SECTION 5.407. Requirement to Obtain Legally Adequate Consent, Consent, or Authorization

(a) Except as provided in subsection (b) of this section, a state MR facility must obtain legally adequate consent or consent in accordance with this subsection before implementing a functional analysis that requires a written protocol or a behavior therapy program.

(1) If an individual has the ability to provide legally adequate consent, the state MR facility will attempt to obtain legally adequate consent from the individual.

(2) If an individual lacks the ability to provide legally adequate consent and has an LAR, the state MR facility will make reasonable attempts to obtain consent from the LAR.

(3) Efforts taken by the state MR facility to obtain legally adequate consent from an individual or consent from an LAR must be documented in the individual's record.

(b) The head of the state MR facility, in accordance with Texas Health and Safety Code, §592.054, may authorize implementation of a functional analysis that requires a written protocol or a behavior therapy program only if:

(1) the individual lacks the ability to provide legally adequate consent and does not have an LAR; or

(2) the individual lacks the ability to provide legally adequate consent and the individual's LAR:

(A) has not responded to the state MR facility's attempts to obtain the LAR's consent; and

(B) has been notified that the head of the state MR facility may authorize implementation of a behavior therapy program if the LAR does not respond.

(c) An individual with the ability to provide legally adequate consent or the LAR of an individual who lacks the ability to provide legally adequate consent may:

(1) withhold consent to the implementation of a functional analysis that requires a written protocol or a behavior therapy program; or

(2) withdraw consent at any time to the continued implementation of a functional analysis that requires a written protocol or a behavior therapy program.

(d) If legally adequate consent is withheld or withdrawn by an individual or if consent is withheld or withdrawn by an LAR as described in subsection (c) of this section:

(1) state MR facility staff must document in the individual's record the time, date, and circumstances under which the withholding or withdrawal of consent occurred; and

(2) the individual's IDT must convene to discuss alternative interventions to address the targeted behavior.

(e) The consent or authorization to implement a behavior therapy program must be reviewed by the individual's IDT and the state MR facility's HRC at least annually and upon any substantive modification of the program or significant change in the individual's medical condition.

Source Note: The provisions of this §5.407 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