W. Va. Code R. § 64-11-12

Current through Register Vol. XLI, No. 36, September 6, 2024

Section 64-11-12 - Services

12.1. Service and Program Descriptions.

12.1.1. The provider shall develop a written description of each service or program that is available to the public and potential consumers. The description shall be updated to reflect significant changes in the service or program, and shall include:

12.1.1.a. The goals of the service;

12.1.1.b. The expected outcomes of the service;

12.1.1.c. The nature of the services provided;

12.1.1.d. The usual staffing of the service including general description of credentialing;

12.1.1.e. Eligibility criteria for consumers served by the service;

12.1.1.f. Information on how to access the service; and

12.1.1.g. Restrictions in access to the service, if any.

12.2. Admission.

12.2.1. Admission to a behavioral health center must be based on the assessment conducted in compliance with section 12.3. of this rule.

12.2.2. The assessment must indicate the consumer's need for the service or program offered by the behavioral health center.

12.2.3. The provider shall have an intake process that assesses a consumer using the criteria for admission and only admit a consumer who meets the provider's criteria or is ordered to receive services by the court.

12.2.4. The services and program offered by the behavioral health center must be appropriate for the needs for the consumer.

12.2.5. If, after the consumer is admitted, the behavioral health center is unable to meet his or her needs, the provider shall discharge the consumer and is responsible for referral and placement assistance of the consumer to an alternative level of care or provider.

12.2.6. All consumers being discharged shall have a written discharge summary and reason for discharge entered in the consumer record within 30 days.

12.3. Assessments and Intake Procedures.

12.3.1. Each consumer entering or re-entering a behavioral health center shall have an assessment by an appropriately qualified staff person, as identified by the provider credentialing committee or officer, prior to or within 48 hours of admission.

12.3.2. Assessments from other providers may be acceptable at the provider's discretion, if comprehensive and performed within the past 45 days.

12.3.3. A consumer re-entering a behavioral health center within a 12-month period may receive an abbreviated assessment. These assessments and updates must be available in the consumer record.

12.3.4. The initial assessment shall review the consumer's psychiatric and psychosocial history, history of medical and psychiatric treatment, current mental status, current medical and psychiatric status with regard to health and medications prescribed, evaluation of suicidal or homicidal ideation, screening and assessment for trauma, presenting problems as identified objectively and subjectively, and summarize the consumer's needs and preferences. The initial assessment shall also include recommendations for further evaluation, when appropriate, to identify a consumer's physical, emotional, and behavioral needs; social strengths; and preferences prior to the finalization of the treatment plan or treatment strategy. Intake documentation shall include all relevant preliminary diagnostic, social, medical, and legal information.

12.3.5. An abbreviated assessment shall review the current mental status, presenting problems identified objectively and subjectively, current medical and psychiatric status with regard to health and medications prescribed, and a summary of consumer needs and preferences.

12.3.6. If needed, psychiatric or psychological assessments shall be conducted by an appropriate professional such as a physician, licensed psychologist, or clinician under supervision of a physician or a licensed psychologist.

12.3.7. The consumer's plan of services shall be based on the most recent assessment.

12.3.8. The consumer's assessment must record any medical conditions, allergies, or dietary restrictions. The plan for services must define the provider's responsibility in management of such conditions, if any, while the consumer is on the provider's site or under the provider's supervision. The notification must be posted in the record in a way that is accessible to all staff working with the consumer or there must be documentation that staff has been advised of such conditions.

12.4. Planning for Services.

12.4.1. The provider shall ensure each consumer has a plan of service in a format consistent with the type of service the consumer receives. The plan of service shall be reviewed at 90-day intervals unless other intervals are specified by provider policy and updated or modified as necessary but shall not exceed review dates more than 180 days.

12.4.2. The consumer shall be informed and have the right and the responsibility to participate in the development of the plan of services to the extent that the consumer is willing and medically and behaviorally able.

12.4.3. If the consumer has an advanced psychiatric directive, the provider shall honor the directions provided in the advanced directive.

12.4.4. A consumer, or his or her legal representative, shall sign a written consent prior to initiating treatment and recorded in the consumer record. If written consent is not obtained, the consumer record shall indicate why the written consent was not obtained.

12.5. Participation of the DLR in Planning for Services.

12.5.1. When a consumer has a DLR, the provider must obtain permission from the DLR prior to initiating treatment except in emergent conditions. If emergency treatment is rendered, the DLR must be notified as soon as possible.

12.5.2. If the consumer has a DLR whose scope of responsibility appropriately includes assisting in or directing planning for services for the consumer, the provider is responsible for documenting that the DLR has been informed of all meetings and activities regarding planning. The provider must document a good faith effort to involve the DLR in the planning and review processes. The DLR is entitled to participate in the manner he or she chooses, including by telephone.

12.5.3. If the provider has documented attempts to involve the DLR in the planning process without success, the provider may continue the current plan of service for up to 30 days past its expiration date while alternative plans are made to meet the needs of the consumer or to obtain DLR permission.

12.6. Initial Plan of Service.

12.6.1. When the consumer is admitted to a provider agency, he or she shall have a written, initial plan of projected services and needs and additional assessments recommended at the conclusion of the admission process, not to exceed seven days. The initial assessment shall be entered in the consumer's record within seven days of admission. At a minimum, this plan shall consist of the following if applicable:

12.6.1.a. Description of any further assessments or referrals that may need to be performed;

12.6.1.b. A listing of immediate interventions to be provided along with some basic objectives for the interventions;

12.6.1.c. A date for development of an expanded plan of services. The designated date must be appropriate for the planned length of service but at no time will that exceed 30 days from the date of the signing of the initial plan; and

12.6.1.d. The signature of the consumer, DLR, or both; the intake worker; and other persons participating in the development of the initial plan.

12.7. Treatment Plan or Treatment Strategy.

12.7.1. The treatment plan or treatment strategy is developed when a consumer is receiving a variety of services from a single provider provided that if all services are behavioral health services, no expanded plan is required.

12.7.2. The treatment plan or treatment strategy shall be in writing, consider a consumer's needs and preferences, relate directly to the consumer's initial or any subsequent assessments or information regarding the consumer, include all services provided to the consumer by the provider developing the plan or strategy, and consist of the following:

12.7.2.a. Date of development of the plan or strategy;

12.7.2.b. Participants in the development of the plan or strategy;

12.7.2.c. A description of the services to be provided, including known outside services, provided to a consumer and directed primarily toward achievement of the expected outcomes and with what frequency the services shall be provided;

12.7.2.d. A statement or statements of the goal or goals of services in general terms;

12.7.2.e. A listing of specific objectives relating to each goal unless the services are supportive in nature;

12.7.2.f. Specific goals shall improve and maintain the mental health and optimal adaptive functioning of the individual and be based on consumer assessments;

12.7.2.g. The measurable objectives to be used in tracking progress toward achievement of an objective, unless the services to be provided are supportive services; have an expected achievement date; and when appropriate, outcomes for discharge;

12.7.2.h. The techniques, services, or both to be used in achieving the objective unless the services are supportive;

12.7.2.i. Identification of the individuals responsible for implementing the services relating to the statement or statements of objectives; and

12.7.2.j. A date for review of the plan or strategy.

12.7.3. Treatment plans for a consumer with complex needs or for one who has experienced a significant change in functional abilities shall be developed and reviewed by an interdisciplinary team.

12.7.4. The plan or strategy shall be reviewed at least every 90 days unless an alternative timeframe is specified in the plan or strategy with rationale explaining the alternate timeframe but shall not exceed 180 days.

12.7.5. Selected objectives may be reviewed earlier than the scheduled plan review as desired by the consumer or provider.

12.7.6. Plans for supportive services are incorporated into the plan of care or treatment strategy and shall include:

12.7.6.a. Services to be provided;

12.7.6.b. How often;

12.7.6.c. By whom; and

12.7.6.d. The objectives of the support.

12.7.7. Objectives of supportive services may be stated in simple terms and outcomes shall be stated in measurable terms. Maintenance of health, daily living skills, or functionality may be an objective for a supportive service.

12.7.8. Diagnoses shall be:

12.7.8.a. Written in standard language as provided in the American Psychiatric Association's latest edition of the Diagnostic and Statistical Manual of Mental Disorders, the latest edition of the International Classification of Diseases, or the latest edition of the Classification for Mental Retardation of the American Association on Intellectual and Developmental Disabilities (AAIDD); and

12.7.8.b. Based upon accepted professional standards of examinations and factual description of a consumer's symptoms and problems.

12.7.9. When additional evaluations and assessments are completed, recommendations for treatment and training shall be entered in a consumer's record.

12.7.10. The provider shall ensure that:

12.7.10.a. A consumer is involved in treatment planning and service delivery to the extent possible;

12.7.10.b. If a consumer attends a school or day program and a release of information is signed by the consumer or his or her DLR, staff may participate with the appropriate educational or day program personnel in the development of the education component of the treatment plan;

12.7.10.c. The treatment plan provides for the review of drug dosages and types, and explains the rationale for changes or continuation of psychotropic drug regimens; and

12.7.10.d. Signed and dated progress notes or other documentation regarding services provided and outcomes are included in the consumer record.

12.8. Coordination of Service.

12.8.1. If a consumer is receiving a combination of behavioral health or support services from a team of provider agencies, the consumer shall have a comprehensive plan of services. Clear, written procedures outlining each provider's responsibility or responsibilities will be established and made available to staff and be made part of the consumer's record.

12.8.2. All providers participating in the provision of service to the consumer shall be represented in the development of the comprehensive plan, as shall the consumer or DLR as appropriate. Representation shall be documented by signature of the parties involved in the development of the comprehensive plan.

12.8.3. The team must be made aware of any advanced directives made by the consumer or any instruction for care imposed by the DLR. These directives must be included as an addendum to the plan.

12.8.4. Comprehensive plans may be completed by a case management provider who is responsible for tracking the implementation of the plan and organizing the reviews of the plan and subsequent modifications. The case management provider must be identified in the plan.

12.8.5. The comprehensive plan must clarify which provider agency is responsible for each aspect of the plan. Objectives for behavioral health treatment services must be specific and measurable.

12.8.6. It is the responsibility of the case management provider to ensure that each member of the provider team including the consumer or DLR, or both, has a copy of the plan within seven working days of its completion.

12.8.7. The comprehensive planning process shall culminate in an agreed date for review of progress in reaching the objectives described in the plan.

12.9. Reviews of Treatment Plans or Treatment Strategies.

12.9.1. The review shall be documented and shall consist of examination by the team or provider of progress toward achievement of an objective using the measurements described in the plan or in the case of supportive services, an evaluation of achievement of maintenance objectives.

12.9.2. The consumer and DLR shall be present at the scheduled review. If the consumer, DLR, or both are not present, the reason for holding the review in their absence shall be documented and for good cause.

12.9.3. The review shall summarize the amount of treatment or training provided, document progress toward the objectives, indicate problems that impeded progress, and provide a decision to continue the same plan or to modify it. The provider shall modify objectives and goals if the planned interventions have not produced evidence of improvement or maintenance, if such is the stated goal, within an amount of time to be identified in advance by the clinical team.

12.9.4. The goals or objectives of a plan may be modified if desired by the consumer or DLR.

12.9.5. At the conclusion of the review, a date shall be set for the next review. Service and treatment plans shall be reviewed at least every 90 days by the team or provider unless otherwise specific in the plan but shall not exceed 180 days. Revisions to the behavioral health service plan shall be made if necessary or a new plan may be developed.

12.9.6. Written consent by a consumer, or his or her legal representatives, shall be obtained and recorded in the consumer record. If written consent is not obtained, the consumer record shall indicate why the written consent was not obtained.

12.10. Critical Treatment Junctures.

12.10.1. The provider and consumer shall meet to review and if necessary, modify the consumer's treatment or supports services at a critical treatment juncture.

12.10.2. Critical treatment junctures occur when:

12.10.2.a. There is a proposed change in placement including admission, transfer, or discharge;

12.10.2.b. There is ongoing non-compliance with treatment;

12.10.2.c. Significant new symptoms are experienced or major changes in a consumer's condition;

12.10.2.d. There is a significant change in the consumer's environment, functional ability, health status;

12.10.2.e. Funding for the consumer's service is significantly reduced or eliminated;

12.10.2.f. The consumer loses eligibility for the service;

12.10.2.g. There is an increase or decrease in service intensity or frequency;

12.10.2.h. An event occurs that will have a deleterious or other effect on services provided to the consumer or his or her response to services; or

12.10.2.i. The consumer or DLR requests an alteration in the services he or she is receiving.

12.10.3. When a critical treatment juncture occurs:

12.10.3.a. The provider shall identify and document the situation or event and assess the immediate consumer needs;

12.10.3.b. The provider, in conjunction with the consumer, DLR, or both, shall make a determination as to a course of action and shall document the course of action adopted;

12.10.3.c. The provider shall document reasons for delay or lack of need for a full meeting of the team but shall implement the agreed modification of services at the earliest opportunity;

12.10.3.d. If there is disagreement between the provider and consumer as to a course of action, the team will meet at the earliest mutually agreeable time; and

12.10.3.e. When necessary and appropriate, a team meeting will be held including the consumer, DLR, or both. The team will:

12.10.3.e.1. Assess the situation;

12.10.3.e.2. Identify any needed alteration to the treatment or services provided;

12.10.3.e.3. Obtain approval from the consumer, DLR, or both for the modification of services; and

12.10.3.e.4. Set a date for the next review of the plan.

12.10.3.f. The team may decide to review all of the plan of services, or only a segment of the plan of services. Regardless of the extent of the review, it must be documented, and a date identified for the subsequent review of the plan in its entirety, not to exceed 90 days from the last review of the entirety of the plan unless other timeframe reviews are described in the plan, but not to exceed 180 days.

12.10.3.g. The consumer, the DLR, or both shall be provided with a copy of the plan for services and any review documents.

12.10.3.h. If a critical treatment juncture occurs for a consumer who has a comprehensive plan for services, the members of the team must be informed of the situation and participate in a decision regarding the need for the team to meet. Participation in this decision may be by telephone or other electronic or digital method.

12.11. Discharge Planning.

12.11.1. Each provider shall have a policy and procedure regarding discharge of the consumer from services.

12.11.2. Such policies shall promote an organized transition to another provider, level, or type of care or to full independence from treatment or support. Discharge planning shall follow the treatment plan. A consumer may not be discharged without appropriate appointments and services in place. If a consumer is discharged without appropriate appointments and services in place, justification and efforts made by the behavioral health center must be documented in the consumer record.

12.11.3. Consumers who are being treated at a behavioral health center pursuant to a court order, civil or criminal, may not choose to be discharged from the behavioral health center against medical advice.

12.11.4. In the event that the consumer, or the consumer's legal representative on behalf of the consumer who lacks the capacity to make health care decisions, chooses to discharge from the behavioral health facility against medical advice, the behavioral health center shall:

12.11.4.a. Immediately inform the consumer's health care providers;

12.11.4.b. Educate the consumer, and the consumer's legal representative, if appropriate, regarding the possible consequences for discharging against medical advice;

12.11.4.c. Provide information about and referral to appropriate community resources, if requested by the consumer or consumer's legal representative;

12.11.4.d. Document the consumer's reason for discharging against medical advice, if known; and

12.11.4.e. Document all actions taken and the responses by the consumer, legal representative, or both, in the consumer's medical record.

12.11.5. With permission from the consumer, DLR, or both, the provider is responsible for ensuring that sufficient information is provided to an alternative provider to enable a smooth transition of care.

12.11.6. The provider is responsible for offering transitional services. If the consumer is an incapacitated adult, the transitional services shall be individualized and delivered in a manner that facilitates the individual's movement from one health care setting to another.

12.11.7. A written discharge summary shall be entered in the consumer record within 15 days of discharge including, at a minimum, the following:

12.11.7.a. The reason or reasons for discharge;

12.11.7.b. The consumer's status and condition at the time of discharge;

12.11.7.c. A final evaluation summary of the consumer's progress toward the goals set in the treatment plan;

12.11.7.d. A plan developed in conjunction with the consumer, when available, for care after discharge and follow-up; and

12.11.7.e. The signature of the staff completing the discharge.

12.12. Medication Services.

12.12.1. The provider shall develop and implement a process for the administration, storage, and accountability of all medication including, but not limited to, provisions for a medication administration record procedure and in compliance with all applicable state and federal laws, rules, and regulations, including the provisions of this rule.

12.12.2. The provider shall obtain and record daily temperatures of all refrigerators that are used to store consumer medications.

12.12.3. The process for prescribing and administering medications shall ensure:

12.12.3.a. That all orders for medications are reviewed at least every 90 days by the physician;

12.12.3.b. That psychotropic drugs are ordered as part of the treatment plan and with documentation of the diagnosis and specific behaviors that indicate a need for the medication and the rationale for its choice;

12.12.3.c. That all medications are administered in compliance with the physician's or physician extender's order and state law allowing a one-hour window before and a one-hour window after the physician ordered administration time; and

12.12.3.d. The medication errors, as defined in this rule, and adverse drug reactions are reported immediately in accordance with written procedures including properly recording it in a consumer's record and notifying the physician who prescribed the drug.

12.13. Special Services and Populations.

12.13.1. If a provider provides specialized services to a unique population the provider shall ensure that:

12.13.1.a. The service and clinical model reflects knowledge and use of evidence-based and theory-guided practices;

12.13.1.b. Clinical and professional staff are appropriately trained, certified, or licensed in the area of service provided;

12.13.1.c. Direct care staff are trained to understand issues in clinical treatment of the population and are able to use suitable intervention techniques when necessary and appropriate;

12.13.1.d. The environment and milieu of the treatment location is clinically, structurally, and developmentally appropriate for the population served; and

12.13.1.e. The facility is suitably secure and staff ratios are consistent with the consumer's treatment plan. In cases in which a staff ratio is not specified in the consumer's plan of care, the provider shall assure that sufficient staff is present to enable consumer safety in case of emergency.

12.13.2. Consumer Groupings. Within a behavioral health center, consumer groupings shall occur that:

12.13.2.a. Serve the needs of all consumers including those experiencing a crisis who need an environment that is orderly, peaceful, and respectful for a consumer's privacy; and

12.13.2.b. Provide staff to consumer ratios, as determined in the assessment and treatment plan or treatment strategy, to ensure adequate protection and supervision.

12.13.3. Group Homes and Residential Treatment Facilities.

12.13.3.a. The provider shall have rules for conduct of consumers to follow while in the residence.

12.13.3.b. The consumers shall be offered and encouraged to consume foods that promote healthful living appropriate to the individual consumer's treatment plan and assessed needs.

12.13.3.c. Onsite staff shall ensure that each consumer receives training and practices good habits in personal care, hygiene, and grooming.

12.13.3.d. Consumers who require 24-hour staffing shall not be left unattended, including during normal sleeping hours.

12.13.3.e. Consumers shall be referred for ongoing mental health services and assisted in keeping appointments and participating in treatment programs. Documentation of referrals shall be kept in the consumer's record.

12.14. Abuse, Neglect, and Critical Incidents.

12.14.1. The provider shall report, investigate, monitor, and remediate consumer-related incidents in a manner consistent with minimum current guidelines, "Reporting and Investigation Guidelines for Incidents involving a Licensed Behavioral Health Services and Supports Provider," set forth by the Inspector General and made available by the Inspector General to providers and the public.

12.14.1.a. These guidelines shall be amended as necessary through a participative process including consultation with providers, consumers, and other stakeholders.

12.14.1.b. The provider's policy regarding abuse and neglect may allow the provider a range of remediation alternatives with the employee depending upon the severity of the incident and the possibility of successful remediation.

12.14.1.c. These guidelines represent a minimum standard of investigation and correction. Third party payers or providers may voluntarily require a more stringent level of correction.

12.14.2. Incidents shall be evaluated by the provider's designated representative and classified as one of the following:

12.14.2.a. An allegation of abuse, neglect, or both;

12.14.2.b. A critical incident; or

12.14.2.c. An incident requiring provider monitoring and correction.

12.15. Abuse and Neglect.

12.15.1. A provider shall immediately report to OHFLAC the neglect, abuse, or suspected neglect or abuse of any consumer who receives services from a provider licensed under the conditions of this rule. This requirement mandates self-reporting of neglect, abuse, or suspected neglect or abuse by the service provider.

12.15.2. The initial report shall be made to the Centralized Intake for Abuse and Neglect within 24 hours by telephone followed by a written report to the Office of Health Facility Licensure and Certification within 48 hours.

12.15.3. All employees, contractors, and volunteers of a provider are considered to be mandatory reporters as defined in W. Va. Code §9-6-11.

12.15.4. A consumer has the right to report any suspicion of abuse or neglect to civil and criminal authorities in accordance with the Adult Protective Services Act, in addition to using the grievance procedure of the provider.

12.16. Critical Incident.

12.16.1. Personnel shall immediately notify a supervisor of any critical incident and clear other consumers from the area.

12.16.2. Unless a consumer is in immediate danger to himself, herself, or others, staff shall implement the least restrictive methods of crisis management. If less restrictive methods are not effective, staff may use progressively more restrictive methods of crisis management until the crisis is resolved or other alternatives are established.

12.16.3. The provider must keep a central file of critical incidents for review by the Inspector General upon request.

12.16.4. The file shall contain a description of the incident, actions taken by the provider to mitigate the incident, and, at minimum, a description of systemic corrective action taken by the provider, if any, as a result of the provider investigation utilizing unique, but confidential, consumer identifiers.

12.16.5. The provider shall maintain a system for critical incident reporting and use information from the system to make necessary or appropriate improvements to treatment planning and services.

12.16.6. In the case of a critical incident involving an incapacitated adult, the provider shall follow Department policy regarding reporting such events to the Inspector General.

12.17. Non-critical incidents. -- Non-critical incidents must be documented, reviewed by a supervisory staff person, investigated if necessary, and filed in the central incident file.

12.18. Quality Assurance.

12.18.1. The provider shall ensure that the central file of reports of abuse, neglect, and critical and non-critical incidents is reviewed, collated by the Continuous Quality Improvement committee or staff person, and reported to the governing body on an annual basis. The file shall be representative of efforts by the provider to utilize information to improve provider policy, procedure, performance, or a combination of the foregoing.

12.18.2. The provider shall develop and implement a systems review of the appropriateness and effectiveness of consumer services which includes, at a minimum, an analysis of the results of treatment plan reviews and, when appropriate, of recommendations and reports made by the human rights committee.

12.19. Injuries of Unknown Source.

12.19.1. An injury shall be considered an "injury of unknown source" when:

12.19.1.a. The source of the injury was not witnessed by any person and the source of the injury could not be explained by the consumer; and

12.19.1.b. The injury raises suspicions of possible abuse or neglect because of the extent of the injury or the location of the injury, e.g., the injury is located in an area not generally vulnerable to trauma; or the number of injuries observed at one particular point in time or the incidence of injuries over time.

12.19.2. Minor occurrences which are not of serious consequence to the individual and do not present as a suspicious or repetitive injury as discussed in subdivision 12.19.1.b. of this rule shall be recorded by the facility staff once they are aware of them and follow-up shall be conducted as indicated by provider policy.

12.19.3. If, however, the injury meets both criteria listed in subsection 12.19.1., the injury or injuries must be reported and investigated as required by this rule.

12.19.4. For injuries that do not rise to the level of reportable "injuries of unknown source," the provider shall follow its policies and procedures for monitoring and trending such occurrences.

12.20. Management of Continued Inappropriate Behavior.

12.20.1. The provider shall have a policy for management of regularly occurring inappropriate behavior on the part of incapacitated or minor consumers.

12.20.2. When a responsible clinician or the service planning team becomes aware that an incapacitated or minor consumer in a residential service program is consistently displaying an inappropriate behavior, a functional assessment of the behavior shall be performed.

12.20.3. The functional assessment may result in informed environmental alterations in the development of a written plan for intervention.

12.20.4. Only trained staff may be responsible for performing functional assessments of behavior and developing and monitoring plans for intervention.

12.20.5. Implementing staff shall be oriented to and fully trained on all behavior management plans for consumers with whom they are working including, but not limited to, methods of de-escalating volatile situations, using non-physical techniques in such situations, and how to deal appropriately with aggressive or out of control behavior. Training shall include demonstration of the procedures to be utilized.

12.20.6. Behavioral intervention plans shall:

12.20.6.a. Be planned and approved by the service planning team;

12.20.6.b. Be individualized, consumer-centered, and applied consistently in all environments managed by the service team;

12.20.6.c. Be based on a functional assessment of the inappropriate behavior;

12.20.6.d. Utilize positive behavior techniques that focus on replacing inappropriate behaviors with more productive pro-social behaviors;

12.20.6.e. Be based on fundamental principles of behavior;

12.20.6.f. Be data-based and monitored on an ongoing basis;

12.20.6.g. Be amended in a timely fashion if necessary;

12.20.6.h. Include positive programming to teach a consumer adaptive, more effective behavior;

12.20.6.i. Ensure that a consumer does not discipline another consumer; and

12.20.6.j. Shall specify the rationale, behavioral objectives, and methods to be used in treatment, and the data to be collected to assess progress toward objectives.

12.20.7. The following aversive consequences are not to be utilized by providers:

12.20.7.a. The application of painful stimuli to the body in an attempt to terminate behavior or as a penalty for behavior but not including aversive procedures or stimuli, including, but not limited to, corporal punishment or use of electric shock devices;

12.20.7.b. Deprivation of basic human rights;

12.20.7.c. Treatment of a demeaning nature;

12.20.7.d. Noxious or painful stimuli;

12.20.7.e. Deprivation of nutrition or hydration, excluding dietary or fluid restrictions ordered by a physician or physician extender;

12.20.7.f. Behavioral interventions that inflict physical or psychological pain; and

12.20.7.g. Conditions that promote maladaptive behavior.

12.20.8. Restraint techniques shall only be incorporated into a behavioral intervention if it is used as an intervention of last resort and only when the targeted behavior is immediately dangerous to the consumer or others in the environment. Detailed reasons for the use of restraint shall be documented, along with attempts at the use of the least restrictive intervention that will be effective to protect the consumer, a staff member, or others from harm.

12.20.9. When behavioral intervention or emergency control measures are used, a detailed report shall be written and include, but not limited to, describing the incident and the rationale for the use of the behavioral intervention or emergency control measures.

12.20.10. Behavioral intervention shall be monitored and altered if side effects such as illness or severe physical or emotional stress or damage occur or are likely to occur.

12.21. Emergency Management of Potentially Dangerous Behavior.

12.21.1. The provider shall have in place policies and procedures regarding emergency management of potentially dangerous consumer behavior.

12.21.2. Seclusion is not an intervention permitted in any licensed community-based program.

12.21.3. Staff shall be trained and able to demonstrate competency in systematic de-escalation procedures as part of orientation. Training for direct care staff shall be renewed at intervals determined by provider policy but occur no less than yearly.

12.21.4. The provider must require staff to have education, training, and demonstrated knowledge in regard to the safe application and use of all types of restraints used, including, but not limited to, training in how to recognize and respond to signs of physical and psychological distress.

12.21.5. Staff must have education, training, and demonstrated knowledge based upon the specific needs of consumers being served. Training will consist at a minimum of the following:

12.21.5.a. Techniques to identify staff and consumer behaviors, events, and environmental factors that may trigger potentially dangerous behavior;

12.21.5.b. Use of nonphysical intervention skills;

12.21.5.c. Selection of least restrictive and least intrusive intervention based on individualized assessment; and

12.21.5.d. Safe application and monitoring of restraint as a last resort if provider policy allows restraint as an intervention.

12.21.6. Prior to or without a physician's order, a consumer shall not be placed in a restraint until he or she is either:

12.21.6.a. Examined by an attending physician or other licensed healthcare professional and a discussion is held between a member of the professional staff and available interdisciplinary team members; or

12.21.6.b. A physician or other licensed healthcare professional has ordered by telephone these emergency interventions after a member of the professional healthcare staff has discussed the situation with the available interdisciplinary team members. In the event, an emergency intervention is required, refer also to subsection 12.21.11. of this rule.

12.21.7. Physical, mechanical, or chemical restraints may be used only as a last resort for the management of dangerous, violent, or self-destructive behavior that is an immediate threat to the consumer's physical safety or the safety of others in the immediate environment.

12.21.7.a. The use of restraints must be in accordance with a written modification to the consumer's treatment plan.

12.21.7.b. The use of restraint must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the consumer and authorized to order restraint by provide policy in accordance with state law. Orders for use of restraint must never be written as a standing order or on an as-needed basis.

12.21.7.c. A restraint does not include devices used to treat a medical condition.

12.21.7.d. All supportive or protective devices shall be assessed by the team for safety and appropriateness at annual intervals or more frequently as determined by provider policy.

12.21.7.e. Restraint may only be used when less intrusive interventions have been exercised and determined, through documentation pursuant to this rule, to be ineffective to protect the consumer or others from harm. No restraint may be utilized for more than a half hour without review of the consumer's condition by a licensed clinician to evaluate the consumer's immediate situation, the consumer's reaction to the intervention, and the consumer's medical and behavioral condition. No restraint order shall be valid for more than three hours. If ordered for longer, the interdisciplinary team shall review a consumer's status and develop a written plan for responding to a consumer's needs.

12.21.7.f. Before writing an order for the use of restraint for the management of violent or self-destructive behavior, a physician, physician extender, or other licensed independent practitioner who is responsible for the care of the consumer and authorized to order restraint by provider policy in accordance with state law must see and assess the consumer.

12.21.7.g. The use of restraint must be implemented in accordance with safe and appropriate techniques.

12.21.7.h. The restraint must be discontinued at the earliest possible time.

12.21.8. Documentation in the consumer's record must include the following:

12.21.8.a. A description of the consumer's behavior and the danger it posed to self or others;

12.21.8.b. A description of the alternatives or other less intrusive interventions that were attempted prior to the restraint;

12.21.8.c. A description of the intervention used, including the duration of the restraint if physical or mechanical or dosage if chemical; and

12.21.8.d. The consumer's response to all the intervention or interventions used.

12.21.9. Provider policy regarding restraints must include a requirement of a debriefing of any restraint used.

12.21.10. If a consumer receiving extended services exhibits a behavior which is immediately dangerous to himself or herself or others at a rate of three or more times in a six-month period, the provider shall convene the clinical team to consider development of a written plan for behavioral intervention.

12.21.11. When a psychiatric emergency exists and less restrictive measures are not effective, the provider may utilize intrusive measures to the least restrictive extent necessary to protect the consumers or others in the immediate environment until the crisis is immediately resolved or the consumer can be transported to a higher level of care.

12.22. Medical and Dental Procedures for Incapacitated Adults and Children with Developmental Disabilities.

12.22.1. Whenever indicated or warranted, a desensitization procedure shall be developed in advance to prepare incapacitated adults and children with developmental disabilities for a medical or dental procedure.

12.22.2. If the desensitization procedure is not successful in easing the consumer's agitation, anxiety or fear, medicinal interventions are to be used in preference to mechanical restraints unless otherwise agreed by the clinical team.

12.22.3. All efforts to prepare and manage a consumer during a medical or dental procedure shall be documented in the consumer's medical record.

12.23. Standards for Respite and Personal Attendant Services.

Staff providing respite and personal attendant services must receive the following training or orientation prior to assuming care of a consumer:

12.23.1. Specific information pertaining to the needs, preferences, and medical issues of the consumer for whom the staff is assuming care;

12.23.2. List of tasks for which the personal attendant or respite provider is responsible, including any unusual circumstances that could reasonably be predicted in advance;

12.23.3. List of emergency contacts including emergency contact numbers for primary caregiver and for staff supervisor;

12.23.4. Training in any specific protocols contained within the consumer's plan for services as appropriate;

12.23.5. Review of mandatory reporting obligations;

12.23.6. Any emergency procedures unique to the consumer and his or her medical or behavioral needs;

12.23.7. Orientation to the consumer's home or other service location; and

12.23.8. Boundary definition regarding the relationship of staff to primary caregiver and other family members, chain of supervisory responsibility, appropriate use of consumer resources such as food or equipment, and other issues as necessary and appropriate.

12.24. Supervision of the respite or personal attendant employee shall be the responsibility of the employing agency with regular input and consultation by the primary caregiver, consumer, or both. The agency shall provide onsite supervision of staff on a regular schedule as described by agency policy with the permission of the consumer, primary caregiver, or both. Supervision activities shall be documented by the agency.

12.25. If the respite or personal attendant service is provided at a location away from the consumer's primary residence, the location must be safe and free from immediate threat of harm to the consumer. The location must consider the needs and preferences of the consumer and his or her primary caregiver.

12.26. The respite or personal attendant provider is responsible for complying with applicable services or conditions outlined in the consumer's plan for services during the time in which the staff person is providing services for the consumer.

12.27. Documentation must include:

12.27.1. Any unusual incidents or events occurring during the period;

12.27.2. A summary of the activities of the consumer during the period;

12.27.3. Any health or behavioral issues which were of significance during the period; and

12.27.4. Any medications including dosages that were taken by the consumer during the period.

12.28. Standards for Residential Services.

12.28.1. The provider is responsible for ensuring that staff receives an orientation to the plan for services for all consumers in the home, to include:

12.28.1.a. Dietary issues as necessary and appropriate;

12.28.1.b. Unique health considerations;

12.28.1.c. Crisis plans or advance psychiatric directives, if any;

12.28.1.d. Training in any specific protocols contained within the consumer's plan for services as appropriate;

12.28.1.e. Common behavioral issues and management; and

12.28.1.f. A description of unique consumer preferences for those unable to express them directly.

12.28.2. In addition, staff shall be provided with:

12.28.2.a. A list of tasks for which the staff member is responsible;

12.28.2.b. A list of emergency contacts including emergency contact number for staff supervisor;

12.28.2.c. A review of mandatory reporting obligations;

12.28.2.d. An orientation to the consumer's home or other service location;

12.28.2.e. A review of boundary definition regarding staff use of consumer resources such as food or equipment; and

12.28.2.f. Immediate, in-home access to relevant information in a consumer's medical record in order to provide safe and appropriate care to consumers.

12.28.3. The provider must ensure that in-home staff has access to 24-hour emergency telephone contacts for supervisory staff and for parents or guardians.

12.28.4. The provider shall ensure that in-home staff has knowledge of mandatory reporting procedures and the reporting number must be easily available in the home.

12.28.5. Staff must be trained in emergency evacuation procedures.

12.28.6. The provider shall ensure availability in the home of commonly needed company policies and procedures for staff reference. The provider shall have a policy which identifies those sections of the provider staff manual that will be available in the homes.

12.28.7. The provider is responsible for training staff to be supportive of the consumer's:

12.28.7.a. Needs and preferences;

12.28.7.b. Behavioral and health management issues; and

12.28.7.c. Privacy.

12.28.8. The provider shall have a process in place to address consideration of appropriate blending of consumer populations regarding gender, developmental age, activity level, and consumer preferences in congregate living situations.

12.28.9. The service environment shall be appropriate to the physical and health needs of consumers and shall be safe from threat of immediate harm for consumers and staff.

12.28.10. The provider is responsible for monitoring and facilitating the consumer's health, including, but not limited to, providing staff coverage, as described in the individual consumer's assessment and treatment plan or treatment strategy, to manage all consumers at the residential facility.

12.28.11. The provider is responsible for linkage and referral to address the consumer's acute medical and psychiatric health concerns.

12.28.12. A referral must be made for basic primary care at least once per year.

12.28.13. Health considerations shall be incorporated into a residential consumer's plan of services and providers shall be responsible for advocating that unmet needs be addressed. The case management agency shall be responsible for advocacy if the consumer has a case manager.

12.28.14. The provider shall assist the consumers in the service environment to develop a homelike atmosphere that addresses the preferences of the individuals residing in the environment, taking into consideration the financial resources of the residents.

12.28.15. The provider shall have a process in place for facilitating choices of activity and home management that respects the needs and preferences of the residents. The provider shall promote consumer choices and control within the household to the degree possible and clinically appropriate.

12.28.16. The provider shall develop and implement policies and procedures for the transfer to an appropriate acute care facility for a consumer who poses an imminent physical danger to himself, herself, or others.

12.28.17. The provider shall develop and maintain a process for communication from one shift of staff to the next that conveys information necessary to conduct business in the home. Additionally, the provider shall supply a method of communicating information regarding consumers from one shift to the next in a confidential manner. Such communication shall include:

12.28.17.a. Any unusual incidents or events occurring during the shift;

12.28.17.b. Any health or behavioral issues which were of significance during the shift; and

12.28.17.c. Any medications that were taken by the consumer(s) during the shift.

12.28.18. If the home is owned or leased by a provider, it must have:

12.28.18.a. Adequate bedroom and living space for the number of consumers living within the home;

12.28.18.b. Private space for storing personal items for each consumer;

12.28.18.c. Adequate heating and cooling;

12.28.18.d. External windows in consumer bedrooms;

12.28.18.e. Adequate number of bathrooms and bathing facilities for the number of consumers residing within the home;

12.28.18.f. Hinged doors in bedroom doorways; and

12.28.18.g. Appropriate access for physically disabled or challenged consumers.

12.28.19. If the home is owned or leased by the consumer or DLR, the provider will respect the consumer's choice of living environment and resources while advocating for adequate housing and living conditions: Provided, That nothing obligates the provider to supply services in an unsafe environment. If the provider suspects that an incapacitated consumer is living in unsafe conditions, the provider is obligated to conform to statutes regarding mandatory reporting.

12.29. Standards for 24-hour Programs Requiring Medical Monitoring.

12.29.1. The provider must supply adequate staff monitoring of individuals in the program either through "eyes on" or technological methods, which do not violate the consumer's right to privacy and confidentiality. The initial plan of services will detail the necessary monitoring which may be modified on an ongoing basis as treatment moves forward and the plan of services is revised.

12.29.2. A medical staff person such as a physician, physician extender, registered nurse, or licensed practical nurse functioning within his or her scope of practice must evaluate each patient in the program each shift unless the physician documents no further need for medical monitoring, provided that no such order can occur until the consumer has been in the program for 24 hours.

12.29.3. The provider must have a policy regarding the face-to-face or telemedicine availability of medical staff to directly observe the patient after hours within 30 minutes as necessary and appropriate unless an arrangement is made for alternative medical care.

12.29.4. Behavioral health centers providing medical stabilization must provide or arrange to obtain prescribed psychotropic and general medical medications after initial review by admitting medical staff, which shall be a physician or physician extender.

12.29.5. Behavioral health centers providing medical stabilization must assist consumers in obtaining needed medications as part of discharge planning. The provider shall have a policy with associated procedures regarding the ability of consumers to retain personal medications if discharged against medical advice.

W. Va. Code R. § 64-11-12