(a) Except as provided in §565.35 of this subchapter (relating to Enclosed Beds), if a protective device is used, the program provider must ensure that it is used in accordance with this section.
(b) A program provider must not use a protective device:
  (1) to modify or control an individual's behavior;
  (2) for disciplinary purposes;
  (3) for staff convenience; or
  (4) as a substitute for an effective, less restrictive method.
(c) If a need for a protective device is identified, the program provider must ensure that a physician, occupational therapist, physical therapist, or registered nurse (RN):
  (1) conducts an initial assessment to determine:
    (A) if the individual has a medical need for a protective device;
    (B) that less restrictive methods would be ineffective in protecting the individual, and the reasons for that determination;
    (C) the type of protective device to be used, which must be the least restrictive protective device that will protect the individual;
    (D) the circumstances under which the protective device may be used;
    (E) how to use the protective device and any contraindications specific to the individual;
    (F) how and when to document the use of the protective device; and
    (G) how to monitor the use of the protective device to ensure it is being used in accordance with the assessment; and
  (2) then annually and after any significant change to determine:
    (A) if the individual has a medical need for a protective device;
    (B) that less restrictive methods would be ineffective in protecting the individual, and the reasons for that determination; and
    (C) the type of protective device to be used, which must be the least restrictive protective device that will protect the individual.
(d) Before a program provider uses a protective device, the program provider must:
  (1) obtain and retain in the individual's record:
    (A) an order for the use of the protective device identified in the initial assessment;
    (B) complete initial and subsequent assessments from subsection (c)of this section; and
    (C) consent of the individual or legally authorized representative(LAR) to use the protective device;
  (2) provide oral and written notification to the individual or LAR of the right at any time to withdraw consent for the use of the protective device; and
  (3) develop a policy and procedure to ensure that each service provider who will use the protective device has been trained in the proper use of the protective device, in accordance with the initial assessment.

Source Note: The provisions of this §565.37 adopted to be effective June 21, 2023, 48 TexReg 3246