SECTION 565.33. Restraints

(a) Within 30 calendar days of receiving services from a program provider and annually thereafter, a program provider must:

(1) with the involvement of a physician, identify:

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

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

(C) other factors that must be taken into account if the use of restraint is considered, including the individual's:

(i) cognitive functioning level;

(ii) height;

(iii) weight;

(iv) emotional condition that could contraindicate the use of restraint, including whether the individual has a history of having been physically or sexually abused; and

(v) age;

(2) document the conditions and factors identified in accordance with paragraph (1) of this subsection, and, as applicable, limitations on specific restraint techniques or mechanical restraint devices in the individual's record; and

(3) review and update with a physician, registered nurse (RN), or licensed vocational nurse (LVN), at least annually or when a condition or factor documented in accordance with paragraph (2) of this subsection changes significantly, information in the individual's record related to the identified condition, factor, or limitation.

(b) A program provider may use a restraint:

(1) in a behavioral emergency;

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

(3) during or as a follow-up to a medical or dental procedure or treatment of an injury if the restraint is ordered by the physician or dentist as necessary to protect the individual or others or promote the healing of wounds;

(4) to protect the individual from involuntary self-injury; and

(5) if used as a protective device in accordance with §565.37 of this subchapter (relating to Protective Devices).

(c) A program provider must not use restraint:

(1) in a manner that:

(A) restricts circulation;

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

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

(D) interferes with the individual's ability to communicate;

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

(F) extends muscle groups away from each other;

(G) uses hyperextension of joints;

(H) uses pressure points or pain; or

(I) secures the individual to a stationary object while the individual is in a standing position;

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

(3) for the convenience of a staff member or service provider or other individuals; or

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

(d) If a program provider restrains an individual as provided in subsection (b) of this section, the program provider must:

(1) take into account the conditions, factors, and limitations on specific restraint techniques or mechanical restraint devices documented in accordance with subsection (a)(2) and (3) of this section;

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

(3) safeguard the individual's dignity, privacy, and well-being.

(e) In a circumstance described in subsection (b)(1) or (2) of this section, a program provider may use only a restraint hold in which the individual's limbs are held close to the body to limit or prevent movement and that does not violate the provisions of subsection(c)(1) of this section.

(f) A program provider must release an individual from restraint:

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

(2) if the individual in restraint experiences a medical emergency, as soon as possible as indicated by the medical emergency; or

(3) as soon as an individual in a restraint hold described in subsection (e) of this section who moves toward the floor reaches the floor.

(g) After restraining an individual in a behavioral emergency, a program provider must:

(1) as soon as possible but no later than one hour after the use of restraint, notify an RN or LVN of the restraint;

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

(3) as soon as possible but no later than 24 hours after the use of restraint, notify one of the following persons, if there is such a person, that the individual has been restrained:

(A) the individual's legally authorized representative; or

(B) a person actively involved with the individual, unless the release of this information would violate other law; and

(4) notify the individual's service coordinator by the end of the first business day after the use of restraint.

(h) If, under the Health Insurance Portability and Accountability Act, the program provider is a "covered entity," as defined in 45 Code of Federal Regulations (CFR) §160.103, any notification provided under subsection (g)(3)(B) of this section must be to a person to whom the program provider is allowed to release information under 45 CFR §164.510.

Source Note: The provisions of this §565.33 adopted to be effective June 21, 2023, 48 TexReg 3246