COMMENT DUE DATE:
February 15, 2018
DATE:
January 16, 2018
Ray Hester Developmental Disabilities Services 405-521-4968
Dena Thayer, Programs Administrator 405-521-4326
RE:
APA WF 18-100
The proposed policy is Permanent . This proposal is subject to Administrative Procedures Act
A public hearing is scheduled for 10:00 a.m. on February 21, 2018, at DHS, Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105, Room C-48.Anyone who wants to speak must sign in at the door by 10:05 a.m.
SUBJECT:CHAPTER 100. DEVELOPMENTAL DISABILITIES SERVICES
Subchapter 3. Administration
Part 1. General Administration
340:100-3-16 [AMENDED]
Subchapter 5. Client Services
Part 3. Service Provisions
340:100-5-26.1[AMENDED]
Part 5. Individual Planning
340:100-5-57 [AMENDED]
Subchapter 6. Group Home Regulations
Part 7. Environmental Health, Safety, and Sanitation Requirements
340:100-6-41 [AMENDED]
(Reference WF 18-06)
SUMMARY:The proposed amendments to Chapter 100, Subchapters 3, 5, and 6 amend rules to implement changes recommended during the annual Developmental Disabilities Services (DDS) rule review process.
PERMANENT APPROVAL:Permanent rulemaking is requested.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues; and Sections, 441.301 and 441.302 of Title 42 of the Code of Federal Regulations.
Rule Impact Statement
To:Programs administrator
Legal Services Policy
From:Marie Moore,Interim Director
Developmental Disabilities Services
Date:December 18, 2017
Re:CHAPTER 100. DEVELOPMENTAL DISABILITIES SERVICES
Subchapter 3. Administration
Part 1. General Administration
340:100-3-16 [AMENDED]
Subchapter 5. Client Services
Part 3. Service Provisions
340:100-5-26.1[AMENDED]
Part 5. Individual Planning
340:100-5-57 [AMENDED]
Subchapter 6. Group Home Regulations
Part 7. Environmental Health, Safety, and Sanitation Requirements
340:100-6-41 [AMENDED]
(Reference WF 18-06)
Contact: Ray Hester 405-521-4968
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed amendments to Chapter 100, Subchapters 3, 5, and 6 amend rules to implement changes recommended during the annual Developmental Disabilities Services (DDS) rule review process.
Strategic Plan Impact.
The proposed amendments position Oklahoma Department of Human Services (DHS) DDS to improve services.The amendments support DDS goals of improving the quality of life of vulnerable Oklahomans by increasing individuals' abilities to lead safer, healthier, and more independent, productive lives.The proposed amendments comply with federal requirements.
Substantive changes.
Subchapter 3. Administration
Part 1. General Administration
Oklahoma Administrative Code (OAC) 340:100-3-16 is amended to match the insurance and indemnification amounts set forth in the provider's contract for services.The amounts were not increased from the established amounts in the provider's contract for services.
Subchapter 5. Client Services
Part 3. Service Provisions
OAC 340:100-5-26.1 is amended to ensure that any service recipient's Personal Support Team (Team) notifies the DDS director of pharmacy services and requests a pharmacy review within five-working days when a medication is ordered to be administered p.r.n. for behavioral control.
Part 5. Individual Planning
OAC 340:100-5-57 is amended to ensure restraints are only allowed when specific requirements are followed.The Centers for Medicare and Medicaid Services (CMS) reviewed this administrative rule and determined it conflicts with Section 441.301(c)(viii)(A) through (H) of Title 42 of the Code of Federal Regulations (42 C.F.R §41.301(c) (viii)(A) through (H)).Per CMS guidance restraint may be allowed when modification to the Home and Community Based Services (HCBS) settings requirements for settings is expressly documented in the person-centered service plan.The amendments specify that physical management is only used to prevent physical injury when it is supported by a specific assessed need, and documented in the person-centered plan.The amendments also specify that the Team begins planning upon notification of a discharge date from a psychiatric hospital, and a meeting is held within five-business days following discharge to address medication changes when they occur.
Subchapter 6. Group Home Regulations
Part 7. Environmental Health, Safety, and Sanitation Requirements
OAC 340:100-6-41 is amended to ensure the rule does not conflict with an individual's right to have visitors of his or her choosing at any time unless the 42 C.F.R §41.301(c)(4)(vi)(F) requirements have been met.CMS reviewed the current administrative rule and determined it conflicts with the rights of an individual to have visitors of his or her choosing at any time.
Reasons.
The proposed amendments update and clarify DDS rules in accordance with federal and state laws. OAC 340:100-5-57 and 340:100-6-41 are amended based on CMS feedback.
Repercussions.
The proposed amendments contribute to the health and safety of vulnerable Oklahomans.The proposed amendments position Oklahoma to achieve milestones for compliance with the CMS settings criteria.Amendments to OAC 340:100-5-57 and 340:100-6-41 are required by CMS to obtain Statewide Transition Plan approval. Failure to amend the proposed rules could result in a loss of federal funding.
Legal authority.
Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues; and Sections, 441.301 and 441.302 of Title 42 of the Code of Federal Regulations.
Permanent rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons affected by the proposed amendments are individuals receiving DDS, who bear no costs associated with the implementation of the rule.
C.A description of the classes of persons who will benefit from the proposed rule:The classes of persons who benefit are individuals receiving DDS.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There is no economic impact on individuals who receive DDS.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to DHS includes the cost of printing and distributing the rules, estimated to be less than $20.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed amendments do not have an impact on any political subdivisions or require their cooperation in enforcing the rules.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:The proposed amendments do not have an adverse effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:The proposed amendments do not increase compliance costs.There are no less costly, non-regulatory, or less intrusive methods.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:The proposed amendments bring the rules into compliance with federal and state law, thereby increasing program effectiveness positively impacting the health, safety, and well-being of affected individuals.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:If the proposed amendments are not implemented, the rules will not be in compliance with federal and state laws.The proposals are intended to comply with federal and state laws, thereby contributing to the health, safety, and well-being of vulnerable Oklahomans.
K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared May 15, 2017; modified December 18, 2017.
SUBCHAPTER 3. ADMINISTRATION
PART 1. GENERAL ADMINISTRATION
OAC 340:100-3-16.Provider enrollment
Issued 7-1-12Revised 9-15-18
(a) Eligible providers.The SoonerCare Home and Community-Based Services (HCBS) Waiver programs are authorized per Section 1915(c) of the Social Security Act.All providers must have a current provider agreementagreements with the Oklahoma Health Care Authority (OHCA) to provide HCBS for persons with intellectual disabilities or related conditions.
(b) Application.Requests for applications to provide daily living supports, agency companion, supported living, group home, habilitation training services (HTS), homemaker, and employment services are made to the Oklahoma Department of Human Service (DHS) Developmental Disabilities Services Division (DDSD) state office(DDS) State Office.Applications must include a narrative describing the applicant's:
(1) existing program, when applicable;
(2) philosophy of services and supportsservice and support philosophies for persons with intellectual disabilities;
(3) proposed plan for providing HCBS,requested in the applicationin compliance with Oklahoma Administrative Code (OAC) 317:40-1-3;
(4) quality assurance program, commitment to OKDHSDDS quality assurance processes, and compliance with OAC 340:100-3-27, et. seq. compliance; and
(5) organizational summary and operational plan, including:
(A) the anticipated number of persons to be served in the first three months, first six months, and the first year of operation;
(B) the counties to be served;
(C) an organizational chart and a key personnel roster of key personnel; and
(D) evidence of the agency'sapplicant's plan for compliance with the United States (U.S.) Internal Revenue Service, U.S. Worker's Compensation, U.S. Department of Labor, U.S. Occupational Safety and Health Administration, U.S. Drug-Free Workplace, and Health Insurance Portability and Accountability Act (HIPAA) requirements.
(c) Policies and procedures.All applications must include the provider's internal policies that provide for:
(1) protection of individual rights per OAC 340:100-3-1.2;
(2) a statement of rights and responsibilities developed and submitted by the group home provider per OAC 340:100-6-95;
(3) procedures for admission and discharge of service recipientsrecipient admission and discharge procedures;
(4) client confidentiality;
(5) reacting and planning for emergencies and disasters per OAC 340:100-3-32 including, but not limited to:
(A) fire;
(B) severe weather;
(C) missing persons;
(D) evacuations;
(E) a plan for continuity of services in the event of an emergency; and
(F) provisions for practice drills per OAC 340:100-5-22.1, and OAC 340-100-6-45, as applicable;
(6) identifying and avoiding conflicts of interest and nepotism including, but not limited to:
(A) renting and leasing;
(B) staffing;
(C) board membership;
(D) contracted services;
(E) acquisition of real property and equipment acquisition;
(F) board membership and relationships with agency staff or contractsand/or contractors;
(G) auditing;
(H) client-staff relationships including the prohibition of services to individuals for whom agency staff are guardian,; unless the ward is the guardian's spouse, mother, father, sibling, aunt, uncle, grandparent, adult child, adult grandchild, niece, nephew, or cousin of the guardian; and
(I) any other situation that haswith the potential to result in a conflict of interest;
(7) a means to establish and collect fees for services not covered by OHCA or DDSDDDS per OAC 317:30-3-5.1;
(8) a grievance process that is reviewed and approved by the Office of Client Advocacy per OAC 340:2-3-2 and OAC 340:2-3-45;
(9) reporting of suspected maltreatment reporting per Section 1025.1 of Title 56 of the Oklahoma Statutes and OAC 340:2-3-33;
(10) personnel policies that comply with federal and state employment laws and OKDHSDHS training requirements per OAC 340:100-3-38 through OAC 340:100-3-38.13;
(11) protection of the service recipientrecipient's personal funds per OAC 340:100-3-4 and for those providing residential supports per OAC 340:100-5-22.1, and non-residential services per OAC 340:100-5-34340:100-5-35;
(12) records maintenance of records per OAC 340:100-3-40;
(13) health and wellness maintenance of health and wellness per OAC 340:100-5-26; and
(14) medication administration per OAC 340:100-5-32 and OAC 340:100-5-33.
(d) Financial solvency and service capacity.All applications must include evidence supported by an operational plan demonstrating the applicant's capacity to provide services in a financially solvent manner by:
(1) a narrative description of experience and capacity to operate a business in a fiscally-responsible manner;
(2) management and financial strategies ensuring SoonerCare compliance per OAC 317:30, Subchapters oneOne and three as provided inThree, per the OHCA provider manual;
(3) a narrative regardingdescription of the proposed record-keeping system and the methods for maintaining and retainingused to maintain and retain documentation for successful completion ofto successfully complete the annual financial audit;
(4) evidence of sufficient liquid assets or lines-of-credit in the name of the provider agency or business indicating the greater of $100,000 or three times the average monthly-budgeted expenses;
(5) a line-item budget, accompanied by a narrative providing anddescription justifying an expense estimate for the first full-year of operations;
(6) a written quote for proposed insurance coverage identifying the typeall policy types and limitations of all policies.Insurance requirements are:
(A) a $250,000 professional liability minimum, when the provider agency receives $50,000 or less per fiscal year for the delivery of supports funded through DHS or HCBS Waivers or $1,000,000 when the provider agency receives more than $50,000;
(B) a $100,000 general liability minimum, when the provider agency receives $50,000 or less per fiscal year for the delivery of supports funded through DHS or HCBS Waivers or $1,000,000 when the provider agency receives more than $50,000;
(C) a $100,000 commercial automobile liability minimum per occurrence;
(D) a $25,000 minimum employee dishonesty coverage minimum; and
(E) upon coverage commencement of coverage, a copy of the certificate of insurance with a 30-calendar day cancellation notice is required to beand, is sent to DDSDDDS by the carrier showing OKDHSDHS as the certificate of insurance holder;
(7) a certificate of incorporation in the State of Oklahoma certificate of incorporationand the applicant's federal tax identification number; and
(8) the most recent, audited-financial statement, when applicable or the most recent tax return.
(e) Qualified personnel.All applications must include information regarding thekey personnel's qualifications of key personnel and appropriate background checkssearches, including:
(1) job descriptions for administrative and executive positionsposition descriptors and the resumes of persons filling those positions when available, including three references for each;
(2) documentation of an Oklahoma State Bureau of Investigation (OSBI) background checkssearch and Community Services Worker Registry checkssearch for the executive director, program coordinator, program manager, key business office staff, and any other management staff who will supervise service delivery;
(3) documentation that demonstrates the executive director or program director has earned a bachelor'sBachelor's degree from an accredited college or university and has a minimum of two-years supervisory or management experience;
(4) board of director meeting minutes designatinglisting the authorized individual by name, who is authorized to conductconducts business and has the provider agency's signature authority on behalf of the provider agency;
(5) documentation that the program coordinator meets minimum qualifications per OAC 340:100-5-22.1, when residential, group home, HTS, or homemaker services are provided;
(6) documentation demonstratingthat the provider agency's program manager meets minimum qualifications when employment services are provided per OAC 317:40-7-20, when employment services are provided; and
(7) an attestation that staff meet training requirements per OAC 340:100-3-38 through OAC 340:100-3-38.13 and that community service workers meet pre-employment screening for community services workersrequirements per OAC 340:100-3-39.
(f) Disclosures.Disclosure of ownership and control by an organization, institution, business, fiscal agent, or agency requesting a provider agreement is a federal requirement for any SoonerCare program.The SoonerCare provider is the disclosing entity and the person(s) making application for a provider agreement with OHCA to provide HCBS.
(1) SoonerCare providers, other than an individual practitioner,or a group of practitioners, or a fiscal agent must disclose per Section 455.104 of Title 42 of the Code of Federal Regulations (42 CFRC.F.R.§ 455.104):
(A) the name and address of any person, individual, or corporation, with an ownership or controlling interest in the disclosing entity.Corporate entities must include the primary business address, all business locations, and P.O.PO Box addresses, as applicable;
(B) the date of birth and Social Security number, in the case offor an individual;
(C) other tax identification number, in the case ofnumbers for a corporation, with an ownership or controlling interest in the disclosing entity or in any subcontractor in which the disclosing entity has a five percent or more interest; and
(D) whetherif the person, individual, or corporation, with an ownership or controlling interest in the disclosing entity is related to another personan individual, such as a spouse, parent, child, or sibling;with ownership or controlling interest in the disclosing entity, or whetherif the person, individual or corporation, with an ownership or controlling interest in any subcontractor in which the disclosing entity has a five percent or more interest is related to another person with ownership or controlling interests in the disclosing entity as a spouse, parent, child, or sibling; and
(E) the name of any other disclosing entity in which a person with an ownership or controlling interest in the disclosing entity has an ownership or controlling interest; and
(F) the name, address, date of birth, and Social Security number of any managing employee of the disclosing entity.
(2) SoonerCare providers, or the person making application, must disclose per 42 CFRC.F.R.§ 455.106 the identity of any person who was convicted of crimes prior to OHCA issuing or renewing a provider agreement or at any time upon written request bywhen OHCA submits a written request, who:
(A) has ownership or controlling interest in the provider,or is an agent, or is a managing employee of the provider; and
(B) was convicted of a criminal offense related to his or her involvement in any program under Medicare, SoonerCare, or the Title XIX services program since the inception of those programs.
(g) New providerProvider orientation.New provider orientation is provided by designated DDSDDDS area office staff,conducts provider orientation and OHCA conducts provider-billing training is provided by OHCA.
(h) Transfer of Ownership transfers.Providers provide DDSDDDS with a 30-dayscalendar day notice of intent to transfer ownership.Services cannot be provided by a new owner until the new owner hasthere is a valid provider agreement, contract, with OHCA.
(i) Termination of provider agreementsProvider agreement termination.Provider agreements may be recommended for termination by DDSDDDS may recommend a provider agreement termination to OHCA, when the:
(1) owners, officers, managers, or other persons with substantial contractual relationships wereare convicted of certain crimes or received certain sanctions as specified inper Section 1128 of the Social Security Act;
(2) provider fails to maintain required licensure or certification as required;
(3) provider fails to timely correct program deficiencies in a timely manner per OAC 340:100-3-27.1;
(4) provider is unable to provide the services per the agreement; or
(5) provider becomes insolvent.
(j) Exceptions.Employment providers requesting a provider agreement to provide services through the Contracts with Industry program contact the programs supervisor of employment services at DDSD state officeDDS State Office employment services program supervisor.The provider submits copies of the Oklahoma State Bureau of Investigation (OSBI) background checkssearches and of the Community Services Worker Registry checks for assigned job coaches.
SUBCHAPTER 5. CLIENT SERVICES
PART 3. SERVICE PROVISIONS
340:100-5-26.1. Psychotropic medication
Revised 7-1-119-15-18
(a) Oklahoma Administrative Code (OAC)340:100-5-26.1 applies to service recipients receiving:
(1) community residential supports per OAC 340:100-5-22.1;
(2) group home services, per OAC 340:100-6; or
(3) behavioral supports, per OAC340:100-5-57 in Level D group homes.
(b) A psychotropic medication is a drug used to treat a mental disorder, or any drug prescribed to stabilize or improve mood, mental status, or behavior per OAC 340:100-1-2.
(c) Medication is not used as punishment, for thestaff's convenience of staff, as a substitute for a program, or in quantities that interfere with a service recipient'sparticipation in programming.
(d) The service recipient's Personal Support Team (Team) obtains from the prescribing physician a description of data to be collected to evaluate the effectiveness of the psychotropic medicationmedication's effectiveness, from the prescribing physician.
(1) The Team:
(A) identifies a method for collecting necessary data; and
(B) specifies a routine method for reporting this data to the prescribing physician.
(2) IfWhen the psychotropic medication is changed, the Team obtains from the prescribing physician new instructions for additional or different data needed to evaluate the effectiveness of the new medication, from the prescribing physician.
(e) Developmental Disabilities Services Division (DDSD) defines the use of p.r.n. medication for behavioral control to be a highly restrictive procedure per OAC 340:100-3-34.In cases where a medication is ordered to be administered p.r.n. for behavioral control, the service recipient's Team ensures there is a written protocol for the administration of the p.r.n. medication from the prescribing physician as part of the protective intervention planning per OAC 340:100-5-57, and contract provider agency staff will follow critical incident reporting requirements per OAC 340:100-3-34.The Team monitors for side effects, such as tardive dyskinesia per OAC 340:100-5-29.
(f) PsychotropicThe Team reviews the use of psychotropic medication is monitored in accordance withannually during the individual planning process per OAC 340:100-5-26340:100-5-53.
(g) Monitoring for side effects such as tardive dyskinesia is in accordance with OAC 340:100-5-29When psychotropic medication is used to treat the symptoms of a psychiatric diagnosis and the medication is determined ineffective in eliminating or substantially reducing symptoms, the Team provides pertinent information to the prescribing physician about the service recipient'sstatus.
(h) The Team implements positive support strategies according to OAC 340:100-5-57Use of psychotropic medication for behavior control is an intrusive procedure per OAC 340:100-1-2.The Team must develop protective intervention protocol per OAC 340:100-5-57.Psychotropic medication is considered for behavioral controlonly when it is prescribed without a confirmed psychiatric diagnosis, appropriate for the medication.
(i) The Team reviews the use of psychotropic medication annually via Form 06HM067E, Annual Psychotropic Medication ReviewDevelopmental Disabilities Services (DDS) defines the use of p.r.n. medication for behavioral control to be a highly-restrictive procedure per OAC 340:100-3-34.When a medication is ordered to be administered p.r.n. for behavioral control:
(1) the Team:
(A) ensures there is a written protocol for the administration of the p.r.n. medication from the prescribing physician as part of the protective-intervention planning per OAC 340:100-5-57;
(B) notifies the DDS director of pharmacy services and requests a pharmacy review within five-business days; and
(C) meets to incorporate the protocol in the individual plan within 30-calendar days; and
(2) the contract provider agency staff follows critical incident reporting requirements per OAC 340:100-3-34.
(j) When psychotropic medication is used to treat the symptoms of a psychiatric diagnosis and the medication is determined ineffective in eliminating or substantially reducing symptoms, the Team provides pertinent information about the service recipient'sstatus to the prescribing physician.
(k) If psychotropic medication is ordered p.r.n., the Team meets with appropriate service providers to review considerations per OAC 340:100-5-26.1(i) as soon as possible, but within five working days.
(l) Psychotropic medication is considered to be in use only for behavioral control if prescribed without a confirmed psychiatric diagnosis appropriate for the medication.
(1) When the service recipient and service recipient'sTeam determine the medication is effective in eliminating or substantially reducing targeted behaviors, the Team submits documentation to the appropriate committees for review as described in (A) through (C).
(A) A protective intervention plan is required per OAC 340:100-5-57.
(B) The Team must submit the plan to the Human Rights Committee (HRC) and Statewide Behavior Review Committee (SBRC) annually.
(C) The Team documents the service recipient'stargeted behavior in conjunction with physician-guided efforts to reach the optimal effective dosage.
(2) When the service recipient and service recipient'sTeam determine the medication is ineffective in eliminating or substantially reducing targeted behaviors, documentation and review are required as described in (A) through (D).
(A) The Team meets and reviews available documentation at least quarterly while the medication is in place and continues to be ineffective.
(B) The Team provides pertinent information about the service recipient's status to the prescribing physician.
(C) Documentation of the information provided and physician's response is submitted to the positive support field specialist for review by(SBRC).
(D) The Team must annually submit a protective intervention plan that includes a physician-approved psychotropic medication reduction or adjustment plan to HRC for review and SBRC for approval.
PART 5. INDIVIDUAL PLANNING
340:100-5-57. Protective intervention protocol (PIP)
Revised 9-15-169-15-18
(a) Purpose.The purpose of aprotective intervention protocolPIP is to ensure the service recipient's safety, when physical, emotional, medical, financial, legal, or community participation issues place the service recipienthim or her at risk.
(b) Elements of the protective intervention protocolPIP elements.The protective intervention protocolPIP is part of the Individual Plan (Plan) developed with the participation of the service recipient and Personal Support Team (Team).
(1) The protective intervention protocolPIP:
(A)(1) uses the least restrictive approaches necessary to address safety risks identified in the safety risk assessment, per Oklahoma Administrative Code (OAC) 340:100-5-56;
(B)(2) identifies the early signs, clues, or other indicators of potential safety risks;
(C)(3) describes preventative supports, services, and actions to take in order to reduce or eliminate safety risks;
(D)(4) describes detailed instructions and procedures taken by staff and Team members during a situation that places the safety of the service recipient or others at risk, including procedures to:
(i)(A) procedures to keep the service recipient and others as safe as possible;
(ii)(B) steps to defuse, reduce, or eliminate harm or injury; and
(iii)(C) procedures for securingsecure Team or provider agency staff assistance from other Team members or provider agency staff;
(E)(5) includes outcomes targeting skill enhancement, health improvement, choice making, development of meaningful relationshipsrelationship development, and community participation in the community;
(F)(6) describes teaching methods in sufficient detail to provide clear direction to provider agency support staff to assist the service recipient to learn relevant skills;
(G)(7) identifies methods and time frames to evaluate the PIP's effectiveness of theprotective intervention protocol;
(H)(8) is revised when circumstances change or the protective intervention protocolPIP is no longer effective;
(I)(9) treats the service recipient with dignity and is reasonable, humane, practical, not controlling, and the least restrictive alternative; and
(J)(10) is submitted to the for review at least annually, when the plan imposes a restrictive or intrusive procedure; andis reviewed by the Team to determine if the PIP meets OAC 340:100-5-57 requirements.Team review and approval is documented in the Plan
(2) is submitted to the Statewide Human Rights Behavior Review Committee (SHRBRC) per OAC 340:100-3-14.
(c) Serious risk or dangerous behavior.When a protective intervention protocolPIP addresses challenging behaviors that create serious risk of physical injury or harm to the service recipient or others, risk of involvement in civil or criminal processes, or places at serious risk the service recipient's physical safety, environment, relationships, or community participation at serious risk, the protective intervention protocolPIP must be developed and overseen by the Team and an appropriately-licensed professional or a family trainer approved by Developmental Disabilities Services (DDS) with the assistance of the positive support field specialist.
(d) Restrictive or intrusive procedures.When the Team determines restrictive or intrusive procedures, per OAC 340:100-1-2, are essential for safety, the Team must develop a protective intervention protocolPIP with the assistance of a DDS positive support field specialistspecialist's assistance.In addition to the requirements in (b) of this Section, the Team must:
(1) describe the severity and frequency of the risk or dangerous behavior;
(2) address any limitations placed on the service recipient's access to goods, services, and activities, and document the Team's plan to restore access to such;
(3) identify positive approaches used prior to implementing the restrictive or intrusive procedure;
(4) ensure the procedures cause noprocedure does not harm to the service recipient; and
(5) describe methods to help the service recipient develop skills that serve the same function as, or reduce or eliminate the possibility of, the dangerous behavior or serious risk.These methods must be individualized and provide clear direction to provider agency support staff to develop the service recipient's pro-social and coping skills.;
(6) submit the protocol to the Statewide Human Rights Behavior Review Committee (SHRBRC) per OAC 340:100-3-14 for initial approval and any time additional restrictive or intrusive procedures are requested; and
(7) document annual review and continued PIP approval.
(e) Physical management.APhysicalphysical management or restraint,hold per OAC 340:100-1-2, is only used to prevent physical injury.Physical management holds are allowed when supported by a specific assessed need and are documented in the person-centered Plan.Person-centered Plan documentation includes requirements per OAC 317:40-1-3(b)(8)(A) through (H).Prompting that does not restrict the service recipient's movement or choice is not considered physical management or restraint. Any protective intervention protocolPIP that includes a physical management hold requires the Team, to:
(1) identify if the ask the service recipientrecipient's physician to assess whether the service recipient has any health concerns related to the use of the physical management procedure, restraint, or any other intrusive method proposed;
(2) ask the service recipient's physician or the DDS pharmacy director to assess whether the current medication regimen poses any risk for the service recipient due to the stress of the physical management procedure;
(3) include a DDS approved trainer of physical management procedures in the planning sessions.
(A) The trainer:
(i) makes recommendations about the effectiveness and safety of the physical management procedure in particular environments;
(ii) assists the Team in identifying alternative approaches when standard procedures do not appear appropriate for the service recipient or the situation; and
(iii) identifies existing physical obstacles to the implementation of athe procedure for particular staff.
(B) The Team includes the trainer's recommendations in the physical management componentdevelopment of the PIP;
(4) identify any situation in which physical management procedures cannot be used because they are unsafe or ineffective per this subsection; and
(5) comply with (f) of this Section.
(f) Emergency intervention.Emergency intervention is the use of a restrictive or intrusive procedure not included in a protective intervention protocolPIP, in response to an unanticipated and unpredictable situation or event or the sudden occurrence of an event so severe and dangerous urgent action precludes less restrictive measures.Physical management, per OAC 340:100-1-2 is only used during emergencies to ensure physical safety and prevent injury.
(1) Emergency intervention:
(A) cannot be used as a substitute for positive approaches or a protective intervention protocolPIP; and
(B) is used for no longer than necessary to eliminate the clear and present danger of serious physical harm to the service recipient or others.
(2) Physical management must be terminated as soon as the service recipient is calm or the threat ended with attempts to release every two minutes to ensure the safety of the service recipient.
(3) When responding to an emergency, no one may authorize or use an amount of force that exceeds what is reasonable and necessary under the circumstances to protect the service recipient or others.
(4) Any person who has reason to believe abuse occurred is responsible to contact the appropriate authorities.
(g) Temporary approval of restrictive or intrusive procedures.After the first use of an emergency restrictive or intrusive procedure, when the Team in consultation with the positive support field specialist determinesdetermine the use of a restrictive or intrusive procedure must be continued to ensure the safety of the service recipient or others, the positive support field specialist or DDS director of psychological and behavioral supports may provide temporary immediate approval for continued use of restrictive or intrusive procedures.
(1) The DDS case manager contacts the positive support field specialist to request temporary approval of restrictive or intrusive procedures to protect the service recipient or others from serious physical harm.
(2) The positive support field specialist approves or denies the request for use of emergency interventions using Form 06MP042E, Request for Temporary Approval of Restrictive or Intrusive Procedures.
(A) IfWhen the temporary request is approved, the positive support field specialist assists the Team in ensuring needed structure and training are in place for safe and proper implementation of the emergency interventions.
(B) Temporary approval lasts no longer than 60-calendar days.
(3) Form 06MP042E must be completed and provide sufficient information provided to demonstrate positive supports were attempted, and that the danger of severe harm still exists.
(4) A DDS trainer of approvedWhen physical management procedures provides training regarding theare authorized,intrusive proceduretraining is obtained from an approved or certified trainer.
(5) To continue using the temporarily-approved restrictive or intrusive procedure, the Team must submit within 60-calendar days following approval, a protective intervention protocolPIP that incorporates the requested procedures to SHRBRC.When the submitted protective intervention protocolPIP does not receive SHRBRC approval, SHRBRC may extend the temporary approval when SHRBRC determines conditions warrant extension, for a maximum of an additional 60-calendar days.
(h) Review and revision of the Individual Plan (Plan).The Plan is reviewed and, as necessary, revised when an unexpected high risk event occurs and is likely to reoccur.
(1) Review and revision to the Plan is appropriate, when the:
(A) service recipient was recently seen in a hospital emergency room due to a behavioral crisis;
(B) service recipient was recently admitted to a psychiatric facility for stabilization;
(C) police were called to intervene because the service recipient is displaying challenging behavior; andor
(D) service recipient was placed in police custody as the result of his or her challenging behavior.
(2) Team planning shallmust include, at a minimum:
(A) consultation with the positive support field specialist;
(B) a review of recent events, including challenging behaviors;
(C) identification of the signs or behaviors indicating the event may reoccur;
(D) assisting the service recipient to develop an individualized safety plan;
(E) detailed action steps for provider agency support staff to follow, when the predicted situation occursto reduce reoccurrence; and
(F) consultation with other professional services, when appropriate.
(3) When a high risk event occurs, the Team reviews the event to determine if additional action is needed to prevent further occurrence.
(4) When psychiatric hospital admission occurs, the Team begins planning upon notification of a discharge date.A review is held within five-business days following discharge to meet the requirements of this Section, and address medication changes per OAC 340:100-5-26.1(d)(2).
(i) Mechanical restraint in a medical context.Restraints and mechanical supports used in a medical context are exempt from (d) of this Section requirements.These exemptions include, but are not limited to:
(1) sedation prescribed by a physician or dentist prior to a medical or dental procedure;
(2) restraints used to control the movement of the service recipient during a time sensitive and necessary medical or dental procedure;
(3) time-limited restraints to promote healing following a medical procedure or injury;
(4) devices prescribed by a physician, physical therapist, or an occupational therapist to maintain body alignment or otherwise support or position a service recipient;
(5) devices normally used for safety reasons, such as car seats or seat belts;
(6) helmets used to protect a service recipient from injury during or following a seizure;
(7) bed rails used to keep a service recipient from falling out of bed; or
(8) wheelchair brakes, unless used for the purpose of restricting mobility.
SUBCHAPTER 6. GROUP HOME REGULATIONS
PART 7. ENVIRONMENTAL HEALTH, SAFETY, AND SANITATION REQUIREMENTS
340:100-6-41. Access to premises
Revised 5-11-079-15-18
(a) Residents may receive any person in the group home during reasonable hours if the visit does not infringe upon the rights of other residentA service recipient has a right to visitors of his or her choosing at any time per Oklahoma Administrative Code (OAC) 317:40-1-3(b)(6).Any modification of a service recipient's right to visitors is permitted only when requirements per OAC 317:40-1-3(b)(8) are met.
(1) Such person isVisitors are not permitted to enter the immediate living area of any service recipient without first identifying himself or herself and then receiving permission from the service recipient to enter.
(2) The rights of other service recipients present in the room must be respected.
(3) A service recipient at any time may terminate, at any time, a visit by a person having access.
(b) The group home provider allows:
(1) visitation and contact with each service recipient's natural family, legal guardian, and friends according to the desires of the service recipient while respecting the rights of other residents; and
(2) friendships with neighbors, co-workers, and peers according to the desires of the service recipient while respecting the rights of other residents.
(c) The group home provider may refuse access to the group home to any person when:
(1) the presence of that person may:
(A) be injurious to the health and safety of a resident; or
(B) threaten the security of the property of a resident or the group home; or
(2) such person seeks access to the group home for commercial purposes.
(d) OAC 340:100-6-41 does not limit the power of the Oklahoma Department of Human Services or any other public agency otherwise permitted or required by law to enter and inspect a group home.
