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Montana Administrative Register Notice 37-599 No. 17   09/06/2012    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through IV, the amendment of ARM 37.34.1401, 37.34.1402, 37.34.1404, 37.34.1418, and 37.34.1420, and the repeal of ARM 37.34.1403, 37.34.1408, 37.34.1409, 37.34.1410, 37.34.1415, 37.34.1419, 37.34.1421, 37.34.1426, 37.34.1427, and 37.34.1428 pertaining to positive behavior support

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On September 26, 2012, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption, amendment, and repeal of the above-stated rules.

 

2.  The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on September 19, 2012, to advise us of the nature of the accommodation that you need.  Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3.  The rules as proposed to be adopted provide as follows:

 

            NEW RULE I  POSITIVE BEHAVIOR SUPPORT:  DESCRIPTION

            (1)  Positive behavior support is a set of evidence-based strategies used to reduce problem behavior by teaching new skills and making changes in the person's environment to improve quality of life.

            (2)  The foundation of positive behavior support is the functional behavior assessment described in [NEW RULE II].

            (3)  Positive behavior support strategies include:

            (a)  understanding how and what the person is communicating;

            (b)  understanding how other's presence, voice, tone, words, actions, and gestures impact the person and modifying these as necessary;

            (c)  supporting the person in communicating choices and wishes;

            (d)  supporting staff to change their behavior when it has a detrimental impact;

            (e)  temporarily avoiding situations that are too difficult or uncomfortable for the person, unless the health or safety of the person or the established treatment plan is compromised;

            (f)  allowing the person to exercise as much control and decision making as possible over day-to-day routines;

            (g)  assisting the person to increase control over life activities and their environment;

            (h)  teaching the person coping, communication, and emotional self-regulation skills;

            (i)  anticipating situations that will be challenging and assisting the person to cope or to respond in a calm way;

            (j)  providing opportunities for the person such as valued work, enjoyable physical exercise, and preferred recreational activities;

            (k)  modifying the environment to remove stressors for the person; and

            (l)  ensuring all medical needs and conditions are identified and addressed.

(4)  The person's plan of care must incorporate the positive behavior support plan.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA

 

            NEW RULE II  POSITIVE BEHAVIOR SUPPORT:  FUNCTIONAL BEHAVIOR ASSESSMENT  (1)  A functional behavior assessment is the gathering of information about a person's behavior based upon multiple information sources, including:

            (a)  a review of the person's records;

            (b)  personal observations;

            (c)  interviews with support providers;

            (d)  interviews with the person; and

            (e)  interviews with others who have personal knowledge of the person.

            (2)  A functional behavior assessment must include:

            (a)  a clear and measurable description of the challenging behavior, including frequency, duration, intensity, and severity of the behavior;

            (b)  a clear description of the need to alter the behavior;

            (c)  a clear description of medical, psychological, psychiatric, physiological, and environmental conditions in terms of how they may affect the occurrence of the challenging behavior;

            (d)  the events, times, and situations that predict both the occurrence and the nonoccurrence of the challenging behavior and a description of the events immediately preceding and following the behavior;

            (e)  summary statement(s) regarding the function(s) that may be maintaining the challenging behavior;

            (f)  data confirming the function of the challenging behavior and the strategies for reducing or eliminating the challenging behavior;

            (g)  functional alternative behavior that serves to meet the same function as the challenging behavior; and

            (h)  a clear and measurable procedure that will be used to alter the challenging behavior.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA

 

            NEW RULE III  POSITIVE BEHAVIOR SUPPORT:  BEHAVIOR SUPPORT PLAN  (1)  The behavior support plan is a formal written plan to address needs identified in a person's plan of care and must be developed for all persons engaging in challenging behavior.  A behavior support plan must be developed as required by ARM 37.34.1420(4).  The behavior support plan must be based on a functional behavior assessment as described in [New Rule II].

            (2)  Behavior support plans:

            (a)  utilize the basic principles of human behavior and learning and the principles of applied behavior analysis;

            (b)  emphasize the development of the functional alternative behavior using positive approaches, positive behavior intervention, and positive reinforcement procedures;

            (c)  use the least intervention possible;

            (d)  describe how to rearrange environments, alter curricula or tasks, and adjust schedules;

            (e)  are practical and appropriate for the settings where they will be implemented, for the person and for those who will implement the methods described;

            (f)  are evaluated through timely review of specific data on the progress and effectiveness of the procedure;

            (g)  identify functional alternative behavior that meets the same function as the challenging behavior;

            (h)  provide a clear and measurable procedure used to alter the challenging behavior;

            (i)  include a description of any restrictions necessary to protect the health and safety of the person, describe why the restrictions are necessary, and list the criteria for removing them;

            (j)  include reactive strategies to ensure the safety of the person and others; and

            (k)  are included in the person's plan of care.

            (3)  A behavior support plan must not include the use of seclusion, or the use of aversive, abusive or demeaning procedures, procedures that cause pain or discomfort except as provided for in the emergency procedures allowed for in ARM 37.34.1420.

            (4)  Use of the person's behavior support plan requires prior written consent from:

            (a)  the person;

            (b)  the person's planning team;

            (c)  the person's parent(s) if the person is under 18 years of age; and

            (d)  the legal guardian, if one has been appointed by the court.

            (5)  The person's planning team and the person's providers are responsible for the implementation of the person's behavior support plan.

            (6)  A behavior support plan must include appropriate measures or training and monitoring staff performance of the behavior support plan.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA

 

            NEW RULE IV  POSITIVE BEHAVIOR SUPPORT:  RESTRICTED PROCEDURES  (1)  The following restricted procedures may be used for up to 90 calendar days as part of a behavior support plan that is developed and approved in accordance with [NEW RULE III]:

            (a)  physically enforced contingent observation;

            (b)  contingent access to personal possessions;

            (c)  contingent access to personal funds;

            (d)  educational fines;

            (e)  physically enforced exclusion time out;

            (f)  physically enforced overcorrection;

            (g)  physically enforced positive practice overcorrection;

            (h)  physically enforced restitutional overcorrection;

            (i)  contingent access to social activities;

            (j)  response cost; and

            (k)  physically enforced required relaxation.

            (2)  A behavior support plan that includes the use of restrictive procedures must be approved by:

            (a)  a board-certified behavior analyst (BCBA);

            (b)  a family support specialist with an autism endorsement (FSS-AE);

            (c)  a person with an Institute for Applied Behavior Analysis (IABA) consultant certification; or

            (d)  a person with a degree in applied behavior analysis, psychology, or special education and documentation of training and experience in the use of the principles of applied behavior analysis in the habilitation of person(s) with developmental disabilities and the development of behavior support plans.

            (3)  A copy of the behavior support plan incorporating restricted procedures as listed in (1) must be sent to the developmental disabilities program director within three working days from approval.

            (4)  The developmental disabilities program director or their designee must provide prior written authorization for the continued use of the restricted procedures after 90 calendar days and the department designee is responsible for reviewing and monitoring the continued implementation and effectiveness of the behavior support plan.

            (5)  The restricted procedures in (1) may only be used in the delivery of services to a person as authorized by these rules.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA

 

4.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.34.1401  AVERSIVE PROCEDURES, POSITIVE BEHAVIOR SUPPORT:  PURPOSE  (1)  These rules are adopted to provide a system for the review, approval and implementation of ethical, safe, humane and efficient training procedures for persons with developmental disabilities in programs funded through the developmental disabilities program of the department of public health and human services.  It is not the purpose of these rules to advocate the use of aversive procedures.  Rather the purpose is to acknow­ledge that such procedures may be necessary when other less restric­tive procedures have failed to signifi­cantly modify a person's behavior.  The purpose of the rules under this subchapter is to require the use of positive behavior supports intended to encourage individual growth, improve quality of life, and reduce the use of unnecessary intrusive measures for persons funded through the department.  Positive behavior support focuses on what is important to the person as well as what is important for the person when encouraging growth and change.  This rule prohibits the use of seclusion or the use of aversive, abusive or demeaning procedures, or procedures that cause pain or discomfort except as provided for in the emergency procedures allowed for in ARM 37.34.1420.  This subchapter applies to persons receiving services from community-based providers that are funded entirely or in part by the department.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1402  POSITIVE BEHAVIOR SUPPORT:  APPLICABILITY  (1)  A person in a program of developmental disabilities services, funded entirely or in part by the state of Montana, shall be afforded the protections imposed by these rules.  All children and adults receiving services from community-based providers that are funded entirely or in part by the department must be afforded the protections imposed by these rules.  Any provider contracting with the department to provide services to persons with developmental disabilities shall must conduct its activities in accordance with these rules.

 

AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1404  AVERSIVE PROCEDURES POSITIVE BEHAVIOR SUPPORT:  DEFINITIONS  For purposes of this subchapter, the following definitions apply:

            (1)  "Advocate" means a citizen advocate, a representative of the Montana advocacy program, a friend acknowledged by the person to be the person's advocate or the parent/guardian of a person with developmental disabilities is defined in ARM 37.34.102.

            (2)  "Alternative behavior" means a behavior that can, but is not likely to occur at the same time as a maladaptive target challenging behavior.

            (3)  "Antecedent stimulus modification" means arranging the environment that exists at the time of the occurrence of the maladaptive target behavior in such a way that the maladaptive target behavior becomes less likely to occur.

            (4)(3)  "Aversive" means any stimulus or event from which a person will seek to escape, avoid, or terminate, if given an opportunity to do so.

            (5)  "Aversive procedure" means a procedure as defined in and implemented in this subchapter that is aversive in nature and is implemented for the purpose of reducing or eliminating a maladaptive target behavior.

            (6)  "Contingent exercise" means a method of decreasing a maladaptive target behavior by requiring a person who engages in the undesired behavior to perform exercises or movements that are not topographically similar to the maladaptive target behavior.

            (4)  "Challenging behavior" means a behavior that presents a risk or potential risk to the health or safety of a person or to others.

            (7)(5)  "Contingent observation" means a method of decreasing a maladaptive target challenging behavior by telling a the person they are engaging in a maladaptive target behavior what they are doing wrong and asking the person to not participate in the ongoing activity for a short period of time, to be seated nearby, and to observe others engaging in a specific appropriate behavior and receiving positive reinforcement for it.  The trainer concurrently attends to and reinforces those persons behaving appropriately.  The person who is observing the behavior may rejoin the activity group after a few minutes of observation if when the person agrees to behave appropriately.  The person's who rejoins the group appropriate behavior is then reinforced by the trainer when the person exhibits the appropriate behavior.

            (8)(6)  "Contingent access to social activities and personal possessions including personal funds" means that upon the occurrence of a specified maladaptive target challenging behavior, a the person's attendance at social activities and use of personal possessions including personal funds is restricted.

            (9)(7)  "Corporal punishment" means aversive stimulation that is inflicted directly on the body following a specific maladaptive target behavior that decreases the probability of the behavior occurring in the future.  Examples would include but not be limited to spanking, electric shock, lemon juice into the mouth, etc.  knowingly and purposefully inflicting physical pain on a person as a disciplinary measure.

            (10)  "Deceleration program" means the use of systematic program techniques or procedures to decrease the rate of specific maladaptive target behaviors.  These deceleration programs must include nonaversive procedures such as:  functional analysis of the behavior, teaching replacement behaviors, positive reinforcement, antecedent stimulus modification, differential reinforcement, etc.  Systematic decelera­tion program procedures might also include the use of aversive procedures as defined by this rule.

            (11)  "Differential reinforcement" means a procedure for providing systematic reinforcers for behaviors so that these behaviors occur more frequently than the maladaptive target behaviors.  Variations include:

            (a)  differential reinforcement of other behaviors;

            (b)  differential reinforcement of incompatible behaviors;

            (c)  differential reinforcement of other behaviors on a progressive schedule;

            (d)  differential reinforcement of alternative behavior; and

            (e)  differential reinforcement of low rate behavior.

            (12)  "Differential reinforcement of other behaviors (DRO)" means that reinforce­ment occurs at the end of the interval if the maladaptive target behavior has not occurred during that interval.

            (13)  "Differential reinforcement of other behavior on a progressive schedule (DROP)" means that the amount a reinforcement will be increased for consecutive intervals in which the specified maladaptive target behavior does not occur, to a maximum level of reinforcement.  Once the person has reached the highest level of reinforcement, the amount of reinforcement remains at this level as long as the maladaptive target behavior does not occur.  When the maladaptive target behavior does occur, the level of reinforcement returns to the smallest amount.

            (14)  "Differential reinforcement of incompatible behaviors (DRI)" means that reinforcement occurs following a specified incompatible behavior.  The maladaptive target behavior is concurrently placed on extinction.

            (15)  "Differential reinforcement of alternative behavior (DRA or Alt-R)" means that reinforcement occurs following a specified alternative behavior.  The maladaptive target behavior is concurrently placed on extinction.

            (16)  "Differential reinforcement of low rate behavior (DRL)" means that reinforcement occurs only when the maladaptive target behavior occurs at or below a specified rate.

            (17)(8)  "Educational fine" means a system of decreasing maladaptive target challenging behavior based upon a token or point system.  A small fine is levied contingent upon the occurrence of a maladaptive target challenging behavior.  Each fine must be accompanied by a teaching episode A teaching episode must accompany each fine which includes a description of the maladaptive target challenging behavior, the amount of the fine, instruction on the appropriate forms of behavior, and the opportunity for the person to "earn back" a portion of the fine for practicing the appropriate behaviors.

            (18)(9)  "Exclusion time out" means a method of decreasing a maladaptive target challenging behavior by requiring a person to leave an ongoing reinforcing situation for a period of time, contingent on the occurrence of some previously specified maladaptive target challenging behavior.  Unlike contingent observation, the person is not instructed to observe the appropriate behavior of others.

            (19)  "Extinction" means that a previously reinforced behavior is no longer followed with the reinforcing consequence.  This makes it likely that over time the behavior will diminish.  Extinction is different from punishment in that with extinction the reinforcer is simply no longer given when the target behavior occurs.

            (20)  "Functional analysis" means the assessment of many variables prior to intervening on a behavior.  This assessment could include but not be limited to a review of the following:  historical events; antecedent events; consequences; environmen­tal factors such as reinforcer preferences and efficiency, expectations of others, environmental pollutants such as noise and crowding, etc.; and the communicative functions of behavior.

            (21)(10)  "Graduated guidance" means systematically providing the minimum degree of physical assistance necessary to ensure that a desired behavior occurs.  Graduated guidance is a technique combining physical guidance and fading in which the physical guidance is systematically and gradually reduced and faded according to the person's responsiveness.  Graduated guidance techniques do not include physical restraint as a primary component.  Graduated guidance is assistive rather than restrictive and does not involve forced compliance.

            (22)  "Incompatible behavior" means a behavior that is opposite to and cannot be emitted at the same time as a maladaptive target behavior.

            (23)  "Individual program plan (IPP)" means a written set of procedures designed to meet a specific behavioral objective relating to a person's adaptive behavior.  For the purposes of decelerating maladaptive target behaviors an individual program plan includes at least the following components:

            (a)  A clear objective description of the maladaptive target behavior to be reduced or eliminated.

            (b)  A clear objective description of the incompatible or alternative appropriate response which will be reinforced.

            (c)  A list of programs to teach replacement behaviors that serve the same behavioral function identified through a functional analysis or review of the maladaptive target behaviors.

            (d)  A baseline measurement of the level of the target behavior before intervention.

            (e)  Reinforcement procedures which specify:

            (i)  the reinforcers to be employed;

            (ii)  the schedule for delivering the reinforcers;

            (iii)  a detailed description of the procedure for delivering the reinforcers;

            (iv)  the names of persons who will carry out these procedures.

            (f)  Deceleration procedures which specify:

            (i)  the name of the procedure which will be employed as a consequence for the maladaptive target behavior;

            (ii)  a detailed description of the procedure;

            (iii)  the names of persons who will carry out the procedure;

            (iv)  the name of the person who will supervise the implementation of the procedure;

            (v)  a limit on the use of any aversive procedure in one incident or time period.

            (g)  Data collection procedures which include:

            (i)  the kind of data which will be collected;

            (ii)  when the data will be taken;

            (iii)  who will collect the data;

            (iv)  who will review the data;

            (v)  at what point the person will graduate from the program;

            (vi)  data based criterion for modifying the program if the procedure is not effective;

            (vii)  graphs of the data;

            (viii)  data based criterion for terminating the procedure if it is not effective; and

            (ix)  a description of how data will be systematically shared and reviewed across program settings.

            (24)  "Maladaptive target behavior" means the inappropriate behavior the individual program plan is designed to control or eliminate.

            (25)(11)  "Mechanical restraint" means physically restricting a person's movement through the use upon the person of any mechanical or restrictive device.  a physical device used to restrict the person's movement or restrict the normal function of the person's body.  The definition does not include the following:

            (a)  physical equipment or orthopedic appliances, surgical dressings or bandages, supportive body bands or other restraints necessary for medical treatment, routine physical examinations, or medical tests;

            (b)  devices used to support functional body position or proper balance; or

            (c)  equipment used for safety during transportation.

            (26)  "Modeling with positive reinforcement" means the reinforcement of a specified and appropriate behavior of one or more persons in order to induce a second person to imitate that appropriate behavior.  The second person then receives reinforcers if that person displays the appropriate behavior.

            (27)  "Nonexclusionary time out" means that, following the occurrence of a maladaptive target behavior, a stimulus is introduced which indicates for the person that reinforcement will not occur for some specified period of time.  The person remains in the activity, but does not receive reinforcers during the period of time that the stimulus is present.

            (28)(12)  "Overcorrection" means a technique used to decrease a maladaptive target challenging behavior.  The two main types of overcorrection are restitutional overcorrection and positive practice overcorrection.

            (13)  "Physical enforcement" means a person is required to perform a behavior by another person using physical contact with them.

            (14)  "Physical prompt" means a person physically guides the person to perform a response.

            (29)(15)  "Physical restraint" means the restriction of a the person's movement by one or more persons holding or applying physical pressure by holding or applying physical pressure to bring the person's behavior under control in order to avoid the risk of serious harm to the person, other person(s), or to the environment.  The term physical restraint does not include the use of physical prompt or graduated guidance.

            (30)(16)  "Positive practice overcorrection" means a form of overcorrection requiring a the person engaging in a maladaptive target challenging behavior to intensely practice a specified appropriate alternative behavior.

            (31)  "Positive reinforcement" means specifically adding an event or stimulus following the occurrence of a target behavior that increases the probability of the behavior being maintained or occurring more frequently in the future.

            (32)  "Punishment" means specifically adding an event or stimulus following the occurrence of a target behavior that decreases the probability of the behavior being maintained or occurring more frequently in the future.

            (33)(17)  "Required relaxation" means requiring a the person to relax quietly for a period of time after the occurrence of a maladaptive target challenging behavior.

            (34)(18)  "Response cost" means a procedure reducing accumulated reinforcement upon the occurrence of a maladaptive target challenging behavior, thus making the behavior less likely to occur.

            (35)  "Restitution" means a procedure used to decrease a maladaptive target behavior by directing a person to restore the person's environment.  Variations include:

            (a)  simple restoration; and

            (b)  restorational overcorrection.

            (36)(19)  "Restitutional overcorrection" means a form of overcorrection requiring a person engaging in a maladaptive target challenging behavior to restore the environment to its previous state and improve on the previous conditions.

            (37)(20)  "Restriction of rights/privileges" means procedures which involve withdrawal, delay, or curtailment of rights or privileges which a the person may ordinarily exercise.  Such withdrawal is usually in connection with a program through which the person may exercise such rights and/or privileges by performing specified behaviors.

            (38)  "Satiation" means that a reinforcer loses its reinforcing effect due to the extent that it is continuously presented.

            (39)(21)  "Seclusion time out" means a method of decreasing a maladaptive target behavior by requiring a person to leave an ongoing reinforcing activity and go to a closed room for a period of time.  Seclusion time out is contingent on the occurrence of some previously specified maladaptive target behavior.  The room to which the person must go must not be reinforcing in any manner requiring the person to remain alone in a room or any area behind a closed door which prevents them from leaving or being observed for a period of time.

            (40)  "Self-reinforcement" means a contingency established by a person to control that person's behavior through the delivery of reinforcement.  The reinforcers remain under control of the person and the person is free to violate the contingencies at any time.

            (41)  "Simple restitution" means restoring the environment to the state that existed before a disruptive event occurred. Simple restitution does not include forced compliance by physically forcing a person to comply.  Simple restitution should instead be accomplished by verbal and gestural cues, prompts or graduated guidance.

 

AUTH:  53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1418  AVERSIVE PROCEDURES POSITIVE BEHAVIOR SUPPORT:  RESTRICTION OF ANY CLIENT RIGHTS PROHIBITIONS  (1)  The following rights may not be restricted for the purposes of an aversive program a positive behavior support program:

            (a)  the right to education and training services;

            (b)  the right to reside, work and receive treatment in a safe environment to live, work, and receive treatment;

            (c)  the right to an individual plan of care;

            (d)  the right to prompt medical and dental care;

            (e)  the right to a nourishing, well-balanced diet;

            (f)  the right to acquire the assistance of an advocate;

            (g)  the right to the opportunity for religious worship; and

            (h)  the right to just compensation for work performed.

            (2)  Corporal punishment and verbal and physical abuse are prohibited in the delivery of services to a person.

 

AUTH:  53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1420  AVERSIVE PROCEDURES POSITIVE BEHAVIOR SUPPORT:  EMERGENCY PROCEDURES

            (1)  Emergencies are those situations for which no approved individual program plan exists and which if not dealt with may result in injury to the client or other persons or significant amounts of property destruction Emergencies are situations in which the person, other person(s), or the environment is at imminent risk of serious harm or damage due to the person's challenging behavior.

            (2)  If an emergency occurs the service provider may apply the following techniques as necessary to bring a person's behavior under control the following procedures may be used if necessary to prevent the imminent risk of serious harm or damage to the person, other person(s), or the environment:

            (a)  Pphysical restraint; or

            (b)  Exclusion time-out; or mechanical restraint, upon written order by a licensed physician for medical reasons.

            (c)  Seclusion time-out in a room that conforms to the minimum requirements established by the developmental disabilities program review committee (DDPRC) and, that has been approved by the regional manager prior to use.

            (3)  All instances of the use of emergency procedures must be reported, in writing, to the regional manager within 48 hours.  Such reports shall include at a minimum the time and date of the incident, the persons involved, the type and duration of the incident, a description of the cause(s) leading to it, any witnesses to the incident, the procedures employed, and other significant details.  If an emergency procedure is used three times in a 6 month period, a written individual program plan must be developed.  Incident reporting must meet the requirements described in ARM Title 37, chapter 34, subchapter 15.

            (4)  A behavior support plan, as described in [New Rule III], must be developed for the person if physical restraint is used three times in a three-month period.

 

AUTH:  53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, 53-20-205, MCA

 

5.  The department proposes to repeal the following rules:

 

            37.34.1403  AVERSIVE PROCEDURES:  USE is found on page 37-7501 of the Administrative Rules of Montana.

 

AUTH:  53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1408  AVERSIVE PROCEDURES:  SYSTEMATIC PROGRAM REVIEW is found on page 37-7511 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1409  AVERSIVE PROCEDURES:  APPROVAL CRITERIA is found on page 37-7511 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1410  AVERSIVE PROCEDURES:  CLASSIFICATION AND CONDITIONS GOVERNING USE OF PROCEDURES is found on page 37-7512 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1415  AVERSIVE PROCEDURES:  DEVELOPMENTAL DISABILITIES PROGRAM REVIEW COMMITTEE is found on page 37-7517 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1419  MEAL DELAY is found on page 37-7521 of the Administrative Rules of Montana.

 

AUTH:  53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1421  AVERSIVE PROCEDURES:  REIMPOSITION OF DECELERATION PROGRAM is found on page 37-7522 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1426  AVERSIVE PROCEDURES:  APPEAL PROCESS is found on page 37-7527 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1427  AVERSIVE PROCEDURES:  STAFF CERTIFICATION is found on page 37-7527 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

            37.34.1428  AVERSIVE PROCEDURES:  UNCLASSIFIED PROCEDURES is found on page 37-7528 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-20-204, MCA

IMP:     53-20-203, 53-20-205, MCA

 

 

            6.  STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing amendments to ARM Title 37, chapter 34, subchapter 14.  The current rules were drafted in 1986 and many of the specific aversive, restrictive, and intrusive procedures that are allowed by the ARM language are no longer felt to be necessary or appropriate by many professionals, professional organizations, advocacy groups, other state programs, persons receiving services, or their parents and legal guardians.  The department also proposes a title change to reflect the move from "aversive procedure" to "positive behavior support."

 

New Rules I-IV

The proposed new rules provide a process requiring the use of less aversive, restrictive, and intrusive procedures with persons exhibiting challenging behaviors and prohibits the inappropriate use of restraint, seclusion, and other specific aversive, restrictive, and intrusive procedures with persons exhibiting challenging behavior.

 

New Rule I

The department proposes language which provides a description of positive behavior support and the strategies available in order to reduce problem behavior.  Positive behavior support is a set of research-based strategies used to reduce problem behavior by teaching new skills and making changes in a person's environment to improve quality of life.  The proposed amendments require the use of positive behavior support to provide safeguards ensuring the health and safety of persons receiving community-based services funded through the department.  Additionally, they require the use of commonly accepted professional procedures and best practices recommended for use with persons who have a developmental disability and are exhibiting challenging behavior.  The intent of positive behavior support is to enhance the person's quality of life and to reduce the use of unnecessary intrusive procedures.

 

New Rule II

New Rule II describes the functional assessment, the sources for information gathering, and what is required in a functional behavior assessment.  The functional assessment is the foundation of positive behavior support and serves to identify the function that the behavior serves for an individual and strategies to teach or strengthen behaviors that enhance the individual's overall productivity and integration into their community.

 

The use of functional assessments supports the concept of individualized planning using a person-centered approach.  Positive behavior support is most effective when the desires and wishes of the person are understood and addressed and ways to minimize situations or issues that are stressful for the person are included; which help the person have maximum control over their life.

 

New Rule III

The department is proposing New Rule III to provide information describing the components of a positive behavior support plan and plan development.  The information gathered in the functional assessment is employed to create the positive behavior support plan.  The behavior support plan is the instrument which clearly addresses the needs of the person identified in the functional assessment and directs the delivery of the person's services.  The behavior support plan further emphasizes the concept of individualized planning using a person-centered approach for persons in community-based services.

 

New Rule IV

The department proposes New Rule IV which lists restricted procedures and describes under what circumstances those procedures may be used.  It is important that directives regarding restricted procedures are evident to all providers and persons receiving services, to provide consistency in practices, and to relate the circumstances under which restricted procedures may be implemented.  New Rule IV provides safeguards to help ensure the health and safety and to protect the rights and dignity of persons receiving services funded by the department.

 

ARM 37.34.1401, 1402, 1420

The proposed amendments to ARM 37.34.1401, 37.34.1402, and 37.34.1420 remove the outdated references to aversive procedures and provide for the use of positive behavior support.

 

ARM 37.34.1404

The department proposes to amend ARM 37.34.1404 which removes outdated definitions and provides updated definitions based on the most current practices.

 

ARM 37.34.1418

The department proposes to clarify that this rule applies to the positive behavior support program addressed in this subchapter.

 

            7.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., October 4, 2012.

 

8.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

9.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the department.

 

10.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

11.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

 

 

/s/ Cary B. Lund                                           /s/ Anna Whiting Sorrell                            

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                      Public Health and Human Services

           

Certified to the Secretary of State August 27, 2012.

 

 

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