26 Tex. Admin. Code § 330.15

Current through Reg. 49, No. 49; December 6, 2024

Section 330.15 - Health, Safety, and Rights

(a) Protection of rights. A LIDDA must develop and implement policies and procedures that protect the rights of individuals and are consistent with Chapter 4, Subchapter C of this title (relating to Rights of Individuals with an Intellectual Disability).

(b) Restrictions and limitations placed on an individual.

(1) A LIDDA:

(A) may implement behavioral support that involves restrictions or limitations placed on an individual only in accordance with paragraph (2) of this subsection and subsection (e) of this section;

(B) must comply with subsection (f) of this section when using restraint, and for restraint used under subsection (f)(2)(A) or (B) of this section, also comply with paragraph (2) of this subsection; and

(C) may place another type of restriction or limitation on an individual only if:

(i) the restriction or limitation protects the individual's health or safety that is jeopardized by an identified behavior; and

(ii) the LIDDA complies with paragraphs (2) and (3) of this subsection.

(2) A LIDDA must ensure that any restriction or limitation placed on an individual, except for a restraint used under subsection (f)(2)(C) of this section, is reviewed and approved by the rights protection officer and, at the discretion of the LIDDA, other appropriate staff members who are not on the individual's planning team, before the restriction or limitation is implemented. If a restriction or limitation is implemented in an emergency, including a behavioral emergency, the LIDDA must notify the rights protection officer as soon as possible after implementation.

(3) If a restriction or limitation not required to be in a behavioral support plan is approved in accordance with paragraph (2) of this subsection, the individual's plan of services and supports must:

(A) include the restriction or limitation;

(B) identify the circumstances or criteria to be met that will result in the removal of the restriction or limitation; and

(C) require the planning team to review the restriction or limitation, as necessary but at least annually, to determine appropriateness.

(c) Medication practices. A LIDDA's policies and procedures relating to medication practices must:

(1) be consistent with accepted principles of practice and applicable state laws and regulations to ensure medication is administered safely and appropriately;

(2) be approved in writing by a physician or registered nurse; and

(3) address:

(A) proper handling, storage, and disposal of medications;

(B) proper use of telephone orders if the LIDDA allows for telephone orders;

(C) administration of medications by staff members licensed or authorized to administer medications if the LIDDA allows for administration of medications;

(D) supervision of self-administration of medication by an individual; and

(E) documentation of follow-up and corrective action when medication errors occur.

(d) Informed consent for psychoactive medication. Except as provided by paragraph (2) of this subsection, a physician employed or contracted by a LIDDA may prescribe psychoactive medication for an individual only if the individual or LAR has given written informed consent for the medication.

(1) In seeking informed consent for a psychoactive medication, the prescribing physician must provide the individual and LAR:

(A) an explanation of the medication and its purposes;

(B) the expected beneficial effects, side effects, and risks of the medication;

(C) the probable consequences of not taking the medication;

(D) the existence and value of alternative forms of treatment, if any, and why the physician does not recommend the alternative treatment;

(E) instruction that the individual or LAR may withdraw consent at any time without negative repercussions by a staff member or prejudicing the future provision of services;

(F) an opportunity to ask questions concerning the medication and its use; and

(G) the time period, not to exceed one year, for which the individual's or LAR's consent will be effective.

(2) If an individual or LAR gives informed consent for a psychoactive medication but is physically unable to document the consent in writing, the prescribing physician must document in the individual's record that informed consent was given and the reason such consent was not documented by the individual or LAR.

(3) Prior to changing an individual's medication regimen that would result in a change of medication class or in a significant change in the benefits, side effects, or risks to the individual, the physician must obtain written informed consent from the individual or LAR in accordance with this subsection.

(e) Behavioral support.

(1) A LIDDA's policies and procedures related to behavioral support must include:

(A) the accepted standards of professional practice for the use of behavioral support, including the use of interventions during a behavioral emergency; and

(B) a requirement that a provider of behavioral support:

(i) is licensed as a psychologist in accordance with Texas Occupations Code, Chapter 501;

(ii) is licensed as a psychological associate in accordance with Texas Occupations Code, Chapter 501;

(iii) has been issued a provisional license to practice psychology in accordance with Texas Occupations Code, Chapter 501;

(iv) is a certified authorized provider as described in §5.161 of this title (relating to Certified Authorized Provider);

(v) is licensed as a licensed clinical social worker in accordance with Texas Occupations Code, Chapter 505;

(vi) is licensed as a licensed professional counselor in accordance with Texas Occupations Code, Chapter 503; or

(vii) is certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.

(2) Except as provided by paragraph (4) of this subsection, behavioral support interventions that involve restrictions or limitations placed on an individual or the use of intrusive techniques may only be provided in accordance with an approved written behavioral support plan. The behavioral support plan must:

(A) be based on:

(i) a functional assessment of the individual's behavior targeted by the plan; and

(ii) input from the individual's planning team and other professionals, as appropriate;

(B) describe the interventions to be used that are appropriate to the severity of the behavior targeted by the plan;

(C) be consistent with the outcomes identified in the individual's plan of services and supports;

(D) be approved by the individual's planning team prior to implementation;

(E) be accepted by the individual or LAR as evidenced by the individual's or LAR's written informed consent;

(F) provide for the collection of behavioral data concerning the targeted behavior; and

(G) require the professional who developed the plan to:

(i) educate the individual and LAR and other persons identified by the planning team (for example, family members and providers) regarding the purpose, objectives, methods and documentation of the behavioral support plan and subsequent revisions of the plan;

(ii) monitor and evaluate the success of the behavioral support plan implementation as required by the plan;

(iii) review, with other members of the individual's planning team, the behavioral support plan at least annually, or more often as indicated, to determine the effectiveness of the plan; and

(iv) revise the plan as necessary, based on documented outcomes of the plan's implementation.

(3) In obtaining informed consent as required by paragraph (2)(E) of this subsection, the professional who developed that plan must provide the individual or LAR:

(A) a description of the interventions to be used in the behavioral support plan;

(B) the expected beneficial effects and risks of the interventions;

(C) the probable consequences of not using the interventions;

(D) the existence and value of alternative interventions, if any, and why the professional does not recommend the alternative interventions;

(E) oral and written notification that the individual or LAR may withdraw consent for the behavioral support plan at any time without negative repercussions by a staff member or prejudicing the future provision of services;

(F) an opportunity to ask questions concerning the behavioral support plan; and

(G) the time period, not to exceed one year, for which the individual's or LAR's consent will be effective.

(4) A LIDDA may implement behavioral support that involves restrictions or limitations placed on an individual or the use of intrusive techniques without a behavioral support plan if the support is in response to a behavioral emergency. If such behavioral support is implemented more than twice during two consecutive months, the LIDDA must conduct a functional assessment to determine if a behavioral support plan is needed to reduce the frequency and severity of the behaviors exhibited during the behavioral emergency.

(f) Restraint.

(1) A LIDDA must have and implement a curriculum that ensures staff members are trained in the prevention and management of aggressive behavior. The curriculum must be consistent with the requirements of this subsection.

(2) A staff member may use restraint only under the following circumstances:

(A) in a behavioral emergency;

(B) as part of a behavioral support plan that addresses inappropriate behavior exhibited voluntarily by an individual; or

(C) in accordance with an order for the restraint from a physician, dentist, occupational therapist, or physical therapist.

(3) A staff member is prohibited from using restraint:

(A) in a manner that:

(i) obstructs the individual's airway, including the placement of anything in, on, or over the individual's mouth or nose;

(ii) impairs the individual's breathing by putting pressure on the individual's torso; or

(iii) places the individual in a prone or supine position;

(B) for disciplinary purposes (that is, for retaliation or retribution);

(C) for the convenience of a staff member or other individuals; or

(D) as a substitute for effective treatment or habilitation.

(4) If restraint will be used as part of a behavioral support plan, the planning team must:

(A) with the involvement of a physician or registered nurse, identify and document:

(i) the individual's known physical or medical conditions that might constitute a risk to the individual during the use of restraint;

(ii) the individual's ability to communicate; and

(iii) other factors, such as the individual's:

(I) cognitive functioning level;

(II) height;

(III) weight;

(IV) emotional condition, including whether the individual has a history of having been physically or sexually abused; and

(V) age; and

(B) review and update with a physician or registered nurse, at least annually or when a condition or factor documented in accordance with paragraph (4)(A) of this subsection changes significantly.

(5) If restraint is used in a behavioral emergency more than twice during two consecutive months, the planning team must ensure a functional assessment of the individual is conducted to determine if a behavioral support plan is needed to reduce the frequency and severity of the behaviors exhibited during the behavioral emergency.

(6) If a staff member restrains an individual in accordance with paragraph (2) of this subsection, the staff member must:

(A) use the minimal amount of force or pressure that is reasonable and necessary to ensure the safety of the individual and others;

(B) safeguard the individual's dignity, privacy, and well-being; and

(C) not secure the individual to a stationary object while the individual is in a standing position.

(7) If a staff member restrains an individual in accordance with paragraph (2)(A) or (B) of this subsection, the staff member may only use a restraint hold in which the individual's limbs are held close to the body to limit or prevent movement and that is in compliance with paragraph (3)(A) of this subsection.

(8) A staff member must release an individual from restraint:

(A) as soon as the individual no longer poses a risk of imminent physical harm to the individual or others; or

(B) as soon as possible if the individual in restraint experiences a medical emergency, as indicated by the medical emergency.

(9) After restraining an individual in a behavioral emergency, a staff member must:

(A) as soon as possible but no later than one hour after the use of restraint, notify a registered nurse, licensed vocational nurse, or a professional identified in subsection (e)(1)(B) of this section of the restraint;

(B) ensure that medical services are obtained for the individual as necessary; and

(C) discuss the circumstances of the restraint with a professional identified in subsection (e)(1)(B) of this section.

26 Tex. Admin. Code § 330.15

Transferred from 40 TAC § 2.313 Texas Register, Volume 49, Number 24, June 14, 2024, TexReg 4433, eff. 7/15/2024