The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §90.3, concerning definitions, and §90.42, concerning standards for facilities serving persons with mental retardation or related conditions; and proposes new §90.328, concerning retaliation prohibited, in Chapter 90, Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions.

Background and Purpose

The purpose of the amendments and new section is to implement Senate Bill (SB) 325, 79th Legislature, Regular Session, 2005, which added Chapter 322 to the Texas Health and Safety Code. Chapter 322 requires DADS to prohibit certain restraints in a variety of health care facilities, including an intermediate care facility for persons with mental retardation (ICF/MR) licensed by DADS under Chapter 252 of the Texas Health and Safety Code. Chapter 322 also requires HHSC to adopt rules governing ICF/MR that (1) define acceptable restraint holds (referred to as "personal holds" in this proposal), (2) govern the use of seclusion, (3) develop practices to decrease the frequency of the use of restraint and seclusion, (4) permit prone and supine holds only as transitional holds, and (5) ensure that each resident and the resident's legally authorized representative are notified of the rules and policies related to restraints and seclusion. Chapter 322 also prohibits a facility from retaliating against a person because the person in good faith provides information relating to the misuse of restraint or seclusion at the facility or against a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility.

Section-by-Section Summary

The amendment to §90.3 adds definitions for the following terms: behavioral emergency, DADS, legally authorized representative, personal hold, restraint, and seclusion. The amendment also removes the definition for "board" and updates other definitions in the section to correct agency names, agency divisions, and cross-references.

The amendment to §90.42 replaces references to the Texas Department of Human Services (DHS) with references to DADS to reflect the current name of the agency that licenses ICF/MR. In addition, the amendment to §90.42(e)(4) addresses most of the provisions concerning the use of restraint that are required by SB 325. Subsection (e)(4)(A) lists the types of restraint that are prohibited from use in an ICF/MR. Subsection (e)(4)(B) lists the circumstances in which restraint may be used in an ICF/MR. Subsection (e)(4)(C) requires the facility to ensure that a resident's interdisciplinary team follows certain procedures in order to decrease the frequency of the use of restraint, including (1) identifying conditions and factors that might constitute a risk to the resident during the use of restraint or that must be taken into account if the use of restraint is considered, (2) documenting those conditions and factors in the resident's record, (3) documenting any limitations on specific restraint techniques or mechanical restraint devices in the resident's record, and (4) reviewing and updating the identified conditions and factors at least annually. Subsection (e)(4)(D) lists the safeguards a facility must take into account if restraint is used in the facility. Subsection (e)(4)(E) describes the only acceptable personal holds a facility may use during a behavioral emergency or as part of a behavior therapy program, and includes a restriction that prone and supine holds must be used as transitional holds only. Subsection (e)(4)(F) prescribes when a facility must release a resident from restraint. Subsection (e)(4)(G) requires a facility to obtain a physician's order authorizing a restraint by the end of the first business day after the use of restraint in a behavioral emergency. Subsection (e)(4)(H) requires a facility to ensure that each resident and the resident's legally authorized representative are notified of the DADS rules and the facility's policies related to restraint and seclusion. Subsection (e)(4)(I) states that a facility may adopt policies that allow less use of restraint than allowed by DADS' rules.

Texas Health and Safety Code, Chapter 322, requires rules be adopted to govern the use of seclusion. The amendment to §90.3 includes a new definition of seclusion, reflecting the definition used in Chapter 322. Section 92.42(e)(3) already prohibits seclusion in ICF/MR as a means of behavior management; the definition of seclusion as it currently appears in §92.42(e)(3) is proposed for removal given the proposed new definition of seclusion in §90.3.

New §90.328 prohibits an ICF/MR from discharging or retaliating against (1) an employee, resident of the facility, or other person because the employee, resident, or other person in good faith provides information relating to the misuse of restraint or seclusion at the facility; or (2) a resident because someone on behalf of the resident in good faith provides information relating to the misuse of restraint or seclusion at the facility.

Fiscal Note

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and new section are in effect, enforcing or administering the amendments and new section does not have foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

DADS has determined that there is no adverse economic effect on small businesses or micro- businesses or on businesses of any size as a result of enforcing or administering the amendments and new section, because the amendments and new section do not impose new requirements on businesses and do not require the purchase of any new equipment or any increased staff time in order to comply. Additional staff training necessary to implement the new policies and procedures is not expected to have an adverse economic impact, since facilities are already required to provide staff training.

Public Benefit and Costs

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the amendments and new section are in effect, the public benefit expected as a result of enforcing the amendments and new section is that the rights and physical well-being of individuals served in the ICF/MR Program will be better protected through increased oversight and emphasis on the reduction and safe use of restraint and seclusion in ICF/MRs.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the amendments and new section. The amendments and new section will not affect a local economy.

Takings Impact Assessment

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

Public Comment

Questions about the content of this proposal may be directed to Joanne Guard at (512) 438- 3522 in DADS' Regulatory Services Policy Development and Support Unit. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-006, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

Statutory Authority

The amendment is proposed 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; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, Chapter 252, which authorizes DADS to license and regulate ICF/MR, and Chapter 322, which governs the use of restraint and seclusion in certain health care facilities, including ICF/MR.

The amendment affects Texas Government Code, §531.0055 and §531.021; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§252.0085, 322.001, and 322.051 - 322.055.