, or side-lying position or, if that is not possible, immediately release the person. Prone restraint is prohibited.

(62) Protection and advocacy organization--The protection and advocacy system for Texas designated in accordance with the Code of Federal Regulations, Title 45, §1326.20.

(63) Protective mechanical restraint for self-injurious behavior--A type of mechanical restraint applied before an individual engages in self-injurious behavior, for the purpose of preventing or mitigating the danger of the self-injurious behavior because there is evidence that the targeted behavior can result in serious self-injury when it occurs and intensive, one-to-one supervision and treatment have not yet reduced the danger of self-injury. Examples include, but are not limited to, protective head gear for head banging, arm splints for eye gouging, or mittens for hand-biting. The term does not include medical restraints or protective devices.

(64) Protective mechanical restraint plan for self-injurious behavior--A component of the ISP action plan that provides instructions for staff on how to effectively and safely apply the protective mechanical restraint that is used to prevent or mitigate the effects of serious self-injurious behavior. The plan is developed with input from direct support professionals familiar with the individual and meaningful input from the individual and LAR, and includes a description of the individual's self-injurious behaviors, the type of restraint to be used, the restraint's maximum duration, and the circumstances to apply and remove the restraint. The plan must identify any low-risk situations when the restraint may be safely removed, what staff should do during those situations to continue to protect the individual from harm, and adjustments in staff instructions as progress is made for gradually eliminating the use of the restraints, including details on any specialized staff training and reporting. The plan is not considered a therapeutic intervention and is adjusted depending upon the individual's progress in the ISP action plan and an evaluation by the PCP that the individual's behavior is no longer at the dangerous level that is producing serious self-injury.

(65) Psychotropic medication--A medication that is prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorder 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. Psychotropic medication, sometimes referred to as "psychoactive medication," includes the following categories of medication:

(A) antipsychotics or neuroleptics;

(B) antidepressants;

(C) agents for control of mania or depression;

(D) antianxiety agents;

(E) sedatives, hypnotics, or other sleep-promoting drugs; and

(F) psychomotor stimulants.

(66) Registered nurse--A nurse licensed by the Texas Board of Nursing to practice professional nursing in Texas.

(67) Registries--

(A) The Nurse Aide Registry maintained by DADS in accordance with §94.12 of this title (relating to Findings and Inquiries); and

(B) The Employee Misconduct Registry maintained by DADS in accordance with Chapter 93 of this title (relating to Employee Misconduct Registry (EMR)).

(68) Reporter--A person who reports an allegation of abuse, neglect, or exploitation.

(69) Restraint monitor--A designated facility employee who has received competency-based training and demonstrated proficiency in the application and assessment of restraints, who has experience working directly with individuals with developmental disabilities, and who is trained to conduct a face-to-face assessment of the individual who was restrained and the staff involved in the restraint to review the application and results of the restraint.

(70) Retaliation--An action intended to inflict emotional or physical harm or inconvenience on a person including harassment, disciplinary action, discrimination, reprimand, threat, and criticism.

(71) SSLC--A state supported living center.

(72) State office mortality review--A quality assurance activity to review data related to the death of an individual to identify trends, best practices, training needs, policy changes, or facility or systemic issues that need to be addressed to improve services at facilities.

(73) Supine restraint--Any physical or mechanical restraint that places the individual on his or her back. Supine restraint does not include when an individual is placed in a supine position as a necessary part of a medical restraint, or when an individual moves into a supine position during an incident of physical restraint, if staff immediately begin an adjustment to restore the individual to a standing, sitting, or side-lying position or, if that is not possible, immediately release the person. Supine restraint does not include persons who have freedom of movement in a hospital bed or dental chair that is at a reclined position. Supine restraint is prohibited.

(74) THSC--Texas Health and Safety Code.

(75) Treating physician--A physician who has provided medical or psychiatric treatment or evaluation and has an ongoing treatment relationship with an individual.

(76) Unconfirmed--Term used to describe an allegation in which a preponderance of evidence exists to prove that it did not occur.

(77) Unfounded--Term used to describe an allegation that DFPS determines is spurious or patently without factual basis.

(78) Unusual incident--An event or situation that seriously threatens the health, safety, or life of an individual.

(79) Victim--An individual who has been or is alleged to have been abused, neglected, or exploited.

(80) Volunteer--A person who is not part of a visiting group, who has active, direct contact with an individual, and who does not receive compensation from DADS other than reimbursement for actual expenses.

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 May 30, 2017.

TRD-201702127

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: June 20, 2017

Proposal publication date: March 24, 2017

For further information, please call: (512) 438-2106


SUBCHAPTER C. ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §3.301

STATUTORY AUTHORITY

The amendment 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, including DADS.

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 May 30, 2017.

TRD-201702128

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: June 20, 2017

Proposal publication date: March 24, 2017

For further information, please call: (512) 438-2106


40 TAC §3.305

STATUTORY AUTHORITY

The amendment 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, including DADS.

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 May 30, 2017.

TRD-201702129

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: June 20, 2017

Proposal publication date: March 24, 2017

For further information, please call: (512) 438-2106