(a) When a behavior therapy program must be developed. An individual's treating psychologist, with input from the individual's interdisciplinary team (IDT), must develop a written behavior therapy program for the individual if:
  (1) the IDT recommends the use of a highly restrictive procedure or other restriction of the individual's rights or privileges to modify or replace a targeted behavior; or
  (2) the individual is receiving medications intended primarily for the treatment of a psychiatric disorder.
(b) Functional analysis.
  (1) The individual's treating psychologist must implement a functional analysis before developing a behavior therapy program.
  (2) If an individual participates in a program outside the state MR facility (e.g., attending public school or working), the functional analysis must involve the outside program. The state MR facility must invite staff of the outside program to participate in the functional analysis.
  (3) The individual's treating psychologist must develop a written protocol if the functional analysis will involve any of the following:
    (A) systematic changes in environmental and biological factors that might adversely impact the individual;
    (B) evaluation of a highly restrictive procedure; or
    (C) a significant risk of injury to the individual or others (e.g., the targeted behavior involves severe self-injury or aggression towards others).
  (4) A written protocol, as required in paragraph (3) of this subsection, must:
    (A) be developed by the treating psychologist;
    (B) describe the specific procedures or environmental variables to be manipulated;
    (C) describe the length of time required for each phase; and
    (D) be reviewed and approved by:
      (i) the individual's IDT;
      (ii) the state MR facility's behavior services director; and
      (iii) the chair of the state MR facility's Human Rights Committee (HRC).
  (5) Before implementing a functional analysis that requires a written protocol a state MR facility must ensure that staff:
    (A) obtain legally adequate consent, consent, or authorization in accordance with §415.407(a) or (b) of this title (relating to Requirement to Obtain Legally Adequate Consent, Consent, or Authorization); and
    (B) document the legally adequate consent, consent, or authorization in the individual's record.
(c) Development of behavior therapy program.
  (1) If an individual participates in a program outside the state MR facility (e.g., attending public school or working), the individual's IDT must invite staff of the outside program to participate in the development of a behavior therapy program that will be implemented while the individual is on the state MR facility campus.
  (2) If the individual's treating psychologist and IDT determine that an individual's behavior therapy program should include a highly restrictive procedure, then the determination of which procedure to use must be based on:
    (A) evidence documented in professional and scientific literature of the probability that the specific technique or procedure:
      (i) will be effective in modifying or replacing a targeted behavior; and
      (ii) is appropriate for an individual's cognitive functioning level, size, weight, known physical, medical, and emotional condition, and age; and
    (B) the results of the functional analysis.
  (3) As required by 40 TAC §90.42(e)(4)(A) (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions), if restraint is the highly restrictive procedure being considered by the individual's IDT as an intervention in a behavior therapy program, a physician must participate on the IDT concur with the IDT's recommendation concerning the use of restraint.
  (4) An individual's behavior therapy program must be developed and implemented as described in this subchapter and 42 CFR §483.450 (Condition of Participation: Client Behavior and Facility Practices).
  (5) The written behavior therapy program must:
    (A) describe the targeted behavior;
    (B) describe reliable and representative baseline data indicating the frequency and severity of the targeted behavior;
    (C) summarize the results of the functional analysis;
    (D) specify behavioral objectives;
    (E) describe detailed procedures for implementation of the behavior therapy program to include:
      (i) the chosen intervention;
      (ii) the recommended replacement behavior and how it is to be introduced; and
      (iii) the techniques to prevent the occurrence of the targeted behavior;
    (F) provide instructions for an evaluation of the individual by a nurse for injuries and overall well-being after the individual is released from restraint, if restraint is the chosen intervention and the IDT determines that an evaluation by a nurse is necessary;
    (G) describe methods for evaluating the program's effectiveness to include collection and analysis of data;
    (H) describe procedures for making timely revisions to the program based on an analysis of data if the specified behavioral objectives are not met; and
    (I) specify the timeframes for reviewing the program.
(d) Review and approval of and consent to a behavior therapy program. Prior to implementation of a behavior therapy program, the state MR facility must ensure that:
  (1) the behavior therapy program is reviewed and approved by:
    (A) the individual's IDT;
    (B) the state MR facility's HRC; and
    (C) the state MR facility's behavior therapy committee;
  (2) staff obtain legally adequate consent, consent, or authorization in accordance with §415.407(a) or (b) of this title (relating to Requirement to Obtain Legally Adequate Consent, Consent, or Authorization); and
  (3) staff document the legally adequate consent, consent, or authorization in the individual's record.
(e) Use of a highly restrictive procedure.
  (1) Except as described in paragraph (2) of this subsection, a behavior therapy program utilizing a highly restrictive procedure will not be approved by an individual's IDT, the state MR facility's HRC, or the state MR facility's behavior therapy committee unless a behavior therapy program that utilizes less restrictive procedures has been systematically attempted and failed to modify or replace the targeted behavior. Procedures for teaching replacement behaviors must be implemented simultaneously.
    (A) If a highly restrictive procedure is being considered, evidence must be present in the individual's record that describes other less restrictive and less intrusive interventions, including verbal or other de-escalative interventions, that have been utilized and found to be ineffective in modifying or replacing the targeted behavior.
    (B) If the highly restrictive procedure being considered is restraint the individual's IDT must:
      (i) obtain written authorization from a physician, advanced practice nurse, or physician assistant stating that the individual has no known physical or medical condition that would constitute a risk to the individual during the use of restraint;
      (ii) consider other factors that might be contraindications to the use of restraint, including the individual's cognitive functioning level, size, weight, emotional condition, including whether the individual has a history of having been physically or sexually abused, and age; and
      (iii) limitations on specific techniques or mechanical devices for restraint as documented in the individual's record in accordance with §415.355(b)(2) and (c) of this title (relating to General Principles for the Use of Restraint).
    (C) If the individual's medical condition changes and becomes a contraindication to the use of restraint, the physician must review the authorization.
    (D) The state MR facility's HRC must approve any significant increase in the intensity or duration of a highly restrictive procedure, unless the behavior therapy program specifies the conditions under which an increase may occur.
  (2) If an individual's inappropriate behavior is so severe (i.e., life threatening) or of such duration that other therapeutic approaches are currently precluded, the individual's IDT, the HRC, and the behavior therapy committee may approve and the state MR facility may implement a behavior therapy program that utilizes a highly restrictive procedure without first attempting a behavior therapy program that utilizes less restrictive procedures.
(f) Monitoring by qualified mental retardation professional (QMRP).
  (1) The individual's QMRP, as defined in 42 CFR §483.430(a), concerning qualified mental retardation professional, must review the behavior therapy program to assess whether the specified behavioral objectives are being met:
    (A) during the quarterly review of the Individual Plan of Care; or
    (B) more frequently, if the QMRP believes changes in the individual's behavior, functioning level, or physical, or medical condition warrant it.
  (2) If the individual's QMRP determines that the behavioral objectives specified in the program are not being met, or that significant changes in the individual's behavior, functioning level, or physical or medical condition have occurred, the QMRP must notify the individual's treating psychologist.

Source Note: The provisions of this §5.406 adopted to be effective June 23, 2004, 29 TexReg 5939; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841