[29 Pa.B. 3295]
[Continued from previous Web Page] § 3800.58(b). Staff training--training content
Suggestions were received to add the following training content areas: CASSP principles, universal precautions, behavior management, special education regulations, family dynamics and relationships, use of psychotropic drugs and cultural diversity. IRRC also asked if the Department will approve specific training courses used by providers.
Response
The Department has added two additional training content areas that relate directly to child health and safety: universal precautions and behavior management. Training on administration of medications is addressed in §§ 3800.187 and 3800.188. The Department will not be approving specific training courses for training areas identified in this subsection, since there are many acceptable training alternatives available and appropriate for a facility's particular needs and audiences.
§ 3800.58(e). Staff training--first aid
Several commentators and IRRC requested clarification that a formal certification that is valid for more than 1 year be acceptable for the length of the certification. IRRC asked if the Department will approve this training.
Response
The Department has made the clarification regarding formal certification. The Department will not approve this training, but the training must be completed by a certified individual as specified in subsection (f).
§ 3800.81. Physical accommodations and equipment
One commentator requested a change since this would appear to permit facilities to refuse service to children with a disability.
Response
This was not the Department's intent, and the language was rewritten with involvement of the interested commentator.
§ 3800.89(b). Temperature
Two commentators and a member of the House Aging and Youth Committee suggested that the indoor temperature during sleeping hours was too low.
Response
The Department increased the minimum temperature from 58° to 62° during sleeping hours. Sleeping temperatures will be applied in coordination with the requirements in § 3800.102(2) relating to appropriate bedding to assure comfort while the child is sleeping.
§ 3800.101. Firearms and weapons
One commentator suggested that even police should not be permitted to carry weapons into the facility. One commentator wrote in support of the proposed amendments.
Response
The Department did not change these amendments. Regulation of firearms and weapons carried and used by law enforcement officials is not within the facility's or the Department's responsibility or authority.
§ 3800.102. Child bedrooms
IRRC asked what was meant by an average ceiling height. One comment was received in support of the square footage requirements. One commentator requested room size of 74 rather than 70 square feet. One commentator asked that bunk beds allow enough space for the child to lie comfortably rather than to sit up in bed. One commentator requested the addition specifying circumstances during which children should be placed in private rooms.
Response
In response to IRRC's question, the Department refers to average ceiling height to allow for measurement of rooms with eaves, gables or slanted ceilings. Other changes to the child bedroom requirements were not made as these did not represent the mainstream of public comment on this section.
§ 3800.103. Bathrooms
One commentator suggested that bar soap should be permitted in family settings. One commentator asked about the requirement to provide and label individual toiletry items.
Response
Use of bar soap by multiple users is prohibited since bar soap is a receptacle for transmission of bacteria and germs. The Department clarified subsections (g) and (h) so that individual items required for each child include a towel, washcloth, comb, hairbrush and toothbrush. Other nonpersonal toiletry items such as toothpaste and shampoo may be shared by children.
§ 3800.106. Swimming
IRRC and seven commentators objected to the requirement to fence ponds and lakes on the premises due to the cost impact. Several comments also suggested that a lifeguard should be required only when children are swimming, and not while boating or fishing.
Response
In consideration of cost implications, the Department eliminated these two requirements. The Department cautions providers of service to institute the precautions necessary to protect child safety if water areas are located near areas accessible by the children and during water activities while children are not swimming.
§ 3800.121. Unobstructed egress
Four commentators requested allowance for delayed locking devices on doors.
Response
In accordance with regulations of the Department of Labor and Industry, this change could not be made. Title 34 Pa. Code Chapters 49--60 (relating to fire and panic regulations) do not permit use of delayed locking devices on doors used for egress, except for C-5 occupancies. The Department of Labor and Industry Industrial Board will entertain requests for variances of this requirement if appropriate fire safety safeguards and protections are in place. For further information on delayed locking devices on doors in non-C-5 occupancies, contact the Bureau of Occupational and Industrial Safety, Department of Labor and Industry.
The Department clarified that even if fire safety approval is not required in accordance with State law, means of egress shall not be locked. Means of egress may not be locked unless the facility has a C-5 Certificate of Occupancy from the Pennsylvania Department of Labor and Industry, or an approval in accordance with appropriate local codes in the cities of Scranton, Philadelphia and Pittsburgh.
§ 3800.129. Fireplaces
Five commentators and IRRC suggested that use of fireplaces should be permitted with specific precautions in place.
Response
The Department made this change.
§ 3800.132(j). Fire drills
The Department clarified that elevators will not be used during a fire drill or an actual fire, due to possible power failure and the possibility of elevator shafts acting as chimneys to funnel flames and smoke. Since fire drills are used to practice actual evacuation routes and actions in the event of a real fire, elevators cannot be used in drills.
§ 3800.141. Child health and safety assessment
Three commentators suggested requiring compliance with the requirements of Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT). One commentator suggested adding special diets to the assessment. Three commentators suggested adding hospitalizations, medical diagnoses, medical problems and mother's pregnancy issues to the assessment.
Response
EPSDT is a Medical Assistance (MA) benefit which is available only to children who are eligible for Medical Assistance. While many children receiving services in these facilities are eligible for MA, not all children are eligible. Therefore, it would not be appropriate for these amendments to specify a particular program or benefit to which all children are not entitled. Rather, the Department identified the components of the EPSDT screen as required elements of the child health assessment to assure equal access to appropriate health assessments to all children, regardless of MA eligibility status.
The Department added special dietary needs, hospitalizations, medical diagnoses, medical problems and mother's pregnancy issues to the assessment.
§ 3800.143. Child health examination-general
Three commentators supported the unclothed physical examination, while three commentators objected to an unclothed exam as being intrusive and intimidating. Several commentators requested clear requirements for written documentation of pre-admission examinations. Several commentators suggested adding a history of mental health development, blood lead level assessments and sickle cell screening. One commentator requested that health exams be completed annually at a minimum.
Response
The requirement for an unclothed physical examination was not changed. The other requested changes were made. In response to discussion with commentators following the comment period, the Department also added a requirement for recommendations for follow-up health services, examinations and treatment in § 3800.143(e) (15). The Department changed the term ''physical'' examination to ''health'' examination to more accurately reflect the comprehensive nature of the examination process including more than a physical examination. The Department added that health exams shall be completed annually, or more frequently as recommended by the American Academy of Pediatrics.
§ 3800.143. Child health examination-behavioral health
Two commentators requested addition of a behavioral health exam as part of each child's exam.
Response
The Department did not make this change since all children receiving services in these facilities do not require a behavioral health examination. In accordance with § 3800.143(e)(15), the health examination shall include recommendations for any follow-up examinations, such as behavioral health, and in accordance with § 3800.148 (relating to health services) the services shall be provided. The Department did add a reference to behavioral health to §§ 3800.143(e)(15) and 3800.148 to emphasize the requirement to include behavioral health services when appropriate for the individual child. This will assure that children receive appropriate behavioral health services based upon their own needs, rather than force a blanket requirement for all children that is not always necessary or appropriate.
§ 3800.144. Dental care
Suggestions were received to require dental care at as early an age as necessary, require protective sealants where indicated by the examination, and require an initial exam within 30 days following admission if there is no record of a prior exam within the past 6 months.
Response
These changes were made.
§ 3800.145 and 3800.146. Vision and hearing care
IRRC requested clarification that American Academy of Pediatrics guidelines recommend vision and hearing screenings at appropriate intervals. Several commentators requested special sections on hearing and vision care.
Response
The Department added new comprehensive sections on both hearing and vision care.
§ 3800.147. Use of tobacco
Many comments were received on this proposed amendment. Most commentators were in favor of restricting child smoking but recommended that staff persons be permitted to smoke outside the facility and out of sight and secondary smoke access of the children.
Response
The Department agrees with the commentators and revised this amendment to prohibit possession and use of tobacco products by children, to prohibit possession and use of tobacco by staff persons inside the facility, and to allow staff use of tobacco outside the facility if fire safety precautions are taken and use of tobacco is out of sight of the children.
§ 3800.148. Health services
Commentators suggested adding diagnostic services, follow-up examinations and treatment, hearing, vision, blood lead level and psychiatric services as examples of medically necessary services.
Response
These items were added to the list of examples of health services that may be planned or prescribed for a child. The Department also clarified that acute and chronic conditions shall be identified for a child, in addition to providing or arranging appropriate medical treatment.
§ 3800.149. Emergency medical plan
One commentator requested that parents receive copies of emergency plans and notification of implementation of the plans.
Response
This change was made. The Department also clarified that conditions that warrant emergency medical care should be listed in the emergency medical plan.
§ 3800.163. Food groups and alternative diets
One commentator suggested adding a requirement to provide dietary alternatives for children with special health needs, religious beliefs regarding dietary restrictions or vegetarian preferences.
Response
This change was made.
§ 3800.164. Withholding or forcing of food prohibited
IRRC and six commentators requested that withholding of snacks and desserts as punishment be permitted as it can be an effective tool in managing a child's behavior.
Response
While the Department does not endorse use of snacks or desserts as a behavior management tool, the amendments have been changed so this is not a regulatory prohibition.
§ 3800.171(4). Safe transportation
Five commentators suggested that the age of drivers be lowered from 21 to 18 years of age.
Response
This change was not made. Staff persons at all levels, including drivers, must be of a maturity level and age to handle the important responsibilities of child care. Drivers in particular require maturity and driving experience that is generally achieved with age.
§ 3800.181(d). Storage of medication
A question was asked about what needs to be stored separately.
Response
The Department clarified this subsection to state that prescription and over-the-counter medications shall be stored separately, as was intended by the proposed rulemaking.
§ 3800.184. Medication log
One commentator suggested that subsection (a)(3)--(5) be removed from the medication log and placed in the child's record. One commentator suggested blood test monitoring for certain psychotropic medications. IRRC suggested that the log be updated at the same time a medication is administered.
Response
The Department made the clarification suggested by IRRC. Side effects, contraindicated medications and special administration instructions are critical items that shall be readily available at the time a medication is administered and therefore cannot be kept in the child's record. Blood test monitoring should be ordered by the prescribing physician and would be required to be provided in accordance with § 3800.148 (relating to health and behavioral health services).
§ 3800.185. Medications errors
IRRC requested an explanation of what constitutes a medication error and the procedures to be followed after a medication error. One question was received from a commentator asking what constitutes a medication error.
Response
The Department added the definition of a ''medication error'' and added that follow-up action taken after a medication error shall be documented. Since the specific procedures to be taken after an error will vary according to the type of medication, type of error and individual child's needs, it is not practical to specify standard follow-up procedures in the regulations. The Department will monitor, through licensing inspections, to assess whether the follow-up action taken was appropriate.
§ 3800.186. Adverse reaction
IRRC and one commentator requested that parents be notified in the event of an adverse medication reaction. IRRC also asked where and for how long this information shall be kept.
Response
Notification to parents was added. Clarification was added that the information shall be kept in the child's record. Section 3800.244 (relating to record retention) specifies how long record information shall be kept.
§ 3800.188. Medications administration training
Ten commentators raised concern and requested more information about the availability and cost of the medications administration course. One commentator requested that the Department should have many courses already approved by the time of regulations implementation. One commentator objected to Departmental approval of the course. One commentator suggested that the 2-year retraining requirement is not necessary. IRRC questioned the qualification of existing in-house provider training programs, requested public notice about the criteria used to determine approval of a training program and asked whether staff persons would be permitted a phase-in period to meet the training requirement.
Response
The Department is very pleased that, throughout the regulatory process, so many providers and other stakeholders have supported the strengthened protections for children in the area of medication administration. The new and improved regulations regarding medications administration and the medications training programs will be a vast improvement over existing protections. The Department notes that there were no objections to the concept of medications administration training and that the concerns and questions centered around the approval and implementation of the training programs.
In August 1998, the Department developed and distributed a draft bulletin to outline the criteria and procedures for Departmental approval of the training programs. The draft bulletin was sent to a representative work group of external stakeholders, including Statewide provider organizations, for review, comment and discussion at a meeting in September 1998. The final bulletin will be published in the Pennsylvania Bulletin as a statement of policy. A list of approved training programs will be published and updated regularly and transmitted to all licensed facilities through a Departmental bulletin.
As specified in the statement of policy, the Department will review the following training information and materials to approve a training program: the training sequence to be used, the time schedule for the training, the method and resources used to evaluate effectiveness of the training, location of training, the number of students to be accommodated in each class, the outline of training curriculum, teaching methods and strategies, course testing provisions, validation of successful completion, trainer qualifications and sample training materials.
The statement of policy will also identify core training content areas to include: reporting and observing skills, types of medication and side effects, staff responsibilities, handling emergencies, facility policies, communication, managing special instructions, administration rights of children and regulatory compliance.
Facilities that have existing in-house training programs are encouraged to submit proposals for approval of their programs to the Department. Training programs will be considered in accordance with the criteria specified in the bulletin.
Due to the serious nature and specific procedures and methods acceptable in the medical field relating to medications administration, the Department does not believe it is appropriate to permit medication administration without Departmental approval of each training program. The Department has met with the State Board of Nursing, which also believes that Departmental approval and monitoring of the training programs is essential to assure the children's safety.
The Department believes that a 2-year retraining requirement is critical to assure staff are trained in up-to-date practice issues and to keep staff skills and knowledge current.
The Department has considered IRRC's and commentators concerns about a phase-in period and assurance of a sufficient supply of training programs before implementing this section of the regulations. The Department has decided to adopt an effective date of 12 months after the publication of the amendments as final rulemaking, for §§ 3800.187 and 3800.188, to permit adequate time for the development and implementation of medication administration programs. By June 26, 2000, all staff persons who administer medications shall meet the criteria specified in §§ 3800.187 and 3800.188.
The Department revised the source for the Standards for Diabetes Education Programs from the National Diabetes Advisory Board to the Pennsylvania Department of Health, since the National Diabetes Advisory Board no longer exists. The Department of Health standards are based on the former standards of the National Diabetes Advisory Board. The Department of Health publishes a list of approved diabetes patient education programs for public use. This list is available through the Department's regional offices.
§ 3800.189. Self-administration of medications
Three commentators and IRRC suggested the elimination of the proposed requirement to limit self-administration to children who are 13 years of age or older.
Response
This change was made.
§ 3800.201. Restrictive procedure
IRRC and one commentator requested a change in terms from ''behavior intervention'' to ''restrictive'' to be consistent with current Chapter 6400 (relating to community homes for individuals mental retardation). Commentators contend that the terms ''behavior intervention'' include a much broader set of procedures and techniques than is meant by use of the term in this chapter.
Response
This change was made.
§ 3800.202. Appropriate use of restrictive procedures
One commentator and IRRC requested the addition of ''or as a program substitution'' in subsection (a), consistent with current Chapter 6400. Four commentators and IRRC requested that restrictive procedures also be permitted to prevent serious property damage in subsection (b). IRRC requested examples of less intrusive techniques.
Response
The addition of ''or as a program substitution'' was added to subsection (a). However, the Department did not add that restrictive procedures may be used to prevent property damage in subsection (b).
Use of restrictive procedures should always be the method of last resort in any behavior management program, even for children with difficult and aggressive behaviors. Other less intrusive methods and techniques to encourage positive behaviors are available and encouraged, such as close observation and supervision of a child to anticipate and de-escalate frustration and anger in advance of aggressive behavior, positive rewards for good behavior, clear expectations and rules for the child, teaching of all staff persons to apply the facility rules consistently, separation of the child from an activity or person before aggressive behavior escalates, removal of the child from the group accompanied by staff consultation and active and interesting programs for the children so they are not idle.
If a child's behavior escalates and damage to property is threatened or occurs, often the behavior that causes property damage may be a direct threat to the health and safety of others, such as throwing a large heavy item or breaking glass. In such a case, the behavior that causes property damage poses a threat to the child or others, and a restrictive procedure may be used to prevent injury, as long as other less intrusive methods have been tried but have failed. If, however, the child threatens or causes property damage that does not pose a health and safety threat, such as writing on a wall or tearing pages from a book, other methods of behavior management shall be used and restrictive procedures are not permitted. The Department believes that restrictive procedures are generally unnecessary and that they are ineffective in treating or changing maladaptive behavior. Positive behavior management methods have been used as a successful tool for the treatment of even the most difficult and challenging behaviors.
§ 3800.203. Restrictive procedure plan
Three commentators stated that this will significantly increase paperwork. One commentator requested an addition to the planning group to include any person invited by the child or parent.
Response
The Department believes that the benefit of protecting children from abuse or misuse of restrictive procedures justifies any additional time spent in developing the restrictive procedure plan. Paperwork will not be required if restrictive procedures are not used, which is strongly encouraged whenever possible.
Other persons invited by the child and parent were added to the restrictive procedure planning group.
The Department clarified in subsection (d) that the child and the child's parents should have the opportunity to sign the plan.
§ 3800.204. Unanticipated use
IRRC and several commentators asked for clarification of the meaning of ''unanticipated'' and ''used more than four times.'' One commentator wrote in full support of the proposed amendment. One commentator suggested that eliminating options for behavior management may limit the ability to manage aggressive youth. Another commentator asked for the ability to apply restrictive procedures for up to 5 weeks after admission with no plan in place. One commentator suggested that the proposed amendment may be appropriate for children with disabilities, but it is not appropriate for children in children and youth programs.
Response
The Department does not agree that this limits options for managing difficult behaviors. Rather it allows restrictive procedures to be used as part of an array of options, with appropriate assessment and planning for each individual child. Allowing the use to restrictive procedures for up to 5 weeks without assessment or planning does not assure the child's safety. After restrictive procedures have been necessary for four incidents within a 3-month period, assessment and planning for the individual child is very reasonable and necessary.
The Department clarified that this requirement applies after any type of restrictive procedure is used four times for the same child in any 3-month period. ''Unanticipated'' as per Webster's dictionary means ''unexpected or unforseen.'' There is no special use of this word in these regulations; therefore, a definition in this chapter is not appropriate. If the facility does not have any reason to expect that a child may have behaviors that may require the use of restrictive procedures, but a situation arises when as a last resort restrictive procedures are necessary, that is an unanticipated situation. If, on the other hand, a child with a history of aggressive and assaultive behaviors is admitted, and the facility expects that restrictive procedures may be used for this child, a restrictive procedure plan shall be developed prior to use of a restrictive procedure.
§ 3800.205. Staff training
Three commentators suggested that the Department should not approve restrictive procedure training programs. Four commentators asked for clarification about the Department's approval process and criteria. One commentator thought the proposed amendment was a reduction in training requirements. One commentator suggested adding training in cultural competence. One commentator wrote in support of the proposed amendment. IRRC asked that ''for as long as the person is employed'' be added after the word ''kept'' in subsection (c).
Response
In response to public comment, the Department has eliminated the requirement to formally approve each training program. However, facilities must comply with the training components specified in subsection (b). The Department will monitor each facility and assess the training programs as part of the inspection process to determine if the components specified in subsection (b) are included.
In response to the commentator who perceived the training requirements to be a reduction from current regulation, the Department disagrees. This particular area of regulation has been improved and strengthened for all existing sets of regulations, particularly in the children and youth and mental health areas where no specific restrictive procedure training content was previously specified.
Training in cultural competence was not added, since this is not a direct health and safety issue for the appropriate use of restrictive procedures.
A change was not made to require facilities to keep staff training records for as long as a person is employed. This is not necessary. The length of time staff records are kept should be determined by facility policy and not subject to State regulations, with the exception of keeping documentation long enough to verify compliance with the regulations.
§ 3800.208. Pressure points
Five commentators and IRRC suggested allowing the use of pressure point techniques at the jaw point for bite release.
Response
This change was made.
§ 3800.209. Chemical restraints
IRRC questioned why a physician must examine a child before administration of a chemical restraint, how long vital signs must be monitored, and how long and where documentation in subsection (g) shall be kept. Two commentators suggested that it is not reasonable to require a physician to examine a child before a chemical restraint is administered. One commentator requested parent consent be required prior to administration of a chemical restraint. One commentator objected to the prohibition of PRN orders for control of acute, episodic behavior. Two commentators and IRRC requested clarification on how long of a period vital signs shall be monitored.
Response
Subsection (d)(1) was changed to clarify that vital signs must be monitored for at least 1 hour and for the frequency and duration specified by the prescribing physician. Subsection (f) was changed to reflect that documentation shall be kept in the child's record. The period of time records shall be kept is specified in § 3800.244 (relating to record retention).
No other changes were made. Injecting or administering drugs into a child to control behavior on an emergency basis is perhaps the most serious and intrusive procedure that can be used. Only an onsite, direct physical examination of the child's medical condition, conducted by a licensed physician, prior to each administration of a chemical restraint, can reasonably assure the child's health and safety. This requirement is not intended to support the use of chemical restraints or in any way aid in the ease of administering chemical restraints to children. The Department does not encourage the use of chemical restraints.
Parental consent prior to administration of a chemical restraint is governed in accordance with § 3800.19 (relating to consent to treatment).
Facility administration of PRNs to control a child's behavior is a very dangerous use of medication and subjects a child to unnecessary and unreasonable health risks.
§ 3800.210. Mechanical restraints
One commentator asked to add papoose boards to the list of prohibited mechanical restraints. One commentator suggested that the prohibition of mechanical restraints does not permit facilities to appropriately serve aggressive youth.
Response
A papoose board was added to the list of examples.
If positive behavior management methods, such as those listed in the response to § 3800.202, are used, coupled with limited and reasonable use of manual restraints and exclusion in extreme situations as permitted in §§ 3800.211 and 3800.212, use of mechanical restraints is not necessary to control behavior in nonsecure facilities. Use of mechanical restraints in secure care facilities is permitted.
§ 3800.211. Manual restraints
Seven commentators and IRRC recommended that the requirement in subsection (d) to change positions every 10 consecutive minutes of using a manual restraint be eliminated due to safety issues for staff and children when releasing a child from a manual restraint before a child has gained control. Ten commentators and IRRC recommended that the requirement in subsection (e) to observe and document the condition of the child every 10 minutes a manual restraint is used be eliminated due to staffing costs. One commentator suggested increasing the time for staff observation from 10 to 15 minutes.
Response
The Department did not lessen the requirements for use of manual restraint. Extended use of hands-on control of children beyond 10 minutes is potentially very dangerous and, if not properly administered, controlled and monitored, can result in serious injury or death of a child. There have been several incidents when a person died due to the misuse of a manual restraint.
The Department does not encourage the use of manual restraints. Manual restraints may be used as a last resort only when all other methods of behavior intervention have been tried but have failed. Manual restraints shall be immediately released when the child has regained self-control. The Department believes that changing positions and requiring another staff person to observe and document the physical and emotional conditions of the child every 10 minutes, will be best protect the child during use of manual restraints.
Throughout the regulatory development process, advocacy organizations have supported these safeguards for use of manual restraints.
§ 3800.212. Exclusion
One commentator requested further prohibitions on the use of exclusion. One commentator suggested that the time frame in subsection (b) be eliminated. One commentator suggested that use of exclusion be part of the child's individual service plan. Two commentators and IRRC requested that subsection (c), which restricts the frequent use of exclusion within the same day, be eliminated.
Response
No changes were made to this section. Comments indicate a continuum of opinion on the regulation of exclusion, from those who believe there should be more stringent requirements to those who believe that the requirements are overly restrictive. The Department believes the amendments strike the proper balance of interests and that, as proposed, will protect children from the potentially harmful effects of overuse of exclusion. The use of exclusion for a child for more than four times in a day is confusing to the child, and, frequent use of exclusion decreases the effectiveness of this method of behavior intervention.
As suggested, the amendments do require the development of an extensive plan for use of exclusion (§ 3800.203) and that plan shall be part of the individual service plan (§ 3800.226(5)).
§ 3800.221--3800.223. Description of services, admission and placement process
IRRC and several commentators raised concern about reduction in program standards, particularly relating to placement and admission procedures and safeguards.
Response
In response to these concerns, the Department reevaluated the existing regulations to determine where, if any, reductions in program standards occurred. As suggested by commentators, the Department found the reductions largely in the areas of service description, admissions and placement. Based on public comment, the Department has made additions to the final-form regulations to address these areas (§§ 3800.221--3800.223). In response to the concerns about the prevention of inappropriate placement of children in facilities that cannot meet a child's needs, these three new sections will assure that a child is placed in an appropriate facility that can meet the child's needs.
§ 3800.224. Development of ISP
Two commentators and IRRC requested increased facilitated involvement of the child's parent. One commentator suggested that a short term ISP be developed within 72 hours of arrival at the facility. One commentator and IRRC requested addition of an emergency care plan for children who are in short-term emergency placements of 30 or fewer days.
Response
The Department strengthened the requirements for facilities to involve the child's parent by adding requirements to include any person invited by the child or the child's parent in subsection (b), mutually convenient meeting times and places in subsection (c), documentation of efforts to involve the parent in subsection (d) and an explanation that the child and the child's parents shall have the opportunity to sign the plan in subsection (e).
The Department did not add a requirement for a short-term plan within 72 hours of the child's arrival or for children in placement for 30 or fewer days. It would be very difficult for facilities to prepare an effective service plan within a few days of a child's arrival due to staffing issues, time to notify and involve appropriate persons, and the lack of time to observe the child's needs and behaviors in the new setting. Preparing a plan within a few days or a week of a child's arrival could result in staff time being misdirected to unnecessary paperwork without increased protections for the child.
Emergency care and placement can be received at any setting covered by these or other regulations such as child foster care. A contracting agency that purchases emergency placement services may require short-term planning services as part of its funding requirements.
§ 3800.225. Review and revision of the ISP
Three commentators suggested that quarterly reporting should be required. IRRC and one commentator suggested that these regulations should be consistent with the Mental Health Procedures Act relating to progress reviews every 30 days. IRRC also questioned if parents would be involved in the review and revision of the plan.
Response
As suggested by IRRC, the Department added a cross reference to § 3800.224 to specify that parents must be involved in review and revision of the plan.
The time frame for formal review and revision of the plan remains at 6 months. This time frame is based upon section 471(a)(16) and 475(5)(B) of the Social Security Act (42 U.S.C.A. §§ 671(a)(16) and 675(5)(B)) and 42 Pa.C.S. § 6351(e) (relating to disposition of dependent child), both of which require 6 month program reviews. The Department did consider, and an original draft of the regulations shared with external stakeholders included, quarterly reviews of the ISP; however, many objections were received from external groups citing statutory requirements and current § 3810.35 requiring 6 month reviews.
The Mental Health Procedures Act and Chapter 5100 are not referenced in this section because only some of the children served in these facilities fall under the jurisdiction of the act. The Mental Health Procedures Act applies independently and separately from these regulations. These regulations are the minimum requirements for any facility serving children with a wide variety of needs. These regulations apply in tandem with the Mental Health Procedures Act, if applicable for an individual child. If there are different or conflicting requirements, the more stringent requirement shall be met.
While the formal review and revision period for the ISP remains at a minimum of 6 months, the Department did consider IRRC's suggestion to require monthly progress reports and has added this requirement in § 3800.226(3) (relating to content of ISP). Monthly progress reports will serve to assess a child's progress and provide regular updates for parents.
§ 3800.226. Content of ISP
One commentator suggested reduction in the ISP content in that it exceeds minimum health and safety requirements. IRRC and several commentators suggested adding measurable and individualized goals, how progress will be measured, who will measure progress and what criteria will be used to measure progress. Other suggested additions include adding components on educational needs, a schedule of family visits, competency development, strengthened family involvement, special education services, medication plan, community linkages and more detailed discharge planning and parental involvement.
Response
The Department added measurable and individualized goals, monthly documentation of the child's progress (see comments received on § 3800.225), the child's need for safety, competency development and permanency, an educational component, methods to measure progress, who is to measure progress and objective criteria to measure progress. The Department also added a new section in § 3800.230, to address parental involvement in discharge planning and notification.
§ 3800.229. Education
Two commentators and IRRC suggested adding several specific requirements of other laws and regulations regarding educational requirements. Three commentators suggested that facilities be prohibited from requiring a child to attend on-grounds schools as a condition of participation at the residential facility. One commentator suggested adding the child's education records to the child's record.
Response
The Department revised this section to broaden the citations of appropriate education regulations in 22 Pa. Code Chapters 11, 14 and 15 (relating to pupil attendance; special education services and programs; and protected handicapped students). However, it is the Department of Education through statutory authority and regulations that will apply and enforce these rights to education protections, and not the Department through these residential licensure regulations. If in the course of Department licensure inspections, suspected violation of education laws and regulations is observed, the Department will notify the Department of Education.
The Department added education and service records to the child's record in § 3800.243.
§ 3800.271. Criteria for secure care
Two commentators suggested additional clarification that secure care is permitted only for children who are alleged delinquent or adjudicated delinquent.
Response
This change was made.
§ 3800.272. Admission to secure care
One commentator suggested the addition of admission requirements for secure care facilities.
Response
This change was made.
§ 3800.274(14) and (15). Additional requirements for secure care--dangerous items
In response to concerns raised at the August 1998 regulations work group meeting, the Department added two new paragraphs relating to furnishings and other items that could pose a danger to children whose health and safety assessment indicates known or suspected suicide or self-injury attempts or known incidents of aggressive or violent behavior. These additional requirements were supported by consensus of the work group members.
§ 3800.274(16) and (17). Additional requirements for secure care--use of handcuffs, leg restraints and seclusion
Several commentators and IRRC suggested that the use of handcuffs, leg restraints and seclusion be prohibited completely or further restricted by decreasing times permitted for their use. IRRC suggested that the current requirements in Chapter 3760 provide more guidance to facilities and more protection to children and that they be retained.
Response
The Department does not agree that the current regulations in Chapter 3760 provide more guidance and more protection than the proposed amendments. Many of the sections in Chapter 3760 are vague and subject to broad interpretation and the proposed amendments include better protections for children. Several examples follow: 1) while § 3760.42(1)(i) allows use of seclusion for up to 16 hours in a 48-hour period, the proposed amendments limit use of seclusion to no more than 12 hours in a 48-hour period; 2) while § 3760.42(2) states that an administrator may order handcuffs for a period not to exceed 1 hour there is no requirement about extended use of handcuffs or any limitation of how long they may be used in a 48-hour period as addressed fully in the proposed amendments; 3) there is no requirement in Chapter 3760 for a restrictive procedure plan for each child, as in the proposed amendments; 4) there is no regulation of exclusion or manual restraints in Chapter 3760, as in the proposed amendments; 5) there are no staff training requirements for the use of restrictive procedures in Chapter 3760 as in the proposed amendments; and 6) there is no requirement for a medical examination regarding the physical health of the child prior to extended use of seclusion or restraint as in the proposed amendments.
The Department concurs with the commentators that use of seclusion, leg restraints and handcuffs should be used as a last resort and that the restraint or seclusion shall be removed as soon as the child has regained control of his behavior. It should be emphasized that the requirements in § 3800.202 apply to the use of seclusion, handcuffs and leg restraints including: may be used only to prevent a child from injuring himself or others, may not be used in a punitive manner, may be used only after other less restrictive methods must have been tried and failed, and shall be discontinued as soon as the child regains control of his behavior.
The Department did reduce the time frames for use of handcuffs and leg restraints from 6 hours to 2 hours. The time for a supervisory check of handcuffs and leg restraints was reduced from 2 hours to 1 hour. A new requirement was added to limit use of handcuffs and leg restraints to no more than 4 hours in any 48-hour period.
The use of seclusion was reduced from 6 hours to 4 hours and from 12 hours to 8 hours in any 48-hour period. Requirements for the seclusion room were added.
Lastly, new requirements were added to restrict use of mechanical restraints and seclusion simultaneously, and to limit use of seclusion and mechanical restraints to no more than 6 hours in a 48-hour period.
The final-form regulations regarding use of seclusion, leg restraints and handcuffs in secure facilities represent significantly increased protections to children from the current regulations and are supported by those commentators who were concerned about protecting children from overuse of seclusion, handcuffs and leg restraints.
§ 3800.283. Additional requirements for secure detention--bedrooms
Three commentators requested that the special requirement for detention for no more than one child per bedroom be eliminated, since many detention centers currently permit two children per room as required under § 3800.274(11).
Response
This change was made.
§ 3800.283(1). Additional requirements for secure detention--staff qualifications
One commentator suggested that the minimum qualifications for a child care worker in a secure detention facility be maintained as an associate's degree as in the current regulations in Chapter 3760.
Response
This change was made.
§ 3800.283. Additional requirements for secure detention--other
One commentator suggested that several additional requirements that exist in Chapter 3760 be added, including compliance with specific portions of 42 Pa.C.S. §§ 6301--6365, minimum age of children in detention, continual contact with children, prohibition of children and adult offenders in the same areas, reporting to the Department of children detained for more than 35 days, placement reviews, limits on new buildings, specifications for living and study areas and requirements for recreation programs.
Response
The Department very seriously considered these additions. The Department carefully reviewed the current Chapter 3760 requirements and the proposed amendments for gaps and important requirements that were excluded. In response to public comment, the Department added the following requirements: compliance with all the sections of Juvenile Act relating to detention, the minimum age of children in detention, continual visual or audio contact with children, prohibition of children and adult offenders in same space, quarterly reporting to the Department for children detained for more than 35 days and placement reviews. The Department did not add the requirement for limitations on new buildings because this is not appropriate for licensure regulations. The Department did not add a requirement for living and study areas or recreation programs, since these are issues for all facilities and not just secure detention, no other comments were received on these issues, and these are not health and safety protections appropriate for minimum licensure regulations.
§ 3800.291. Criteria for transitional living
Three commentators suggested eliminating or clarifying the Departmental approval of training courses.
Response
Upon reconsideration, the Department eliminated the requirement for Department approval.
§ 3800.293. Additional requirements for transitional living
IRRC requested clarification of this section as it relates to onsite staff supervision and the number of children on the premises.
Response
The Department agrees this was confusing as proposed and made this clarification.
§ 3800.303(a)(3). Additional requirements for outdoor and mobile programs--handwashing
The Department of Agriculture and IRRC suggested that children have the opportunity to wash their hands before each meal and brush their teeth at least daily.
Response
This change was made.
§ 3800.303(a)(6). Additional requirements for outdoor and mobile programs--litter
One commentator requested deletion of a litter from the list of emergency items.
Response
This change was not made. A portable litter is necessary for transportation of a child in an emergency situation if the children are not in an area that can be reached by a rescue vehicle.
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