HBA-MSH C.S.S.B. 876 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 876 By: Moncrief Public Health 5/18/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Each health and human services agency promulgates its own rules regarding the appropriate use of restraints and seclusion in psychiatric and medical facilities and psychiatric residential treatment centers. The lack of consistency among agencies raises concerns related to possible injury or death associated with the use of restraints and seclusion, particularly in cases involving children. C.S.S.B. 876 provides for consistent standards for health care facilities in the state. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to health and human services agencies that regulate the care or treatment of residents of certain facilities in SECTION 1 (Sections 322.004, 322.006, and 322.007; Health and Safety Code) and SECTION 2 and to the Health and Human Services Commission in SECTION 1 (Sections 322.010, Health and Safety Code) of this bill. ANALYSIS C.S.S.B. 876 amends the Health and Safety Code to require a health and human services agency (agency) that regulates the care or treatment of residents of certain child-care institutions, intermediate care facilities, mental hospitals or mental health facilities, nursing facilities, or assisted living facilities (facilities) by rule to adopt procedures for administering mechanical restraint, personal restraint, seclusion, emergency psychoactive medication, and supportive and protective devices. The bill provides that the procedures must be consistent with the provisions of this bill and with the right of a resident to be free from physical or mental abuse, corporal punishment, and the use of restraints or seclusion as punishment, as a substitute for treatment or habilitation, for the convenience of facility staff, or to compensate for a lack of facility staff. The bill requires a facility to provide to its staff, annually or more frequently if necessary, competency-based training on the prevention and de-escalation of a resident's aggressive behavior and the safe administration of mechanical and personal restraints. The bill requires a facility to report to the appropriate law enforcement or regulatory agencies for investigation each death of or serious injury to a resident that occurs during the administration of, or less than 48 hours after the termination of the administration of, restraint, seclusion, or emergency psychoactive medication to the resident. The bill requires an agency to collect information each quarter related to the facility's administration to the facility's residents in emergencies of mechanical restraint, seclusion, and psychoactive medication. The bill requires an agency to submit annually an analysis of the information collected under these provisions to the Health and Human Services Commission (HHSC), the governor, and the presiding officer of each house of the legislature. The bill requires the agencies by rule to adopt methods and procedures for the reports and analysis. The bill prohibits a person from administering a physical or mechanical restraint to a resident that maintains the resident in a face-down posture while pressure is placed on the resident's back, obstructs the resident's airway, impairs the resident's breathing, or restricts the resident's ability to communicate. The bill requires the commissioner of health and human services and the agencies to execute a memorandum of understanding not later than March 1, 2002 to ensure that procedures and definitions of terms adopted by the agencies in rules under these provisions are consistent. The bill requires HHSC to adopt the memorandum by rule. The bill requires the commissioner of health and human services and the agencies to review the memorandum annually and revise the memorandum as necessary. The bill requires an agency to adopt rules as necessary to implement this bill no later than December 31, 2002. In adopting rules that affect a facility under the jurisdiction of the agency, an agency is required to use the procedures provided by the Negotiated Rulemaking Act. EFFECTIVE DATE December 31, 2002. Provisions related to negotiated rulemaking authority, the memorandum of understanding, and adopting rules to implement the Act take effect September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 876 differs from the original by specifying that the legislative findings of the bill are not intended to contravene federal guidelines regarding the use of restraints or seclusion. The substitute adds a definition of "resident' to mean a person who receives care or treatment in a facility. The substitute requires a health and human services agency that regulates the care and treatment of residents (agency) to collect information on the administration in emergencies of mechanical restraint rather than just restraint. The substitute requires the commissioner of health and human services and the agencies to execute the initial memorandum of understanding not later than March 1, 2002. The substitute requires an agency to adopt rules to implement the bill not later than December 31 rather than March 1, 2002. The substitute changes the effective date.