PROPOSED RULEMAKING

DEPARTMENT OF
HUMAN SERVICES

[ 55 PA. CODE CHS. 51, 2380, 2390, 6100,
6200, 6400 AND 6500]

Home and Community-Based Supports and Licensing

[46 Pa.B. 7061]
[Saturday, November 5, 2016]

 The Department of Human Services (Department), under the authority of sections 201(2), 403(b), 403.1(a) and (b), 911 and 1021 of the Human Services Code (62 P.S. §§ 201(2), 403(b), 403.1(a) and (b), 911 and 1021) and section 201(2) of the Mental Health and Intellectual Disability Act of 1966 (50 P.S. § 4201(2)), proposes to rescind Chapters 51 and 6200 (relating to Office of Developmental Programs home and community-based services; and room and board charges), amend Chapters 2380, 2390, 6400 and 6500 and adopt Chapter 6100 (relating to support for individuals with an intellectual disability or autism) to read as set forth in Annex A.

Purpose of Proposed Rulemaking

 The purpose of this proposed rulemaking is to support individuals with an intellectual disability or autism to live in and participate fully in the life of their community, to achieve greater independence and to have the full range of opportunities enjoyed by all citizens of this Commonwealth. This proposed rulemaking strengthens community supports to promote person-centered approaches, community integration, personal choice, quality in support delivery, equity, accountability in the utilization of resources and innovation in service design.

 This proposed rulemaking governs the program, operational and fiscal aspects of the following: (a) home and community-based supports (HCBS) provided through the adult autism, consolidated and person/family directed support 1915(c) waiver programs; (b) Medicaid State plan HCBS for individuals with an intellectual disability or autism, such as targeted support management; and (c) services funded exclusively by grants to counties under the Mental Health and Intellectual Disability Act of 1966 (50 P.S. §§ 4101—4704) or Article XIV-B of the Human Services Code (62 P.S. §§ 1401-B—1410-B). This proposed rulemaking amends licensing regulations in Chapters 2380, 2390, 6400 and 6500 to eliminate duplication and conflict in the areas of training, rights, person-centered support plans (PSP), incident management, positive intervention and medication administration. This proposed rulemaking also rescinds and replaces Chapters 51 and 6200.

 This proposed rulemaking is needed to continue the Commonwealth's eligibility for Federal financial participation in the HCBS waiver programs. See 42 CFR Part 441 (relating to services: requirements and limits applicable to specific services). This proposed rulemaking protects the health, safety and well-being of the individuals receiving supports in individual-directed, family-based, community residential and day programs funded through the HCBS waivers, the Commonwealth's Title XIX State plan and State-funds-only allocations.

 This proposed rulemaking eliminates unnecessary language, streamlines processes and reduces the volume of regulation. This proposed rulemaking incorporates consistent and best practice terms, language and principles throughout the regulations.

Background

 Chapter 51 was published at 42 Pa.B. 3230 (June 9, 2012) under the authority of the act of June 30, 2011 (P.L. 89, No. 22) that permitted the Department of Public Welfare to promulgate certain assistance and eligibility regulations as final rulemakings through an abbreviated regulatory process. (The Department of Public Welfare was renamed the Department of Human Services by the act of September 24, 2014 (P.L. 2458, No. 132).) In response to numerous concerns about Chapter 51 from individuals who receive support, families, advocates, providers and county programs, in January 2015, the Department initiated a comprehensive revision of Chapter 51, applying a widely representative and interactive community participation process that encourages and values external stakeholder participation throughout the regulatory development, proposed rulemaking and final promulgation regulatory processes.

Requirements

 Proposed Chapter 6100 encompasses the program, operational and fiscal aspects of the following: three Office of Developmental Programs HCBS Federally-funded waiver programs including the consolidated waiver, the adult autism waiver and the person/family directed support waiver; Medicaid State plan HCBS for individuals with an intellectual disability or autism, such as targeted support management; and services funded exclusively by grants to counties under the Mental Health and Intellectual Disability Act of 1966 or Article XIV-B of the Human Services Code.

 This proposed rulemaking encompasses health, safety and well-being protections for individuals with a disability or autism who receive support in a licensed adult training facility, vocational facility, community home for individuals with an intellectual disability or family living home.

Summary of Major Revisions, Additions and Deletions

Chapter 6100. Support for individuals with an intellectual disability or autism

 Inclusion of base-funding. Chapter 6100 replaces Chapter 51. Chapter 6100 enlarges the scope of the chapter to incorporate program and operational provisions for services funded exclusively by grants to counties under the Mental Health and Intellectual Disability Act of 1966 or Article XIV-B of the Human Services Code. The inclusion of these services in the scope of this proposed rulemaking is intended to provide protection and support for individuals who are not served in an HCBS waiver program, but who receive similar supports and services through State-funds-only allocations. Only certain program and operational sections of this proposed rulemaking apply to these services. Specifically, the fiscal operations of the programs continue to be regulated under Chapter 4300 (relating to county mental health and intellectual disability fiscal manual).

 Provisions for individuals with autism. This proposed rulemaking incorporates provisions for the regulation of HCBS adult autism supports. Under Chapter 51, many regulatory exemptions were specified for the adult autism waiver, thereby creating a system of inconsistent opportunities for individuals with an intellectual disability versus individuals with autism. In response to concerns from individuals with autism and disability advocates, the Department proposes to thoroughly incorporate the adult autism waiver program into this proposed rulemaking. In some cases, best practice program concepts from the adult autism waiver are proposed for inclusion across the intellectual disability program; in other cases, similar health, safety and well-being protections afforded to individuals with an intellectual disability are proposed to apply to the adult autism program. The goal of the more comprehensive inclusion of the adult autism waiver in Chapter 6100 is to provide similar safeguards and opportunities for both individuals with autism and individuals with an intellectual disability.

 This proposed rulemaking expands the scope of Chapters 6400 and 6500 (relating to community homes for individuals with an intellectual disability or autism; and life sharing homes) to include individuals with autism. This proposed rulemaking codifies existing practice whereby community homes and family living homes that support individuals with autism are inspected and licensed under the same licensing regulations that govern homes serving individuals with intellectual disabilities. Chapters 2380 and 2390 (relating to adult training facilities; and vocational facilities) currently include individuals with autism.

 Improved flow and format. To aid in overall readability, rather than disperse regulatory exemptions and special program requirements throughout the chapter, the special program provisions and exemptions are listed at the end of the chapter. The special program sections include the adult autism waiver, agency with choice, support coordination and targeted support management services, organized health care delivery and vendor goods and services. This proposed format improves the flow and readability for the mainstream of programs affected by this proposed rulemaking and shortens the overall length of the regulations.

 Plain English and definitions. This proposed rulemaking uses plain English and consistent terminology. In addition, acronyms are kept to a minimum to aid in readability. Further, unnecessary language is proposed to be deleted making the regulations shorter and easier to read.

 Chapter 6200 rescission. Chapter 6200 is proposed to be rescinded. Chapter 6200 applies to non-HCBS supports, while Chapter 51 applies to HCBS supports; however, the provisions of the two chapters are unnecessarily different and require duplicative administrative systems. This proposed rulemaking includes the same updated room and board provisions for both HCBS and State-funds-only programs, providing application across the community system. The proposed rescission of regulations reduces the administrative burden for providers, the county programs and the Department.

 Federal compliance. The Commonwealth must demonstrate full compliance with the Federal requirements in 42 CFR Part 441 by March 17, 2019. This proposed rulemaking addresses the key components of 42 CFR Part 441.

 Reduction of licensing duplication. Four existing chapters of licensing regulations govern many of the same facilities that are also funded through the HCBS waivers, the Commonwealth's Title XIX State plan and State-funds-only allocations. To provide consistency among the HCBS provisions and the four licensing chapters, this proposed rulemaking includes revisions to the four licensing chapters to promulgate the same requirements for six major program and operational areas including staff training, rights, incident management, PSPs, positive interventions and medication administration. See the ''Chapters 2380, 2390, 6400 and 6500—licensing regulations'' portion of this proposed rulemaking for a detailed description of the proposed amendments to these chapters.

 Background check clarity. Changes are proposed to cast a wider net on the categories of persons who shall complete background checks. Household members, volunteers, life sharers and interns who provide a support and staff persons will require a criminal history check.

 Staff training overhaul. Traditionally, the licensing regulations have dictated the specific training courses that each staff person shall complete upon initial hire and on an annual basis. This proposed rulemaking takes a new approach whereby only four core courses are required, with much of the training program designed by the provider based on the needs of the individuals.

 As suggested by the external stakeholder regulation work group, latitude is provided for the provider to design its own training plan to meet its administrative needs for each staff position, while encompassing specifications of the individuals' PSP. Four core courses are required for all persons who provide HCBS: person-centeredness; rights; abuse prevention and reporting; and incident prevention and reporting. In sync with the community home licensing regulations, training in positive interventions is required if an individual served may have a dangerous behavior. Also consistent with licensing regulations, training in medications administration is required if the person will administer medications. The licensing regulations continue to require facility-based courses, such as fire safety, cardiopulmonary resuscitation and first aid.

 The proposed number of 24 annual training hours matches the number of hours currently required in Chapters 2380, 2390, 6400 and 6500. Only 12 training hours are required annually for management and other nondirect support staff persons, 8 hours of which are required in the four key areas (person-centeredness, rights, abuse and incidents), as these are core value and protection areas that everyone who works for the provider, including maintenance and office workers, shall understand and embrace.

 To provide truly integrated, person-centered and value-based supports, all members of the organization shall understand the core values and protection areas. This includes a maintenance worker, office worker or volunteer who may greet and interact with an individual, observe a reportable incident or have knowledge of an allegation of abuse.

 Expansion of individual rights. This proposed rulemaking encompasses a broad array of individual rights. Several of the rights are Federal requirements. Most of the rights are already enumerated under Chapter 6400, which are applicable for community homes. These rights shall be protected equally for an individual who receives support in the individual's own home, a family home, through nonfacility based supports, as well as in facility-based programs.

 Modification of the PSP. The individual support plan provisions have been streamlined to address the Federal requirements. ''Individual support plan (ISP)'' is proposed to be updated to ''PSP'' to align with the Federal language of ''person-centered'' plan. As requested by the external stakeholder regulation work group, clarification of the required documentation of support delivery for purposes of eligibility for Federal financial participation was also added.

 Use of positive interventions. This proposed rulemaking proposes to propel this Commonwealth forward as a leader of humane treatment of individuals with disabilities by prohibiting the use of chemical restraints, mechanical restraints, exclusion and many manual restraints. The use of a physical protective restraint is permitted by trained staff, in an emergency situation, to protect the life safety of the individual or others. A rights team shall review the use of a restraint and all rights violations. Several organizations, such as the Disability Rights Pennsylvania and The Arc, have encouraged and applauded the elimination of restraints.

 Facility characteristics. A proposed section addresses the Federal requirements for facility size and community location to promote integration into the community. See 42 CFR Part 441. This proposed rulemaking sets a maximum program capacity size of 4 individuals for residential facilities and 15 individuals at any one time for day facilities, with the caveat that with the Department's approval, existing residential facilities may be able to retain their current size limit of 8.

 In addition to the size restriction, facilities may not be located adjacent to or in close proximity to another day or residential human service facility, with an exception for existing programs, subject to the Department's approval.

 Array of payment options. This proposed rulemaking allows an array of payment options including fee-based, cost-based, managed care and other methodologies. This array of payment options is intended to allow the continued research, design and implementation of payment mechanisms to address the evolving needs of individuals with intellectual disabilities and autism over the coming decade. The Department and some providers agree that the current system of cost-based reimbursement for residential habilitation is costly and inefficient. The Department agrees that providers, advocates and self-advocates should be included in discussions to transition from the cost-based system to a more viable payment system.

 Refresh of the data used to establish fee schedule rates. This proposed rulemaking requires the refresh of data every 3 years. In addition, the Department will request public comment on the market-based factors prior to establishing new fee schedule rates.

 Fee-schedule criteria expanded. The factors considered to establish fees through the market-based approach have been expanded including individual needs, a review of the HCBS service definitions as provided in the Federally-approved waivers and waiver amendments and the associated costs, as well as the fiscal impact of compliance with Federal and Commonwealth laws and regulations and local ordinances. The Department may also consider other criteria that impact costs, such as the cost of living in a particular geographic area, if the criteria significantly affects staffing costs.

 Reduced requirement for reporting donations. In response to concerns from the external stakeholder regulation work group, and in particular nonprofit providers, this proposed rulemaking proposes to eliminate the reporting of an unrestricted donation that is not used for an allowable HCBS cost, a restricted donation used for a purpose other than an HCBS and for a noncash donation of $1,000 or less.

Chapters 2380, 2390, 6400 and 6500—Licensing regulations

 The Department proposes to amend Chapters 2380, 2390, 6400 and 6500 to mirror proposed Chapter 6100 in the areas of training, rights, person-centered support planning, incident reporting, positive intervention and medication administration. This proposed rulemaking significantly reduces duplication and conflict across proposed Chapter 6100 and the four chapters of licensing regulations. The proposal to reduce regulatory duplication by amending five chapters of regulations at the same time is precedent setting, requiring the cooperation and coordination of multiple Departmental program offices and functions. The Department supports the reduction of recordkeeping for providers, county programs and the Department. These reductions include: reduced compliance paperwork; reduced time spent on compliance monitoring by the designated managing entities and the Department; lessened compliance management functions required at the provider level; and the opportunity for reduced oversight, without reduced protections for the individuals.

Chapter 2380. Adult training facilities

 Staff training. Chapter 2380 requires 24 hours of annual training for the chief executive officer (CEO), full-time program specialists and direct support staff persons in the areas of human services, fire safety, first aid, Heimlich and cardiopulmonary resuscitation. This proposed rulemaking requires 24 hours of training for full-time and part-time direct support staff, but only 12 hours of training for management and other nondirect support staff, including the CEO. This proposed rulemaking reduces the number of annual training hours from 24 hours to 12 hours for the CEO. The proposed training sections are consistent with proposed Chapter 6100, making it administratively less complex to manage a comprehensive staff development program and easier to transfer staff persons from one program to another within a large, multifunction provider agency.

 Rights. The proposed adult training facilities regulation includes a more robust section on individual rights based on more current lists of rights in other licensing regulations. The proposed sections on individual rights are consistent with proposed Chapter 6100, making it easier to approach training on rights from a systemic perspective, manage regulatory compliance across a multiservice agency and assure the continuity of supports for the individual.

 PSP. This proposed rulemaking simplifies the PSP process, addresses the Federal requirements and most importantly matches the PSP requirements across the entire support system for the individual. Without the proposed amendments, the multiple chapters of regulations could: 1) require two support plans with two sets of procedures and content areas; 2) cause confusion as to which plan applies; 3) result in the poor coordination of supports for the individual; or 4) create management oversight challenges for the provider.

 Incident reporting. The requirements in Chapter 2380 to file a separate death report, create incident policies and maintain incident records for seizures, noninpatient hospitalization or emergency room visits are proposed to be deleted. Reporting timelines, however, remain unchanged. The types of incidents to be reported and the timelines for reporting are streamlined and in sync across the intellectual disability and autism programs. Further, the incident investigation procedure and reporting requirements codify current incident management practices.

 Positive intervention. This proposed rulemaking creates a system-wide approach to behavior management to avoid the conflict of applying differing methods of behavior management across varied service locations, treats individuals with dignity and respect, and uses positive interventions as a means to affect behavior.

 The broad definition of a ''restrictive procedure,'' the requirement to create restrictive procedure policies and the design of a detailed and free-standing restrictive procedure plan are reduced. Certain types of restraints such as chemical restraints, mechanical restraints, exclusion and many manual restraints are proposed to be no longer permitted. This proposed rulemaking creates a seamless and uniform system of positive interventions, restraint prohibitions and emergency protective restraint procedures. This proposed rulemaking incorporates positive intervention planning into the PSP process as opposed to developing a separate behavior plan.

 Medication administration. The section on medications clarifies the special training required for the administration of epinephrine for allergies, as well as for the administration of insulin injections.

Chapter 2390. Vocational facilities

 Staff training. Chapter 2390 requires 24 hours of annual training for the CEO, the program specialist, the production manager and floor supervisors (direct support workers) in the areas of human services, vocational services, fire safety, first aid, Heimlich and cardiopulmonary resuscitation. This proposed rulemaking requires 24 hours of training for direct support staff including program specialist, the production manager and the floor supervisors, but only 12 hours of annual training for management and other nondirect support staff. This proposed rulemaking reduces the number of annual training hours from 24 hours to 12 hours for the CEO. The proposed sections on training are consistent with proposed Chapter 6100, making it administratively less complex to manage a comprehensive staff development program and easier to transfer staff from one program to another within a large, multifunction provider agency.

 Rights. Proposed amendments to the vocational facilities regulation include the addition of a more robust section on individual rights. The proposed sections on individual rights are consistent with proposed Chapter 6100, making it easier to manage regulatory compliance across a multiservice agency and to assure continuity of supports for the individual.

 PSP. This proposed rulemaking simplifies the PSP process, addresses the Federal requirements and most importantly matches the PSP requirement across the entire support system for the individual. Without the proposed amendments, the multiple chapters of regulations could: 1) require two support plans with two sets of procedures and content areas; 2) cause confusion as to which plan applies; 3) result in poor coordination of supports for the individual; or 4) create management oversight challenges for the provider.

 Incident reporting. This proposed rulemaking clarifies the types of reportable incidents to coincide with the requirements in other licensing regulations, such as Chapters 2380 and 6400. Reporting timelines, however, remain unchanged. The types of incidents to be reported and the timelines for reporting are streamlined and in sync across the intellectual disability and autism programs. Further, the incident investigation procedures and reporting requirements codify current incident management practices.

 Positive intervention. Neither positive intervention nor the prohibition of restraints are currently addressed in Chapter 2390. This proposed rulemaking creates a system-wide approach to behavior management that avoids conflict of applying differing methods of behavior management across varied service locations, treats individuals with dignity and respect, and uses positive interventions as a means to affect behavior. This proposed rulemaking aligns the positive intervention requirements uniformly across all intellectual disability and autism programs. This proposed rulemaking creates a seamless and uniform system of positive intervention, restraint prohibitions and emergency protective hold procedures.

 Medications administration. A proposed section on medication administration is added to permit trained, nonmedically licensed staff persons to administer prescription medications, epinephrine injections for allergies and insulin injections.

Chapter 6400. Community homes for individuals with an intellectual disability or autism

 Scope. This proposed rulemaking expands the scope of Chapter 6400 to include individuals with autism. This proposed rulemaking codifies existing practice whereby community homes that support individuals with autism are inspected and licensed under the same licensing regulations that govern homes serving individuals with intellectual disabilities.

 Staff training. Chapter 6400 requires 24 hours of annual training for the CEO, full-time program specialists and direct support staff persons in the areas of human services, fire safety, first aid, Heimlich and cardiopulmonary resuscitation. This proposed rulemaking requires 24 hours of training for both full-time and part-time direct support staff, but only 12 hours of training for management and other nondirect support staff, including the CEO. This proposed rulemaking reduces the number of mandated training hours from 24 hours to 12 hours annually for the CEO. The proposed sections on training are consistent with proposed Chapter 6100, making it administratively less complex to manage the staff development program and easier to transfer staff from one program to another within a large, multifunction provider agency.

 Rights. Chapter 6400 addresses specific residential care rights such as privacy, communication, participation in planning and abuse protection. The proposed sections on individual rights are clarified and consistent with proposed Chapter 6100, making it easier to manage regulatory compliance across a multiservice agency and to assure continuity of supports for the individual.

 PSP. This proposed rulemaking simplifies the PSP process, addresses the Federal requirements and most importantly matches the PSP requirement across the entire support system for the individual. Without the proposed amendments, the multiple chapters of regulations could: 1) require two support plans with two sets of procedures and content areas; 2) cause confusion as to which plan applies; 3) result in the poor coordination of supports for the individual; or 4) create management oversight challenges for the provider.

 Incident reporting. The requirements in Chapter 6400 to file a separate death report, create incident policies and maintain incident records for seizures, noninpatient hospitalization or emergency room visits are proposed to be deleted. Reporting timelines, however, remain unchanged. The types of incidents to be reported and the timelines for reporting are streamlined and consistent across the intellectual disability and autism program. The incident investigation procedures and reporting requirements codify current incident management practices.

 Positive intervention. This proposed rulemaking creates a system-wide approach to behavior management that avoids conflict of applying differing methods of behavior management across varied service locations, treats individuals with dignity and respect, and uses positive interventions as a means to affect behavior. The broad definition of a ''restrictive procedure,'' the requirement to create written restrictive procedure policies and the design of a detailed and free-standing restrictive procedure plan are reduced. Certain types of restraints such as chemical restraints, mechanical restraints, exclusion and many manual restraints are proposed to be no longer permitted. This proposed rulemaking creates a seamless and uniform system of positive interventions, restraint prohibitions and emergency protective hold procedures. This proposed rulemaking incorporates positive intervention planning into the PSP process as opposed to developing a separate behavior plan.

 Medication administration. The section on medications clarifies the special training required for the administration of epinephrine for allergies.

Chapter 6500. Life sharing homes

 Scope. This proposed rulemaking expands the scope of Chapter 6500 to include individuals with autism. This proposed rulemaking codifies existing practice whereby family living homes that support individuals with autism are inspected and licensed under the same licensing regulations that govern homes serving individuals with intellectual disabilities.

 Terminology. ''Family living'' is proposed to be changed to ''life sharing'' to reflect the current terms used to describe the living arrangement.

 Staff training. Chapter 6500 requires 24 hours of annual training for the primary caregiver and full-time life sharing specialists in the areas of human services, fire safety, first aid, Heimlich and cardiopulmonary resuscitation. This proposed rulemaking requires 24 hours of training for the primary caregiver and life sharing specialists, with 8 hours of those hours in the areas of person-centeredness, abuse prevention and reporting, incident reporting and positive interventions if the individual served has a dangerous behavior. Training in fire safety and first aid, Heimlich and cardiopulmonary resuscitation continue to be required as part of the 24 hours. The proposed sections on training are consistent with proposed Chapter 6100, making it administratively less complex to manage a comprehensive staff development program and easier to transfer staff from one program to another within a large, multifunction provider agency.

 Rights. Chapter 6500 addresses civil rights, as well as specific residential care rights such as privacy, communication, participation in planning and abuse protection. The proposed sections on individual rights are clarified and consistent with proposed Chapter 6100, making it easier to manage regulatory compliance across a multiservice agency and to assure continuity of supports for the individual.

 PSP. This proposed rulemaking simplifies the PSP process, addresses the Federal requirements and most importantly matches the PSP requirement across the entire support system for the individual. Without the proposed amendments, the multiple chapters of regulations could: 1) require two support plans with two sets of procedures and content areas; 2) cause confusion as to which plan applied under what circumstances; 3) result in the poor coordination of supports for the individual; or 4) create unmanageable management oversight challenges for the provider.

 Incident reporting. The requirements in Chapter 6500 to file a separate death report and maintain incident records for seizures, noninpatient hospitalization or emergency room visits are proposed to be deleted. Reporting timelines, however, remain unchanged. The types of incidents to be reported and the timelines for reporting are streamlined and consistent across the intellectual disability service system. The incident investigation procedures and reporting requirements codify current incident management practices.

 Positive intervention. This proposed rulemaking creates a system-wide approach to behavior management that avoids conflict of applying differing methods of dangerous behavior management across varied service locations, treats individuals with dignity and respect, and uses positive interventions as a means to affect behavior. The broad definition of a ''restrictive procedure,'' the requirement to create written restrictive procedure policies and the design of a detailed and free-standing restrictive procedure plan are proposed to be deleted. Certain types of restraints such as chemical restraints, mechanical restraints, exclusion and many manual restraints are proposed to be no longer permitted. This proposed rulemaking creates a seamless and uniform system of positive interventions, restraint prohibitions and emergency protective hold procedures. This proposed rulemaking incorporates positive intervention planning into the PSP process as opposed to developing a separate behavior plan.

 Medications administration. The section on medications clarifies the special training required for the administration of epinephrine for allergies. Life sharing caregivers who administer medications would be required to take and pass the Department's medication administration training course, as opposed to receiving training from the individual's health care practitioner. The Department's medication administration training course is well-developed and has been refined continually since its inception in 1982, making it effective, meaningful and accessible for life sharing caregivers.

Affected Individuals and Organizations

 Proposed Chapter 6100 applies to a broad scope of programs receiving Commonwealth and Federal funds. This proposed rulemaking applies to approximately 944 HCBS and base-funded providers providing support to more than 50,000 individuals with an intellectual disability or autism.

 The proposed amendments to Chapters 2380, 2390, 6400 and 6500 apply to approximately 4,900 community homes serving 15,000 individuals, 1,700 family living homes serving 2,200 individuals, 370 adult training facilities serving 13,900 individuals and 170 vocational facilities serving 11,400 individuals.

 The Department supports and is committed to managing an active and open community participating process throughout the development of this proposed rulemaking. The public process included the following.

 From February through August 2015, the Department held 9 days of external stakeholder regulation work group meetings with a diverse group of stakeholders. A total of 43 persons were selected to represent the broad range of interests, experiences and ideas including self-advocates, advocates, county programs, providers, universities and provider organizations. The purpose of the work group was for the Department to listen to the concerns and suggestions from interested parties and to cultivate constructive dialogue and promote an understanding of the views of others.

 Each of the major sections of the draft rulemaking were reviewed and discussed by the work group on three occasions: first, a review of any requested changes to Chapter 51; second, a review and comment on the Department's draft regulatory language; and third, a comprehensive review of each section of the draft rulemaking. Work group notes and a revised draft rulemaking were shared with the work group immediately following each meeting. The work group was encouraged to comment at the meetings and to submit written comments following each meeting. Many work group members shared the draft proposed rulemaking with other interested parties outside the work group. Nonwork group members were encouraged to attend the regulation meetings as observers and submit written comments. More than 80 written public comments were received and carefully reviewed and considered in drafting this proposed rulemaking. Numerous edits were made to the draft rulemaking from February through September 2015 in response to public comment.

 The Department commends and greatly appreciates the expertise, time and attention contributed by the work group, as well as the productive and forward-thinking comments provided by the work group and others who contributed written comments.

 In addition to the regulation work group meetings, 22 meetings with Statewide and regional advocacy, provider and county organizations, and representatives were held to discuss specific areas of this proposed rulemaking. These discussions focused on the constituent issues that are important to particular affected parties. The Department appreciates the constructive and helpful advice and suggestions provided during these meetings.

 At the request of the work group, the Secretary of the Department of Human Services convened a fiscal sub-work group to review and consider the future payment system direction of the Commonwealth's HCBS program. In December 2015, the sub-work group presented its report to the Secretary of Human Services. While the formal recommendations of the sub-work group did not require regulatory amendments, several regulation edits were made in response to comments from the sub-work group.

 The Department will reconvene the external stakeholder regulation work group following publication of this proposed rulemaking to review and consider edits to this proposed rulemaking based on the analysis of the formal public comments received.

Accomplishments and Benefits

 This proposed rulemaking supports individuals with an intellectual disability or autism to achieve greater independence, choice and opportunity in their lives. This proposed rulemaking strengthens community supports by promoting equity, innovation, person-centered approaches and community participation.

 Benefits for self-advocates, families and advocates include strengthened individual rights, assistance to locate and sustain employment, strict discharge conditions and procedures, minimum notice required for transition to a new provider, prohibition of restraints except for an emergency protective physical hold, a rights team to review potential rights violations, improved protections for individuals with autism and medication administration by trained, nonmedically licensed persons.

 Benefits for providers include the reduced administrative burden by coordinating multiple chapters of Departmental regulations, the inclusion of autism programs in the core standards to alleviate the administrative burden of managing dual processes, the ability to submit innovation projects, a flexible staff training plan designed by the provider, the reduction in the conflict of interest requirements, clarification of the documentation required to support a claim, flexible payment options to support potential changes to the payment methodologies, more frequent updates of the market-based data for fee-based rates and the reduction of the donation reporting requirements.

 Benefits for county intellectual disability programs include clarity of roles for the support coordinators and targeted support managers, deletion of conflicting PSP time frames between the Federal waivers and the multiple chapters of regulations, acknowledgement of county human rights committees and the regulation of services funded exclusively by grants to counties. These proposed amendments provide consistent program requirements on a Statewide basis to support the ease of county-to-county transitions, as well as transitions from services and supports funded through State-funds-only allocations to HCBS Federal funding.

 Additional benefits include compliance with the Federal requirements to support continued Federal HCBS funding, the reduced volume of regulations with improved coordination efforts across multiple chapters of regulations providing an opportunity for streamlined compliance monitoring, consistent program requirements for the individuals across multiple funding sources, aligning intellectual disability and autism standards to the benefit of both programs and establishing a baseline of core values across multiple programs.

Fiscal Impact

 The provider's regulatory compliance management and associated self-monitoring costs will be reduced. By simplifying and shortening the length of the regulations, and by coordinating the program and operational requirements across multiple chapters of licensing regulations as well as across multiple funding streams, the complexity of regulatory compliance management is significantly simplified. The cost impact for a provider will vary based on the pay scale and number of management positions devoted to regulatory compliance.

 Some new costs may be associated with this proposed rulemaking regarding background checks and staff training since a wider net has been cast as to who shall submit a background check and receive training in areas such as rights, abuse and incidents. Under this proposed rulemaking, all persons who provide supports should submit a background check to identify any history of abuse, assault, theft or other crimes that may impact the well-being of an individual. This provision is supported by many self-advocates and advocates. In addition, it is critical that persons who provide reimbursed supports have the minimum training necessary to identify and know what to do if they observe abuse, an incident or a violation of rights. This includes a volunteer, a student and a consultant who provides supports and will be alone with an individual. This does not include the individual's friends or family who do not provide a reimbursed support.

 The fee for the completion of a Pennsylvania State Police background check is $8. The fee for the completion of a child abuse history certification is $8. The cost for the completion of a background check and a child abuse history certification may be absorbed by the job applicant or by the employer. The overall cost impact relating to background checks and training will vary, as some providers already require background checks on all persons and some provide training for a broader scope than is currently required by regulation, thus negating or minimizing a cost impact.

 The Department convened a fiscal sub-work group of the external stakeholder regulation work group to study alternatives to the current fee-based and cost-based payment systems. This sub-work group met for multiple months through 2015, and continues to meet to research and recommend long-term payment system initiatives and solutions. This proposed rulemaking provides an array of payment mechanisms including fee-based, cost-based, managed care and other rate-setting methodologies so that payment alternatives may be further examined. This full array of payment options is proposed to allow the Department, in consultation with stakeholders, to continue to research, design and implement payment mechanisms to address the evolving needs of individuals with intellectual disabilities and autism over the coming decade. The fiscal impact of a change to the Department's payment system cannot be estimated until new payment options are determined, an effective date is established and updated budget figures are available.

Paperwork Requirements

 Increased paperwork will result from the expansion of the scope of the persons for which background checks and training is required.

 Decreased paperwork for the provider will result in the reduction of the provider's regulatory compliance efforts as a result of the coordination of multiple chapters of regulations and the reduction in the number of regulations. An opportunity is provided for the Department and the county programs to better coordinate and reduce duplicative monitoring efforts between licensing and waiver compliance management; this monitoring reduction will reduce paperwork for the provider, the county program and the Department.

 Decreased provider paperwork will result from the elimination of duplicate and conflicting incident reporting requirements for licensing and waiver compliance. Also eliminated is the provider paperwork required by licensing regulations to maintain a record of incidences that are not reportable, such as minor illnesses. While many providers will choose to retain this documentation as best practice, the Department will no longer review this documentation for regulatory compliance.

 The PSP is simplified and the process is streamlined, thus reducing paperwork. One comprehensive and coordinated PSP is required across all programs and funding streams. This will reduce the paperwork for the provider, the county program and the Department.

 Decreased provider paperwork will result from the reduction in the conflict of interest and the donation reporting requirements.

Effective Date

 This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin. The Department, however, will consider establishing varied effective dates for certain regulations to coincide with a Commonwealth fiscal year.

Public Comment

 Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Julie Mochon, Human Service Program Specialist Supervisor, Office of Developmental Programs, Room 502, Health and Welfare Building, 625 Forster Street, Harrisburg, PA 17120, jmochon@pa.gov within 45 calendar days after the date of publication of this proposed rulemaking. Reference Regulation No. 14-540 when submitting comments.

 Persons with a disability who require an auxiliary aid or service may submit comments by using the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 25, 2016, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Human Services and the Senate Committee on Public Health and Welfare. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Department, the General Assembly and the Governor.

THEODORE DALLAS, 
Secretary

 Fiscal Note: 14-540. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 55. HUMAN SERVICES

PART I. DEPARTMENT OF HUMAN SERVICES

Subpart E. HOME AND COMMUNITY-BASED SERVICES

CHAPTER 51. [OFFICE OF DEVELOPMENTAL PROGRAMS HOME AND COMMUNITY-BASED SERVICES] (Reserved)

 (Editor's Note: As part of this proposed rulemaking, the Department is proposing to rescind Chapter 51 which appears in 55 Pa. Code pages 51-1—51-66, serial pages (381205), (381206), (375509), (375510), (361273), (361274), (365585), (365586), (361277)—(361280), (365587), (365588), (361283), (361284), (365589), (365590), (361287)—(361292), (365591), (365592), (361295)—(361312), (365593), (365594), (361315)—(361322), (365595), (365596) and (361325)—(361334).)

§§ 51.1—51.4. (Reserved).

§§ 51.11—51.17. (Reserved).

§ 51.17a. (Reserved).

§§ 51.18—51.34. (Reserved).

§§ 51.41—51.48. (Reserved).

§§ 51.51—51.53. (Reserved).

§ 51.61. (Reserved).

§ 51.62. (Reserved).

§§ 51.71—51.75. (Reserved).

§§ 51.81—51.103. (Reserved).

§ 51.111. (Reserved).

§§ 51.121—51.128. (Reserved).

§ 51.131. (Reserved).

§ 51.141. (Reserved).

§§ 51.151—51.157. (Reserved).

PART IV. ADULT SERVICES MANUAL

Subpart D. NONRESIDENTIAL AGENCIES/FACILITIES/SERVICES

CHAPTER 2380. ADULT TRAINING FACILITIES

GENERAL PROVISIONS

§ 2380.3. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

 Adult—A person 18 years of age or older.

 Adult training facility or facility—A building or portion of a building in which services are provided to four or more individuals, who are 59 years of age or younger and who do not have a dementia-related disease as a primary diagnosis, for part of a 24-hour day, excluding care provided by relatives. Services include the provision of functional activities, assistance in meeting personal needs and assistance in performing basic daily activities.

 [Content discrepancy—A difference between what was determined at the ISP meeting by the plan team and what is documented in the written ISP.]

 Department—The Department of Human Services of the Commonwealth.

 Direct service worker—A person whose primary job function is to provide services to an individual who attends the provider's facility.

 [Documentation—Written statements that accurately record details, substantiate a claim or provide evidence of an event.]

 Fire safety expert—A local fire department, fire protection engineer, State certified fire protection instructor, college instructor in fire science, county or State fire school, volunteer fire person trained by a county or State fire school or an insurance company loss control representative.

 [ISP—Individual Support Plan—The comprehensive document that identifies services and expected outcomes for an individual.]

 Individual—An adult with disabilities who receives care in an adult training facility and who has developmental needs that require assistance to meet personal needs and to perform basic daily activities. Examples of adults with disabilities include adults who exhibit one or more of the following:

 (i) A physical disability such as blindness, visual impairment, deafness, hearing impairment, speech or language impairment, or a physical handicap.

 (ii) A mental illness.

 (iii) A neurological disability such as cerebral palsy, autism or epilepsy.

 (iv) An intellectual disability.

 (v) A traumatic brain injury.

 [Outcomes—Goals the individual and individual's plan team choose for the individual to acquire, maintain or improve.

 Plan lead—The program specialist or family living specialist, as applicable, when the individual is not receiving services through an SCO.

 Plan team—The group that develops the ISP.]

 PSP—Person-centered support plan.

 Provider—An entity or person that enters into an agreement with the Department to deliver a service to an individual.

 Restraint—A physical, chemical or mechanical intervention used to control acute, episodic behavior that restricts the movement or function of the individual or a portion of the individual's body, including an intervention approved as part of the PSP or used on an emergency basis.

 SC—Supports coordinator—An SCO employee whose primary job functions are to locate, coordinate and monitor services provided to an individual when the individual is receiving services from an SCO.

 SCO—Supports coordination organization—A provider that delivers the services of locating, coordinating and monitoring services provided to an individual.

 Services—Actions or assistance provided to the individual to support the achievement of an outcome.

GENERAL REQUIREMENTS

§ 2380.17. [Reporting of unusual incidents.] Incident report and investigation.

 [(a) An unusual incident is:

 (1) Abuse or suspected abuse of an individual.

 (2) Injury, trauma or illness requiring inpatient hospitalization, that occurs while the individual is at the facility or under the supervision of the facility.

 (3) A suicide attempt by an individual.

 (4) A violation or alleged violation of an individual's rights.

 (5) An individual whose absence is unaccounted for, and is therefore presumed to be at risk.

 (6) The misuse or alleged misuse of an individual's funds or property.

 (7) An outbreak of a serious communicable disease, as defined in 28 Pa. Code § 27.2 (relating to specific identified reportable diseases, infections and conditions) to the extent that confidentiality laws permit reporting.

 (8) An incident requiring the services of a fire department or law enforcement agency.

 (9) A condition, except for snow or ice conditions, that results in closure of the facility for more than 1 scheduled day of operation.

 (b) Written policies and procedures on the prevention, reporting, investigation and management of unusual incidents shall be developed and kept at the facility.

 (c) The facility shall orally notify, within 24 hours after abuse or suspected abuse of an individual or an incident requiring the services of a fire department or law enforcement agency occurs:

 (1) The county mental health and intellectual disability program of the county in which the facility is located if the individual involved in the unusual incident has mental illness or an intellectual disability.

 (2) The funding agency.

 (3) The appropriate regional office of the Department.

 (d) The facility shall initiate an investigation of the unusual incident and complete and send copies of an unusual incident report on a form specified by the Department, within 72 hours after an unusual incident occurs, to:

 (1) The county mental health and intellectual disability program of the county in which the facility is located if the individual involved in the unusual incident has mental illness or an intellectual disability.

 (2) The funding agency.

 (3) The appropriate regional office of the Department.

 (e) At the conclusion of the investigation the facility shall send a copy of the final unusual incident report to:

 (1) The county mental health and intellectual disability program of the county in which the facility is located if the individual involved in the unusual incident has mental illness or an intellectual disability.

 (2) The funding agency.

 (3) The appropriate regional office of the Department.

 (f) A copy of unusual incident reports relating to an individual shall be kept in the individual's record.

 (g) A copy of unusual incident reports relating to the facility itself, such as those requiring the services of a fire department, shall be kept.

 (h) The individual's family, if appropriate, and the residential services provider, if applicable, shall be immediately notified in the event of an unusual incident relating to the individual.]

 (a) The facility shall report the following incidents, alleged incidents and suspected incidents in the Department's information management system or on a form specified by the Department within 24 hours of discovery by a staff person:

 (1) Death.

 (2) Suicide attempt.

 (3) Inpatient admission to a hospital.

 (4) Visit to an emergency room.

 (5) Abuse.

 (6) Neglect.

 (7) Exploitation.

 (8) An individual who is missing for more than 24 hours or who could be in jeopardy if missing at all.

 (9) Law enforcement activity.

 (10) Injury requiring treatment beyond first aid.

 (11) Fire requiring the services of the fire department.

 (12) Emergency closure.

 (13) Use of a restraint.

 (14) Theft or misuse of individual funds.

 (15) A violation of individual rights.

 (b) The individual and the persons designated by the individual shall be notified immediately upon discovery of an incident relating to the individual.

 (c) The facility shall keep documentation of the notification in subsection (b).

 (d) The incident report, redacted to exclude information about another individual and the reporter, unless the reporter is the individual who receives the report, shall be available to the individual and persons designated by the individual, upon request.

 (e) The facility shall take immediate action to protect the health, safety and well-being of the individual following the initial knowledge or notice of an incident, alleged incident and suspected incident.

 (f) The facility shall initiate an investigation of an incident within 24 hours of discovery by a staff person.

 (g) A Department-certified incident investigator shall conduct the incident investigation of the incident listed in subsection (a).

 (h) The facility shall finalize the incident report in the Department's information management system or on a form specified by the Department within 30 days of discovery of the incident by a staff person.

 (i) The facility shall provide the following information to the Department as part of the final incident report:

 (1) Additional detail about the incident.

 (2) The results of the incident investigation.

 (3) A description of the corrective action taken in response to an incident.

 (4) Action taken to protect the health, safety and well-being of the individual.

 (5) The person responsible for implementing the corrective action.

 (6) The date the corrective action was implemented or is to be implemented.

 § 2380.18. [Reporting of deaths.] Incident procedures to protect the individual.

 [(a) The facility shall complete and send copies of a death report on a form specified by the Department, within 24 hours after a death of an individual that occurs at the facility or while under the supervision of the facility, to:

 (1) The county mental health and intellectual disability program of the county in which the facility is located if the individual had mental illness or an intellectual disability.

 (2) The funding agency.

 (3) The regional office of the Department.

 (b) The facility shall investigate and orally notify, within 24 hours after an unusual or unexpected death occurs:

 (1) The county mental health and intellectual disability program of the county in which the facility is located if the individual had mental illness or an intellectual disability.

 (2) The funding agency.

 (3) The regional office of the Department.

 (c) A copy of death reports shall be kept in the individual's record.

 (d) The individual's family, and the residential service provider, if applicable, shall be immediately notified in the event of a death of an individual.]

 (a) In investigating an incident, the facility shall review and consider the following needs of the affected individual:

 (1) Potential risks.

 (2) Health care information.

 (3) Medication history and current medication.

 (4) Behavioral health history.

 (5) Incident history.

 (6) Social needs.

 (7) Environmental needs.

 (8) Personal safety.

 (b) The facility shall monitor an individual's risk for recurring incidents and implement corrective action, as appropriate.

 (c) The facility shall work cooperatively with the PSP team to revise the PSP if indicated by the incident investigation.

§ 2380.19. [Record of incidents.] Incident analysis.

 [The facility shall maintain a record of an individual's illnesses, traumas and injuries requiring medical treatment but not inpatient hospitalization, and seizures that occur at the facility or while under the supervision of the facility.]

 (a) The facility shall complete the following for each confirmed incident:

 (1) Analysis to determine the root cause of the incident.

 (2) Corrective action.

 (3) A strategy to address the potential risks to the affected individual.

 (b) The facility shall review and analyze incidents and conduct a trend analysis at least every 3 months.

 (c) The facility shall identify and implement preventive measures to reduce:

 (1) The number of incidents.

 (2) The severity of the risks associated with the incident.

 (3) The likelihood of an incident recurring.

 (d) The facility shall educate staff persons and the individual based on the circumstances of the incident.

 (e) The facility shall analyze incident data continuously and take actions to mitigate and manage risks.

§ 2380.21. [Civil] Individual rights.

 [(a) An individual may not be discriminated against because of race, color, religious creed, disability, handicap, ancestry, national origin, age or sex.

 (b) The facility shall develop and implement civil rights policies and procedures. Civil rights policies and procedures shall include the following:

 (1) Nondiscrimination in the provision of services, admissions, placements, facility usage, referrals and communications with individuals who are nonverbal or non-English speaking.

 (2) Physical accessibility and accommodation for individuals with physical disabilities.

 (3) The opportunity to lodge civil rights complaints.

 (4) Informing individuals on their right to register civil rights complaints.]

 (a) An individual may not be deprived of rights as provided under subsections (b)—(s).

 (b) An individual shall be continually supported to exercise the individual's rights.

 (c) An individual shall be provided the support and accommodation necessary to be able to understand and actively exercise the individual's rights.

 (d) An individual may not be reprimanded, punished or retaliated against for exercising the individual's rights.

 (e) A court's written order that restricts an individual's rights shall be followed.

 (f) A court-appointed legal guardian may exercise rights and make decisions on behalf of an individual in accordance with a court order.

 (g) An individual who has a court-appointed legal guardian, or who has a court order restricting the individual's rights, shall be involved in decision making in accordance with the court order.

 (h) An individual has the right to designate persons to assist in decision making on behalf of the individual.

 (i) An individual may not be discriminated against because of race, color, creed, disability, religious affiliation, ancestry, gender, gender identity, sexual orientation, national origin or age.

 (j) An individual has the right to civil and legal rights afforded by law, including the right to vote, speak freely, and practice the religion of his choice or to practice no religion.

 (k) An individual may not be abused, neglected, mistreated, exploited, abandoned or subjected to corporal punishment.

 (l) An individual shall be treated with dignity and respect.

 (m) An individual has the right to make choices and accept risks.

 (n) An individual has the right to refuse to participate in activities and supports.

 (o) An individual has the right to privacy of person and possessions.

 (p) An individual has the right of access to and security of the individual's possessions.

 (q) An individual has the right to voice concerns about the supports the individual receives.

 (r) An individual has the right to participate in the development and implementation of the PSP.

 (s) An individual's rights shall be exercised so that another individual's rights are not violated.

 (t) Choices shall be negotiated by the affected individuals in accordance with the facility's procedures for the individuals to resolve differences and make choices.

 (u) The facility shall inform and explain individual rights to the individual, and persons designated by the individual, upon admission to the facility and annually thereafter.

 (v) The facility shall keep a copy of the statement signed by the individual or the individual's court-appointed legal guardian, acknowledging receipt of the information on individual rights.

 (Editor's Note: The following section is new and printed in regular type to enhance readability.)

§ 2380.26. Applicable laws and regulations.

 The facility shall comply with applicable Federal, State and local laws, regulations and ordinances.

STAFFING

§ 2380.33. Program specialist.

 (a) At least [one] 1 program specialist shall be assigned for every 30 individuals, regardless of whether they meet the definition of individual in § 2380.3 (relating to definitions).

 (b) The program specialist shall be responsible for the following:

 [(1) Coordinating and completing assessments.

 (2) Providing the assessment as required under § 2380.181(f) (relating to assessment).

 (3) Participating in the development of the ISP, including annual updates and revisions of the ISP.

 (4) Attending the ISP meetings.

 (5) Fulfilling the role of plan lead, as applicable, under §§ 2380.182 and 2380.186(f) and (g) (relating to development, annual update and revision of the ISP; and ISP review and revision).

 (6) Reviewing the ISP, annual updates and revisions under § 2380.186 for content accuracy.

 (7) Reporting content discrepancy to the SC or plan lead, as applicable, and plan team members.

 (8) Implementing the ISP as written.

 (9) Supervising, monitoring and evaluating services provided to the individual.

 (10) Reviewing, signing and dating the monthly documentation of an individual's participation and progress toward outcomes.

 (11) Reporting a change related to the individual's needs to the SC or plan lead, as applicable, and plan team members.

 (12) Reviewing the ISP with the individual as required under § 2380.186.

 (13) Documenting the review of the ISP as required under § 2380.186.

 (14) Providing the documentation of the ISP review to the SC or plan lead, as applicable, and plan team members as required under § 2380.186(d).

 (15) Informing plan team members of the option to decline the ISP Review documentation as required under § 2380.186(e).

 (16) Recommending a revision to a service or outcome in the ISP as provided under § 2380.186(c)(4).

 (17) Coordinating the services provided to an individual.

 (18) Coordinating the training of direct service workers in the content of health and safety needs relevant to each individual.

 (19) Developing and implementing provider services as required under § 2380.188 (relating to provider services).]

 (1) Coordinating the completion of assessments.

 (2) Participating in the PSP process, PSP development, PSP team reviews and the implementation of the PSP in accordance with this chapter.

 (3) Providing and supervising activities for the individuals in accordance with the PSPs.

 (4) Supporting the integration of individuals in the community.

 (5) Supporting individual communication and involvement with families and friends.

 (c) A program specialist shall have one of the following groups of qualifications:

 (1) A master's degree or above from an accredited college or university and 1 year of work experience working directly with persons with disabilities.

 (2) A bachelor's degree from an accredited college or university and 2 years of work experience working directly with persons with disabilities.

 (3) An associate's degree or 60 credit hours from an accredited college or university and 4 years of work experience working directly with persons with disabilities.

§ 2380.35. Staffing.

 (a) A minimum of one direct service worker for every six individuals shall be physically present with the individuals at all times individuals are present at the facility, except while staff persons are attending meetings or training at the facility.

 (b) While staff persons are attending meetings or training at the facility, a minimum of one staff person for every ten individuals shall be physically present with the individuals at all times individuals are present at the facility.

 (c) A minimum of two staff persons shall be present with the individuals at all times.

 (d) An individual may be left unsupervised for specified periods of time if the absence of direct supervision is consistent with the individual's assessment and is part of the individual's [ISP] PSP, as an outcome which requires the achievement of a higher level of independence.

 (e) The staff qualifications and staff ratio as specified in the [ISP] PSP shall be implemented as written, including when the staff ratio is greater than required under subsections (a), (b) and (c).

 (f) An individual may not be left unsupervised solely for the convenience of the facility or the direct service worker.

§ 2380.36. [Staff] Emergency training.

 [(a) The facility shall provide orientation for staff persons relevant to their responsibilities, the daily operation of the facility and policies and procedures of the facility before working with individuals or in their appointed positions.

 (b) The chief executive officer shall have at least 24 hours of training relevant to human services or administration annually.

 (c) Program specialists and direct service workers who are employed for more than 40 hours per month shall have at least 24 hours of training relevant to human services annually.

 (d) Program specialists and direct service workers shall have training in the areas of services for people with disabilities and program planning and implementation, within 30 calendar days after the day of initial employment or within 12 months prior to initial employment.

 (e)] (a) Program specialists and direct service workers shall be trained before working with individuals in general firesafety, evacuation procedures, responsibilities during fire drills, the designated meeting place outside the building or within the fire safe area in the event of an actual fire, smoking safety procedures if individuals or staff persons smoke at the facility, the use of fire extinguishers, smoke detectors and fire alarms, and notification of the local fire department as soon as possible after a fire is discovered.

 [(f)] (b) Program specialists and direct service workers shall be trained annually by a firesafety expert in the training areas specified in subsection [(f)] (a).

 [(g)] (c) There shall be at least [one] 1 staff person for every 18 individuals, with a minimum of [two] 2 staff persons present at the facility at all times who have been trained by an individual certified as a trainer by a hospital or other recognized health care organization, in first aid, Heimlich techniques and cardio-pulmonary resuscitation within the past year. If a staff person has formal certification from a hospital or other recognized health care organization that is valid for more than 1 year, the training is acceptable for the length of time on the certification.

 [(h) Records of orientation and training, including the training source, content, dates, length of training, copies of certificates received and staff persons attending, shall be kept.]

 (Editor's Note: Sections 2380.37—2380.39 are new and printed in regular type to enhance readability.)

§ 2380.37. Annual training plan.

 (a) The facility shall design an annual training plan based on the needs of the individuals as specified in the individuals' PSPs, other data and analysis indicating staff person training needs and as required under § 2380.39 (relating to annual training).

 (b) The annual training plan must include the orientation program as specified in § 2380.38 (relating to orientation program).

 (c) The annual training plan must include training aimed at improving the knowledge, skills and core competencies of the staff persons to be trained.

 (d) The annual training plan must include the following:

 (1) The title of the position to be trained.

 (2) The required training courses, including training course hours, for each position.

§ 2380.38. Orientation program.

 (a) Prior to working alone with individuals, and within 30 days after hire, the following shall complete the orientation program as described in subsection (b):

 (1) Management, program, administrative and fiscal staff persons.

 (2) Dietary, housekeeping, maintenance and ancillary staff persons.

 (3) Direct service workers, including full-time and part-time staff persons.

 (4) Volunteers who will work alone with individuals.

 (5) Paid and unpaid interns who will work alone with individuals.

 (6) Consultants who will work alone with individuals.

 (b) The orientation program must encompass the following areas:

 (1) The application of person-centered practices, including respecting rights, facilitating community integration, honoring choice and supporting individuals in maintaining relationships.

 (2) The prevention, detection and reporting of abuse, suspected abuse and alleged abuse in accordance with sections 701—708 of the Older Adults Protective Services Act (35 P.S. §§ 10225.701—10225.708), 23 Pa.C.S. §§ 6301—6386 (relating to Child Protective Services Law), the Adult Protective Services Act (35 P.S. §§ 10210.101—10210.704) and applicable protective services regulations.

 (3) Individual rights.

 (4) Recognizing and reporting incidents.

 (5) Job-related knowledge and skills.

§ 2380.39. Annual training.

 (a) The following staff persons shall complete 24 hours of training each year:

 (1) Direct service workers, including full-time and part-time staff persons.

 (2) Direct supervisors of direct service workers.

 (3) Positions required by this chapter.

 (b) The following staff persons shall complete 12 hours of training each year:

 (1) Management, program, administrative and fiscal staff persons.

 (2) Dietary, housekeeping, maintenance and ancillary staff persons.

 (3) Consultants who work alone with individuals.

 (4) Volunteers who work alone with individuals.

 (5) Paid and unpaid interns who work alone with individuals.

 (c) A minimum of 8 hours of the annual training hours specified in subsections (a) and (b) must encompass the following areas:

 (1) The application of person-centered practices, including respecting rights, facilitating community integration, honoring choice and supporting individuals in maintaining relationships.

 (2) The prevention, detection and reporting of abuse, suspected abuse and alleged abuse in accordance with sections 701—708 of the Older Adults Protective Services Act (35 P.S. §§ 10225.701—10225.708), 23 Pa.C.S. §§ 6301—6386 (relating to Child Protective Services Law), the Adult Protective Services Act (35 P.S. §§ 10210.101—10210.704) and applicable protective services regulations.

 (3) Individual rights.

 (4) Recognizing and reporting incidents.

 (5) The safe and appropriate use of positive interventions if the staff person will provide a support to an individual with a dangerous behavior.

 (d) The balance of the annual training hours must be in areas identified by the facility in the facility's annual training plan as required under § 2380.37 (relating to annual training plan).

 (e) All training, including those training courses identified in subsections (c) and (d), must be included in the provider's annual training plan.

 (f) Records of orientation and training, including the training source, content, dates, length of training, copies of certificates received and persons attending, shall be kept.

 (g) A training record for each person trained shall be kept.

MEDICATIONS

§ 2380.121. [Storage of medications.] Self-administration.

 [(a) Prescription and nonprescription medications shall be kept in their original containers, except for medications of individuals who self-administer medications and keep their medications in personal daily or weekly dispensing containers.

 (b) Prescription and nonprescription medications shall be kept in an area or container that is locked.

 (c) Prescription medications stored in a refrigerator shall be kept in a separate locked container.

 (d) Prescription and nonprescription medications shall be stored under proper conditions of sanitation, temperature, moisture and light.

 (e) Discontinued prescription medications shall be returned to the individual's family or residential program for proper disposal.]

 (a) The facility shall provide an individual who has a prescribed medication with assistance, as needed, for the individual's self-administration of the medication.

 (b) Assistance in the self-administration of medication includes helping the individual to remember the schedule for taking the medication, offering the individual the medication at the prescribed times, opening a medication container and storing the medication in a secure place.

 (c) The facility shall provide or arrange for assistive technology to support the individual's self-administration of medications.

 (d) The PSP must identify if the individual is unable to self-administer medications.

 (e) To be considered able to self-administer medications, an individual shall do all of the following:

 (1) Recognize and distinguish the individual's medication.

 (2) Know how much medication is to be taken.

 (3) Know when the medication is to be taken. This knowledge may include reminders of the schedule and offering the medication at the prescribed times as specified in subsection (b).

 (4) Take or apply the individual's own medication with or without the use of assistive technology.

§ 2380.122. [Labeling of medications.] Medication administration.

 [(a) The original container for prescription medications shall be labeled with a pharmaceutical label that includes the individual's name, the name of the medication, the date the prescription was issued, the prescribed dose and the name of the prescribing physician.

 (b) Nonprescription medications, except for medications of individuals who self-administer medications, shall be labeled with the original label.]

 (a) A facility whose staff persons are qualified to administer medications as specified in subsection (b) may provide medication administration for an individual who is unable to self-administer his prescribed medication.

 (b) A prescription medication that is not self-administered shall be administered by one of the following:

 (1) A licensed physician, licensed dentist, licensed physician's assistant, registered nurse, certified registered nurse practitioner, licensed practical nurse or licensed paramedic.

 (2) A person who has completed the medication administration training as specified in § 2380.129 (relating to medication administration training) for the medication administration of the following:

 (i) Oral medications.

 (ii) Topical medications.

 (iii) Eye, nose and ear drop medications.

 (iv) Insulin injections.

 (v) Epinephrine injections for insect bites or other allergies.

 (c) Medication administration includes the following activities, based on the needs of the individual:

 (1) Identify the correct individual.

 (2) Remove the medication from the original container.

 (3) Crush or split the medication as ordered by the prescriber.

 (4) Place the medication in a medication cup or other appropriate container, or into the individual's hand, mouth or other route as ordered by the prescriber.

 (5) If indicated by the prescriber's order, measure vital signs and administer medications according to the prescriber's order.

 (6) Injection of insulin or epinephrine in accordance with this chapter.

§ 2380.123. [Use of prescription medications.] Storage and disposal of medications.

 [(a) Prescription medications shall only be used by the individual for whom the medication was prescribed.

 (b) If a medication is prescribed to treat symptoms of a diagnosed psychiatric illness, there shall be a written protocol as part of the ISP to address the social, emotional and environmental needs of the individual related to the symptoms of the psychiatric illness.]

 (a) Prescription and nonprescription medications shall be kept in their original labeled containers.

 (b) A prescription medication may not be removed from its original labeled container more than 2 hours in advance of the scheduled administration.

 (c) If insulin or epinephrine is not packaged in an individual dose container, assistance with or the administration of the injection shall be provided immediately upon removal of the medication from its original labeled container.

 (d) Prescription medications and syringes, with the exception of epinephrine and epinephrine auto-injectors, shall be kept in an area or container that is locked.

 (e) Epinephrine and epinephrine auto-injectors shall be stored safely and kept easily accessible at all times. The epinephrine and epinephrine auto-injectors shall be easily accessible to the individual if the epinephrine is self-administered or to the staff person who is with the individual if a staff person will administer the epinephrine.

 (f) Prescription medications stored in a refrigerator shall be kept in an area or container that is locked.

 (g) Prescription medications shall be stored in an organized manner under proper conditions of sanitation, temperature, moisture and light and in accordance with the manufacturer's instructions.

 (h) Prescription medications that are discontinued or expired shall be destroyed in a safe manner according to the Department of Environmental Protection and applicable Federal and State regulations.

 (i) Subsections (a)—(d) and (f) do not apply for an individual who self-administers medication and stores the medication on his person or in the individual's private property, such as a purse or backpack.

§ 2380.124. [Medication log.] Labeling of medications.

 [(a) A medication log listing the medications prescribed, dosage, time and date that prescription medications, including insulin, were administered, and the name of the person who administered the prescription medication or insulin shall be kept for each individual who does not self-administer medication.

 (b) The information specified in subsection (a) shall be logged immediately after each individual's dose of medication.

 (c) A list of prescription medications, the prescribed dosage, special instructions and the name of the prescribing physician shall be kept for each individual who self-administers medication.]

 The original container for prescription medications must be labeled with a pharmacy label that includes the following:

 (1) The individual's name.

 (2) The name of the medication.

 (3) The date the prescription was issued.

 (4) The prescribed dosage and instructions for administration.

 (5) The name and title of the prescriber.

§ 2380.125. [Medication errors.] Prescription medications.

 [Documentation of medication errors and follow-up action taken shall be kept.]

 (a) A prescription medication shall be prescribed in writing by an authorized prescriber.

 (b) A prescription order shall be kept current.

 (c) A prescription medication shall be administered as prescribed.

 (d) A prescription medication shall be used only by the individual for whom the prescription was prescribed.

 (e) Changes in medication may only be made in writing by the prescriber or, in the case of an emergency, an alternate prescriber, except for circumstances in which oral orders may be accepted by a registered nurse in accordance with regulations of the Department of State. The individual's medication record shall be updated as soon as a written notice of the change is received.

§ 2380.126. [Adverse reaction.] Medication record.

 [If an individual has a suspected adverse reaction to a medication, the facility shall notify the prescribing physician and the family or residential program immediately. Documentation of adverse reactions shall be kept.]

 (a) A medication record shall be kept, including the following for each individual for whom a prescription medication is administered:

 (1) Individual's name.

 (2) Name and title of the prescriber.

 (3) Drug allergies.

 (4) Name of medication.

 (5) Strength of medication.

 (6) Dosage form.

 (7) Dose of medication.

 (8) Route of administration.

 (9) Frequency of administration.

 (10) Administration times.

 (11) Diagnosis or purpose for the medication, including pro re nata.

 (12) Date and time of medication administration.

 (13) Name and initials of the person administering the medication.

 (14) Duration of treatment, if applicable.

 (15) Special precautions, if applicable.

 (16) Side effects of the medication, if applicable.

 (b) The information in subsection (a)(12) and (13) shall be recorded in the medication record at the time the medication is administered.

 (c) If an individual refuses to take a prescribed medication, the refusal shall be documented on the medication record. The refusal shall be reported to the prescriber within 24 hours, unless otherwise instructed by the prescriber. Subsequent refusals to take a prescribed medication shall be reported as required by the prescriber.

 (d) The directions of the prescriber shall be followed.

§ 2380.127. [Administration of medications.] Medication errors.

 [(a) Prescription medications and injections of a substance not self-administered by individuals shall be administered by one of the following:

 (1) A licensed physician, licensed dentist, certified physician's assistant, registered nurse or licensed practical nurse.

 (2) A graduate of an approved nursing program functioning under the direct supervision of a professional nurse who is present in the facility.

 (3) A student nurse of an approved nursing program functioning under the direct supervision of a member of the nursing school faculty who is present in the facility.

 (4) A staff person who meets the criteria in § 2380.128 (relating to medication administration training), for the administration of oral, topical and eye and ear drop prescription medications and insulin injections.

 (b) Prescription medications and injections shall be administered according to the directions specified on the prescription.]

 (a) Medication errors include the following:

 (1) Failure to administer a medication.

 (2) Administration of the wrong medication.

 (3) Administration of the wrong amount of medication.

 (4) Failure to administer a medication at the prescribed time, which exceeds more than 1 hour before or after the prescribed time.

 (5) Administration to the wrong person.

 (6) Administration through the wrong route.

 (b) Documentation of medication errors, follow-up action taken and the prescriber's response shall be kept in the individual's record.

§ 2380.128. [Medication administration training.] Adverse reaction.

 [(a) A staff person who has completed and passed the Department's Medications Administration Course is permitted to administer oral, topical and eye and ear drop prescription medications.

 (b) A staff person who has completed and passed the Department's Medications Administration Course and who has completed and passed a diabetes patient education program within the past 12 months that meets the National Standards for Diabetes Patient Education Programs of the National Diabetes Advisory Board, 7550 Wisconsin Avenue, Bethesda, Maryland 20205, is permitted to administer insulin injections to an individual who is under the care of a licensed physician who is monitoring the diabetes.

 (c) Medications administration training of staff persons shall be conducted by an instructor who has completed and passed the Medications Administration Course for trainers and is certified by the Department to train staff persons.

 (d) A staff person who administers prescription medications or insulin injections to individuals shall complete the Medications Administration Course Practicum annually.

 (e) Documentation of the dates and locations of medications administration training for trainers and staff persons and the annual practicum for staff persons shall be kept.]

 (a) If an individual has a suspected adverse reaction to a medication, the facility shall immediately consult a health care practitioner or seek emergency medical treatment.

 (b) An adverse reaction to a medication, the health care practitioner's response to the adverse reaction and the action taken shall be documented.

§ 2380.129. [Self-administration of medications.] Medication administration training.

 [(a) To be considered capable of self-administration of medications, an individual shall:

 (1) Be able to recognize and distinguish the individual's own medication.

 (2) Know how much medication is to be taken.

 (3) Know when the medication is to be taken.

 (b) Insulin that is self-administered by an individual shall be measured by the individual or by licensed or certified medical personnel.]

 (a) A staff person who has successfully completed a Department-approved medications administration course, including the course renewal requirements, may administer the following:

 (1) Oral medications.

 (2) Topical medications.

 (3) Eye, nose and ear drop medications.

 (b) A staff person may administer insulin injections following successful completion of both:

 (1) The course specified in subsection (a).

 (2) A Department-approved diabetes patient education program within the past 12 months.

 (c) A staff person may administer an epinephrine injection by means of an auto-injection device in response to anaphylaxis or another serious allergic reaction following successful completion of both:

 (1) The course specified in subsection (a).

 (2) Training relating to the use of an auto-injection epinephrine injection device provided by a licensed, registered or certified health care professional within the past 12 months.

 (d) A record of the training shall be kept including the person trained, the date, source, name of trainer and documentation that the course was successfully completed.

[RESTRICTIVE PROCEDURES] POSITIVE INTERVENTION

§ 2380.151. [Definition of restrictive procedures.] Use of a positive intervention.

 [A restrictive procedure is a practice that does one or more of the following:

 (1) Limits an individual's movement, activity or function.

 (2) Interferes with an individual's ability to acquire positive reinforcement.

 (3) Results in the loss of objects or activities that an individual values.

 (4) Requires an individual to engage in a behavior that the individual would not engage in given freedom of choice.]

 (a) A positive intervention shall be used to prevent, modify and eliminate a dangerous behavior when the behavior is anticipated or occurring.

 (b) The least intrusive method shall be applied when addressing a dangerous behavior. For each incidence of a dangerous behavior, every attempt shall be made to modify and eliminate the behavior.

 (c) As used in this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

 Dangerous behavior—An action with a high likelihood of resulting in harm to the individual or others.

 Positive intervention—An action or activity intended to prevent, modify and eliminate a dangerous behavior. This includes improved communications, reinforcing appropriate behavior, an environmental change, recognizing and treating physical and behavioral health symptoms, voluntary physical exercise and other wellness practices, redirection, praise, modeling, conflict resolution and de-escalation.

§ 2380.152. [Written policy.] PSP.

 [A written policy that defines the prohibition or use of specific types of restrictive procedures, describes the circumstances in which restrictive procedures may be used, the persons who may authorize the use of restrictive procedures, a mechanism to monitor and control the use of restrictive procedures and a process for the individual and family to review the use of restrictive procedures shall be kept at the facility.]

 If the individual has a dangerous behavior as identified in the PSP, the PSP must include the following:

 (1) The specific dangerous behavior to be addressed.

 (2) A functional analysis of the dangerous behavior and the plan to address the reason for the behavior.

 (3) The outcome desired.

 (4) A description of the positive intervention aimed at preventing, modifying or eliminating the dangerous behavior and the circumstances under which the intervention is to be used.

 (5) A target date to achieve the outcome.

 (6) Health conditions that require special attention.

§ 2380.153. [Appropriate use of restrictive procedures.] Prohibition of restraints.

 [(a) A restrictive procedure may not be used as retribution, for the convenience of staff persons, as a substitute for a program or in a way that interferes with the individual's developmental program.

 (b) For each incident requiring a restrictive procedure:

 (1) Every attempt shall be made to anticipate and de-escalate the behavior using methods of intervention less intrusive than a restrictive procedure.

 (2) A restrictive procedure may not be used unless less restrictive techniques and resources appropriate to the behavior have been tried but have failed.]

 The following procedures are prohibited:

 (1) Seclusion, defined as involuntary confinement of an individual in a room or area from which the individual is physically prevented or verbally directed from leaving.

 (2) Aversive conditioning, defined as the application of startling, painful or noxious stimuli.

 (3) Pressure point techniques, defined as the application of pain for the purpose of achieving compliance.

 (4) A chemical restraint, defined as use of drugs or chemicals for the specific and exclusive purpose of controlling acute or episodic aggressive behavior. A chemical restraint does not include a drug ordered by a health care practitioner or dentist to treat the symptoms of a specific mental, emotional or behavioral condition, or as pretreatment prior to a medical or dental examination or treatment.

 (5) A mechanical restraint, defined as a device that restricts the movement or function of an individual or portion of an individual's body. Mechanical restraints include a geriatric chair, handcuffs, anklets, wristlets, camisole, helmet with fasteners, muffs and mitts with fasteners, restraint vest, waist strap, head strap, papoose board, restraining sheet, chest restraint and other locked restraints.

 (i) The term does not include a device prescribed by a health care practitioner that is used to provide post-surgical care, proper balance or support for the achievement of functional body position.

 (ii) The term does not include a device prescribed by a health care practitioner to protect the individual in the event of a seizure, as long as the individual can easily remove the device.

 (6) A manual restraint, defined as a hands-on physical method that restricts, immobilizes or reduces an individual's ability to move his arms, legs, head or other body parts freely, on a nonemergency basis, or for more than 15 minutes within a 2-hour period. A manual restraint does not include physically prompting, escorting or guiding an individual to provide a support as specified in the individual's PSP.

 (7) A prone position manual restraint.

 (8) A manual restraint that inhibits digestion or respiration, inflicts pain, causes embarrassment or humiliation, causes hyperextension of joints, applies pressure on the chest or joints, or allows for a free fall to the floor.

§ 2380.154. [Restrictive procedure review committee.] Permitted interventions.

 [(a) If a restrictive procedure is used, there shall be a restrictive procedure review committee.

 (b) The restrictive procedure review committee shall include a majority of persons who do not provide direct services to the individual.

 (c) The restrictive procedure review committee shall establish a time frame for review and revision of the restrictive procedure plan, not to exceed 6 months between reviews.

 (d) A written record of the meetings and activities of the restrictive procedure review committee shall be kept.]

 (a) Voluntary exclusion, defined as an individual voluntarily removing himself from his immediate environment and placing himself alone to a room or area, is permitted in accordance with the individual's PSP.

 (b) A physical protective restraint may be used only in accordance with § 2380.153(6)—(8) (relating to prohibition of restraints).

 (c) A physical protective restraint may not be used until §§ 2380.39(c)(5) and 2380.185(9) (relating to annual training; and content of the PSP) are met.

 (d) A physical protective restraint may only be used in the case of an emergency to prevent an individual from injuring the individual's self or others.

 (e) A physical protective restraint may not be used as a behavioral intervention, consequence, retribution, punishment, for the convenience of staff persons or as a substitution for individual support.

 (f) A physical protective restraint may not be used for more than 15 minutes within a 2-hour period.

 (g) A physical protective restraint may only be used by a staff person who is trained as specified in § 2380.39.

 (h) As used in this section, a ''physical protective restraint'' is a hands-on hold of an individual.

§ 2380.155. [Restrictive procedure plan.] Access to or the use of an individual's personal property.

 [(a) For each individual for whom restrictive procedures may be used, a restrictive procedure plan shall be written prior to the use of restrictive procedures.

 (b) The restrictive procedure plan shall be developed and revised with the participation of the program specialist, the individual's direct care staff, the interdisciplinary team, as appropriate, and other professionals, as appropriate.

 (c) The restrictive procedure plan shall be reviewed, and revised if necessary, according to the time frame established by the restrictive procedure review committee, not to exceed 6 months.

 (d) The restrictive procedure plan shall be reviewed, approved, signed and dated by the chairperson of the restrictive procedure review committee and the program specialist, prior to the use of a restrictive procedure, whenever the restrictive procedure plan is revised and at least every 6 months.

 (e) The restrictive procedure plan shall include:

 (1) The specific behavior to be addressed and the suspected antecedent or reason for the behavior.

 (2) The single behavioral outcome desired, stated in measurable terms.

 (3) Methods for modifying or eliminating the behavior, such as changes in the individual's physical and social environment, changes in the individual's routine, improving communications, teaching skills and reinforcing appropriate behavior.

 (4) Types of restrictive procedures that may be used and the circumstances under which the procedures may be used.

 (5) A target date for achieving the outcome.

 (6) The amount of time the restrictive procedure may be applied, not to exceed the maximum time periods specified in this chapter.

 (7) Physical problems that require special attention during the use of the restrictive procedure.

 (8) The name of the staff person or staff position responsible for monitoring and documenting progress with the plan.

 (f) The restrictive procedure plan shall be implemented as written.

 (g) Copies of the restrictive procedure plan shall be kept in the individual's record.]

 (a) Access to or the use of an individual's personal funds or property may not be used as a reward or punishment.

 (b) An individual's personal funds or property may not be used as payment for damages unless the individual consents to make restitution for the damages as follows:

 (1) A separate written consent by the individual is required for each incidence of restitution.

 (2) Consent shall be obtained in the presence of the individual, a person designated by the individual and in the presence of and with the support of the support coordinator or targeted support manager.

 (3) There may not be coercion in obtaining the consent of an individual.

 (4) The facility shall keep a copy of the individual's written consent.

§ 2380.156. [Staff training.] Rights team.

 [(a) If a restrictive procedure is used, at least one staff person shall be available when the restrictive procedure is used who has completed training within the past 12 months in the use of and ethics of using restrictive procedures including the use of alternate positive approaches.

 (b) A staff person responsible for developing, implementing or managing a restrictive procedure plan shall be trained in the use of the specific techniques or procedures that are used.

 (c) If manual restraint or exclusion is used, the staff person responsible for developing, implementing or managing a restrictive procedure plan shall have experienced the use of the specific techniques or procedures directly on themselves.

 (d) Documentation of the training program provided, including the staff persons trained, dates of the training, description of the training and the training source, shall be kept.]

 (a) The facility shall have a rights team. The facility may use a county mental health and intellectual disability program rights team that meets the requirements of this section.

 (b) The role of the rights team is to:

 (1) Review each incident, alleged incident and suspected incident of a violation of individual rights as specified in § 2380.21 (relating to individual rights).

 (2) Review each incidence of the use of a restraint to:

 (i) Analyze systemic concerns.

 (ii) Design positive supports as an alternative to the use of a restraint.

 (iii) Discover and resolve the reason for an individual's behavior.

 (c) Members of the rights team shall include the affected individual, persons designated by the individual, a family member or an advocate if the individual is unable to speak for himself, the individual's support coordinator, a representative from the funding agency if applicable and a facility representative.

 (d) Members of the rights team shall be comprised of a majority who do not provide direct support to the individual.

 (e) If a restraint was used, the individual's health care practitioner shall be consulted.

 (f) The rights team shall meet at least once every 3 months.

 (g) The rights team shall report its recommendations to the individual's PSP team.

 (h) The facility shall keep documentation of the rights team meetings and the decisions made at the meetings.

 (Editor's Note: As part of this proposed rulemaking, the Department is proposing to rescind §§ 2380.157—2380.165 which appear in 55 Pa. Code pages 2380-37—2380-40, serial pages (352107)—(352110).) 

§§ 2380.157—2380.165. (Reserved).

RECORDS

§ 2380.173. Content of records.

 Each individual's record must include the following information:

 (1) Personal information including:

 (i) The name, sex, admission date, birthdate and [social security] Social Security number.

 (ii) The race, height, weight, color of hair, color of eyes and identifying marks.

 (iii) The language or means of communication spoken or understood by the individual and the primary language used in the individual's natural home, if other than English.

 (iv) Religious affiliation.

 (v) A current, dated photograph.

 (2) [Unusual incident] Incident reports related to the individual.

 (3) Physical examinations.

 (4) Assessments as required under § 2380.181 (relating to assessment).

 [(5) A copy of the invitation to:

 (i) The initial ISP meeting.

 (ii) The annual update meeting.

 (iii) The ISP revision meeting.

 (6) A copy of the signature sheet for:

 (i) The initial ISP meeting.

 (ii) The annual update meeting.

 (iii) The ISP revision meeting.

 (7) A copy of the current ISP.

 (8) Documentation of ISP reviews and revisions under § 2380.186 (relating to ISP review and revision), including the following:

 (i) ISP review signature sheets.

 (ii) Recommendations to revise the ISP.

 (iii) ISP revisions.

 (iv) Notices that the plan team member may decline the ISP review documentation.

 (v) Requests from plan team members to not receive the ISP review documentation.

 (9) Content discrepancies in the ISP, the annual update or revision under § 2380.186.]

 (5) PSP documents as required by this chapter.

 [(10) Restrictive procedure protocols and] (6) Positive intervention records related to the individual.

 [(11)] (7) Copies of psychological evaluations, if applicable.

PROGRAM

§ 2380.181. Assessment.

*  *  *  *  *

 (b) If the program specialist is making a recommendation to revise a service or outcome in the [ISP as provided under § 2380.186(c)(4) (relating to ISP review and revision)] PSP, the individual shall have an assessment completed as required under this section.

*  *  *  *  *

 (f) The program specialist shall provide the assessment to the SC [or plan lead], as applicable, and [plan] PSP team members at least 30 calendar days prior to [an ISP meeting for the development, annual update and revision of the ISP under §§ 2380.182, 2390.152, 6400.182 and 6500.152 (relating to development, annual update and revision of the ISP)] a PSP meeting.

§ 2380.182. Development[, annual update and revision of the ISP] of the PSP.

 [(a) An individual shall have one ISP.

 (b) When an individual is not receiving services through an SCO and does not reside in a home licensed under Chapter 6400 or 6500 (relating to community homes for individuals with an intellectual disability; and family living homes), the adult training facility program specialist shall be the plan lead when one of the following applies:

 (1) The individual attends a facility licensed under this chapter.

 (2) The individual attends a facility licensed under this chapter and a facility licensed under Chapter 2390 (relating to vocational facilities).

 (c) The plan lead shall be responsible for developing and implementing the ISP, including annual updates and revisions.

 (d) The plan lead shall develop, update and revise the ISP according to the following:

 (1) The ISP shall be initially developed, updated annually and revised based upon the individual's current assessment as required under §§ 2380.181, 2390.151, 6400.181 and 6500.151 (relating to assessment).

 (2) The initial ISP shall be developed within 90 calendar days after the individual's admission date to the facility.

 (3) The ISP, annual updates and revisions shall be documented on the Department-designated form located in the Home and Community Services Information System (HCSIS) and also on the Department's web site.

 (4) An invitation shall be sent to plan team members at least 30 calendar days prior to an ISP meeting.

 (5) Copies of the ISP, including annual updates and revisions under § 2380.186 (relating to ISP review and revision), shall be provided as required under § 2380.187 (relating to copies).]

 (a) An individual shall have one approved and authorized PSP at a given time.

 (b) An individual's service implementation plan must be consistent with the PSP in subsection (a).

 (c) The support coordinator, targeted support manager or program specialist shall coordinate the development of the PSP, including revisions, in cooperation with the individual and the individual's PSP team.

 (d) The initial PSP shall be developed based on the individual assessment within 60 days of the individual's date of admission to the facility.

 (e) The PSP shall be initially developed, revised annually and revised when an individual's needs change based upon a current assessment.

 (f) The individual, and persons designated by the individual, shall be involved in and supported in the development and revisions of the PSP.

 (g) The PSP, including revisions, shall be documented on a form specified by the Department.

§ 2380.183. [Content of the ISP.] The PSP team.

 [The ISP, including annual updates and revisions under § 2380.186 (relating to ISP review and revision), must include the following:

 (1) Services provided to the individual and expected outcomes chosen by the individual and individual's plan team.

 (2) Services provided to the individual to increase community involvement, including work opportunities as required under § 2380.188 (relating to provider services).

 (3) Current status in relation to an outcome and method of evaluation used to determine progress toward that expected outcome.

 (4) A protocol and schedule outlining specified periods of time for the individual to be without direct supervision, if the individual's current assessment states the individual may be without direct supervision and if the individual's ISP includes an expected outcome which requires the achievement of a higher level of independence. The protocol must include the current level of independence and the method of evaluation used to determine progress toward the expected outcome to achieve the higher level of independence.

 (5) A protocol to address the social, emotional and environmental needs of the individual, if medication has been prescribed to treat symptoms of a diagnosed psychiatric illness.

 (6) A protocol to eliminate the use of restrictive procedures, if restrictive procedures are utilized, and to address the underlying causes of the behavior which led to the use of restrictive procedures including the following:

 (i) An assessment to determine the causes or antecedents of the behavior.

 (ii) A protocol for addressing the underlying causes or antecedents of the behavior.

 (iii) The method and timeline for eliminating the use of restrictive procedures.

 (iv) A protocol for intervention or redirection without utilizing restrictive procedures.

 (7) Assessment of the individual's potential to advance in the following:

 (i) Vocational programming.

 (ii) Community involvement.

 (iii) Competitive community-integrated employment.]

 (a) The PSP shall be developed by an interdisciplinary team including the following:

 (1) The individual.

 (2) Persons designated by the individual.

 (3) The individual's direct care staff persons.

 (4) The program specialist.

 (5) The program specialist for the individual's residential program, if applicable.

 (6) Other specialists such as health care, behavior management, speech, occupational and physical therapy as appropriate for the individual needs.

 (b) At least three members of the PSP team, in addition to the individual and persons designated by the individual, shall be present at a PSP meeting at which the PSP is developed or revised.

 (c) Members of the PSP team who attend the meeting shall sign and date the PSP.

§ 2380.184. [Plan team participation.] The PSP process.

 [(a) The plan team shall participate in the development of the ISP, including the annual updates and revisions under § 2380.186 (relating to ISP review and revision).

 (1) A plan team must include as its members the following:

 (i) The individual.

 (ii) A program specialist or family living specialist, as applicable, from each provider delivering a service to the individual.

 (iii) A direct service worker who works with the individual from each provider delivering a service to the individual.

 (iv) Any other person the individual chooses to invite.

 (2) If the following have a role in the individual's life, the plan team may also include as its members, as applicable, the following:

 (i) Medical, nursing, behavior management, speech, occupational or physical therapy specialists.

 (ii) Additional direct service workers who work with the individual from each provider delivering services to the individual.

 (iii) The individual's parent, guardian or advocate.

 (b) At least three plan team members, in addition to the individual, if the individual chooses to attend, shall be present for an ISP, annual update and ISP revision meeting.

 (c) A plan team member who attends a meeting under subsection (b) shall sign and date the signature sheet.]

 The PSP process shall:

 (1) Provide necessary information and support to ensure that the individual directs the PSP process to the maximum extent possible.

 (2) Enable the individual to make informed choices and decisions.

 (3) Be conducted to reflect what is important to the individual to ensure that supports are delivered in a manner reflecting individual preferences and ensuring the individual's health, safety and well-being.

 (4) Be timely in relation to the needs of the individual and occur at intervals, times and locations of choice and convenience to the individual and to persons designated by the individual.

 (5) Be communicated in clear and understandable language.

 (6) Reflect cultural considerations of the individual.

 (7) Include guidelines for solving disagreements among the PSP team members.

 (8) Include a method for the individual to request updates to the PSP.

§ 2380.185. [Implementation of the ISP.] Content of the PSP.

 [(a) The ISP shall be implemented by the ISP'S start date.

 (b) The ISP shall be implemented as written.]

 The PSP, including revisions, must include the following:

 (1) The individual's strengths and functional abilities.

 (2) The individual's individualized clinical and support needs.

 (3) The individual's goals and preferences related to relationships, community participation, employment, income and savings, health care, wellness and education.

 (4) Individually identified, person-centered desired outcomes.

 (5) Supports to assist the individual to achieve desired outcomes.

 (6) The type, amount, duration and frequency for the support specified in a manner that reflects the assessed needs and choices of the individual. The schedule of support delivery shall be determined by the PSP team.

 (7) Communication mode, abilities and needs.

 (8) Opportunities for new or continued community participation.

 (9) Risk factors, dangerous behaviors and risk mitigation strategies, if applicable.

 (10) Modification of individual rights as necessary to mitigate risks, if applicable.

 (11) Health care information, including a health care history.

 (12) Financial information including how the individual chooses to use personal funds.

 (13) The person responsible for monitoring the implementation of the PSP.

§ 2380.186. [ISP review and revision.] Implementation of the PSP.

 [(a) The program specialist shall complete an ISP review of the services and expected outcomes in the ISP specific to the facility licensed under this chapter with the individual every 3 months or more frequently if the individual's needs change which impact the services as specified in the current ISP.

 (b) The program specialist and individual shall sign and date the ISP review signature sheet upon review of the ISP.

 (c) The ISP review must include the following:

 (1) A review of the monthly documentation of an individual's participation and progress during the prior 3 months toward ISP outcomes supported by services provided by the facility licensed under this chapter.

 (2) A review of each section of the ISP specific to the facility licensed under this chapter.

 (3) The program specialist shall document a change in the individual's needs, if applicable.

 (4) The program specialist shall make a recommendation regarding the following, if applicable:

 (i) The deletion of an outcome or service to support the achievement of an outcome which is no longer appropriate or has been completed.

 (ii) The addition of an outcome or service to support the achievement of an outcome.

 (iii) The modification of an outcome or service to support the achievement of an outcome in which no progress has been made.

 (5) If making a recommendation to revise a service or outcome in the ISP, the program specialist shall complete a revised assessment as required under § 2380.181(b) (relating to assessment).

 (d) The program specialist shall provide the ISP review documentation, including recommendations, if applicable, to the SC or plan lead, as applicable, and plan team members within 30 calendar days after the ISP review meeting.

 (e) The program specialist shall notify the plan team members of the option to decline the ISP review documentation.

 (f) If a recommendation for a revision to a service or outcome in the ISP is made, the plan lead as applicable, under §§ 2380.182(b) and (c), 2390.152(b) and (c), 6400.182(b) and (c), 6500.152(b) and (c) (relating to development, annual update and revision of the ISP), shall send an invitation for an ISP revision meeting to the plan team members within 30 calendar days of receipt of the recommendation.

 (g) A revised service or outcome in the ISP shall be implemented by the start date in the ISP as written.]

 The facility shall implement the PSP, including revisions.

§ 2380.187. [Copies.] (Reserved).

 [A copy of the ISP, including the signature sheet, shall be provided to plan team members within 30 calendar days after the ISP annual update and ISP revision meetings.]

§ 2380.188. [Provider services.] (Reserved).

 [(a) The facility shall provide services including assistance, training and support for the acquisition, maintenance or improvement of functional skills, personal needs, communication and personal adjustment.

 (b) The facility shall provide opportunities and support to the individual for participation in community life, including work opportunities.

 (c) The facility shall provide services to the individual as specified in the individual's ISP.

 (d) The facility shall provide services that are age and functionally appropriate to the individual.]

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