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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

  (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.


Source Note: The provisions of this §3.101 adopted to be effective October 6, 2011, 36 TexReg 6511; amended to be effective April 10, 2012, 37 TexReg 2431; amended to be effective October 29, 2012, 37 TexReg 8595; amended to be effective May 16, 2013, 38 TexReg 2841; amended to be effective November 1, 2014, 39 TexReg 8409; amended to be effective April 7, 2015, 40 TexReg 1988; amended to be effective June 20, 2017, 42 TexReg 3161

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