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TITLE 40SOCIAL SERVICES AND ASSISTANCE
PART 1DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 3RESPONSIBILITIES OF STATE FACILITIES
SUBCHAPTER ADEFINITIONS
RULE §3.101Definitions

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.

Cont'd...

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