S.B. No. 325
AN ACT
relating to the management of behavior of residents of certain
facilities; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 4, Health and Safety Code, is
amended by adding Chapter 322 to read as follows:
CHAPTER 322. USE OF RESTRAINT AND SECLUSION IN CERTAIN
HEALTH CARE FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 322.001. DEFINITIONS. In this chapter:
(1) "Facility" means:
(A) a child-care institution, as defined by
Section 42.002, Human Resources Code, including a state-operated
facility, that is a residential treatment center or a child-care
institution serving children with mental retardation;
(B) an intermediate care facility licensed by the
Department of Aging and Disability Services under Chapter 252 or
operated by that department and exempt under Section 252.003 from
the licensing requirements of that chapter;
(C) a mental hospital or mental health facility,
as defined by Section 571.003;
(D) an institution, as defined by Section
242.002;
(E) an assisted living facility, as defined by
Section 247.002; or
(F) a treatment facility, as defined by Section
464.001.
(2) "Health and human services agency" means an agency
listed in Section 531.001, Government Code.
(3) "Seclusion" means the involuntary separation of a
resident from other residents and the placement of the resident
alone in an area from which the resident is prevented from leaving.
[Sections 322.002-322.050 reserved for expansion]
SUBCHAPTER B. RESTRAINTS AND SECLUSION
Sec. 322.051. CERTAIN RESTRAINTS PROHIBITED. (a) A person
may not administer to a resident of a facility a restraint that:
(1) obstructs the resident's airway, including a
procedure that places anything in, on, or over the resident's mouth
or nose;
(2) impairs the resident's breathing by putting
pressure on the torso; or
(3) interferes with the resident's ability to
communicate.
(b) A person may use a prone or supine hold on the resident
of a facility only if the person:
(1) limits the hold to no longer than the period
specified by rules adopted under Section 322.052;
(2) uses the hold only as a last resort when other less
restrictive interventions have proven to be ineffective; and
(3) uses the hold only when an observer, who is trained
to identify the risks associated with positional, compression, or
restraint asphyxiation and with prone and supine holds and who is
not involved in the restraint, is ensuring the resident's breathing
is not impaired.
(c) Small residential facilities and small residential
service providers are exempt from Subsection (b)(3).
Sec. 322.052. ADOPTION OF RESTRAINT AND SECLUSION
PROCEDURES. (a) For each health and human services agency that
regulates the care or treatment of a resident at a facility, the
executive commissioner of the Health and Human Services Commission
shall adopt rules to:
(1) define acceptable restraint holds that minimize
the risk of harm to a facility resident in accordance with this
subchapter;
(2) govern the use of seclusion of facility residents;
and
(3) develop practices to decrease the frequency of the
use of restraint and seclusion.
(b) The rules must permit prone and supine holds only as
transitional holds for use on a resident of a facility.
(c) A facility may adopt procedures for the facility's use
of restraint and seclusion on a resident that regulate, more
restrictively than is required by a rule of the regulating health
and human services agency, the use of restraint and seclusion.
Sec. 322.053. NOTIFICATION. The executive commissioner of
the Health and Human Services Commission by rule shall ensure that
each resident at a facility regulated by a health and human services
agency and the resident's legally authorized representative are
notified of the rules and policies related to restraints and
seclusion.
Sec. 322.054. RETALIATION PROHIBITED. (a) A facility may
not discharge or otherwise retaliate against:
(1) an employee, client, resident, or other person
because the employee, client, resident, or other person files a
complaint, presents a grievance, or otherwise provides in good
faith information relating to the misuse of restraint or seclusion
at the facility; or
(2) a client or resident of the facility because
someone on behalf of the client or resident files a complaint,
presents a grievance, or otherwise provides in good faith
information relating to the misuse of restraint or seclusion at the
facility.
(b) A health and human services agency that registers or
otherwise licenses or certifies a facility may:
(1) revoke, suspend, or refuse to renew the license,
registration, or certification of a facility that violates
Subsection (a); or
(2) place on probation a facility that violates
Subsection (a).
(c) A health and human services agency that regulates a
facility and that is authorized to impose an administrative penalty
against the facility under other law may impose an administrative
penalty against the facility for violating Subsection (a). Each
day a violation continues or occurs is a separate violation for
purposes of imposing a penalty. The amount of the penalty may not
exceed the maximum amount that the agency may impose against the
facility under the other law. The agency must follow the procedures
it would follow in imposing an administrative penalty against the
facility under the other law.
(d) A facility may contest and appeal the imposition of an
administrative penalty under Subsection (c) by following the same
procedures the facility would follow in contesting or appealing an
administrative penalty imposed against the facility by the agency
under the other law.
Sec. 322.055. MEDICAID WAIVER PROGRAM. A Medicaid waiver
program provider, when providing supervised living or residential
support, shall comply with this chapter and rules adopted under
this chapter.
SECTION 2. Subchapter B, Chapter 242, Health and Safety
Code, is amended by adding Section 242.0373 to read as follows:
Sec. 242.0373. RESTRAINT AND SECLUSION. A person providing
services to a resident of an institution shall comply with Chapter
322 and the rules adopted under that chapter.
SECTION 3. Subchapter B, Chapter 247, Health and Safety
Code, is amended by adding Section 247.0255 to read as follows:
Sec. 247.0255. RESTRAINT AND SECLUSION. A person providing
services to a resident of an assisted living facility shall comply
with Chapter 322 and the rules adopted under that chapter.
SECTION 4. Subchapter A, Chapter 252, Health and Safety
Code, is amended by adding Section 252.0085 to read as follows:
Sec. 252.0085. RESTRAINT AND SECLUSION. A person providing
services to a resident of a facility licensed by the department
under this chapter or operated by the department and exempt under
Section 252.003 from the licensing requirements of this chapter
shall comply with Chapter 322 and the rules adopted under that
chapter.
SECTION 5. Subchapter A, Chapter 464, Health and Safety
Code, is amended by adding Section 464.0095 to read as follows:
Sec. 464.0095. RESTRAINT AND SECLUSION. A person providing
services to a client at a treatment facility shall comply with
Chapter 322 and the rules adopted under that chapter.
SECTION 6. Chapter 571, Health and Safety Code, is amended
by adding Section 571.0067 to read as follows:
Sec. 571.0067. RESTRAINT AND SECLUSION. A person providing
services to a patient of a mental hospital or mental health facility
shall comply with Chapter 322 and the rules adopted under that
chapter.
SECTION 7. Subchapter C, Chapter 42, Human Resources Code,
is amended by adding Section 42.0422 to read as follows:
Sec. 42.0422. RESTRAINT AND SECLUSION. A person providing
services to a resident of a child-care institution, including a
state-operated facility that is a residential treatment center or a
child-care institution serving children with mental retardation,
shall comply with Chapter 322, Health and Safety Code, and the rules
adopted under that chapter.
SECTION 8. (a) In this section:
(1) "Emergency" means a situation in which attempted
preventive de-escalatory or redirection techniques have not
effectively reduced the potential for injury and it is immediately
necessary to intervene to prevent:
(A) imminent probable death or substantial
bodily harm to the person because the person overtly or continually
threatens or attempts to commit suicide or threatens or attempts to
commit serious bodily harm; or
(B) imminent physical harm to another because the
person overtly or continually makes or commits threats, attempts,
or other acts.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(3) "Facility" means:
(A) a facility as defined by Section 322.001,
Health and Safety Code, as added by this Act;
(B) a facility under the jurisdiction of the
Texas Youth Commission; or
(C) a public or private juvenile detention or
correctional facility regulated by the Texas Juvenile Probation
Commission under Chapter 141, Human Resources Code.
(4) "Health and human services agency" means a health
and human services agency listed in Section 531.001, Government
Code, that regulates the care or treatment of a resident of a
facility.
(b) The executive commissioner shall establish a work group
to recommend best practices in policy, training, safety, and risk
management for the Texas Youth Commission, the Texas Juvenile
Probation Commission, or a health and human services agency to
adopt to govern the management of facility residents' behavior.
(c) The executive commissioner shall determine the number
of members to serve on the work group. The executive commissioner
shall appoint as members of the work group:
(1) a representative of the Department of State Health
Services;
(2) a representative of the Department of Aging and
Disability Services;
(3) a representative of the Department of Family and
Protective Services;
(4) a representative of the Texas Youth Commission;
(5) a representative of the Texas Education Agency;
(6) a representative of the Texas Juvenile Probation
Commission;
(7) a representative of this state's protection and
advocacy system established as required by 42 U.S.C. Section 15043
who is appointed by the administrative head of that system; and
(8) additional members who are recognized experts or
who represent the interests of facility residents, including
advocates, family members, physicians, representatives of
hospitals licensed under Chapter 241 or 577, Health and Safety
Code, social workers, and psychiatric nurses.
(d) The work group shall study and make recommendations on:
(1) the development of a comprehensive reporting
system that:
(A) collects and analyzes data related to the use
of:
(i) physical, behavioral, and
de-escalation interventions by employees of a facility to manage
the behavior of facility residents in an emergency; and
(ii) medication administered by employees
to a facility resident without the resident's consent in an
emergency;
(B) complies with federal reporting
requirements;
(C) documents the death or serious injury of a
facility resident related to physical intervention, seclusion, or
restraint, including the administration of medication, by an
employee; and
(D) documents the death or serious injury of an
employee during a physical intervention, seclusion, or restraint;
(2) the prevention of the death of or serious injury to
facility residents related to physical intervention or restraint;
(3) de-escalation techniques and minimum standards to
manage the behavior of facility residents in an emergency
situation;
(4) best practices for physical, behavioral, and
de-escalation interventions by employees that include specific
holds and techniques for the physical restraint of facility
residents;
(5) best practices related to specific populations,
including any consideration that should be given to a facility's
community or institutional setting; and
(6) best practices related to seclusion of facility
residents.
(e) In recommending the best practices, the work group
shall:
(1) focus on the physical, behavioral, and
de-escalation interventions used by facility employees to manage
the behavior of facility residents in an emergency; and
(2) support uniformity in definitions, reporting, and
training used by the Texas Youth Commission, the Texas Juvenile
Probation Commission, and health and human services agencies.
(f) The executive commissioner shall:
(1) not later than November 1, 2005, establish the
work group under Subsection (b) of this section;
(2) not later than June 1, 2006, adopt rules necessary
to implement Chapter 322, Health and Safety Code, as added by this
Act;
(3) not later than July 1, 2006, file with the
appropriate committees of the senate and the house of
representatives a report that describes the work group's
recommended best practices;
(4) not later than November 1, 2006, adopt rules
necessary to implement the best practices recommended by the work
group; and
(5) not later than January 1, 2007, file with the
appropriate committees of the senate and the house of
representatives for consideration by the 80th Legislature a report
that describes the actions taken by the Texas Youth Commission, the
Texas Juvenile Probation Commission, and health and human services
agencies to implement the best practices recommended by the work
group.
SECTION 9. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 325 passed the Senate on
April 21, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 325 passed the House on
May 25, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor