PROPOSED RULEMAKING
[ 55 PA. CODE CHS. 23, 3800 AND 5310 ]
Residential Treatment Facilities
[40 Pa.B. 6109]
[Saturday, October 23, 2010]The Department of Public Welfare (Department), under the authority of sections 201(2) and 403(b) and Articles IX and X of the Public Welfare Code (code) (62 P. S. §§ 201(2), 403(b), 901—922 and 1001—1080) and section 1905(r)(5) of the Social Security Act (42 U.S.C.A. § 1396 d(r)(5)), proposes to add Chapter 23 (relating to residential treatment facilities) and amend Chapters 3800 and 5310 (relating to child residential and day treatment facilities; and community residential rehabilitation services for the mentally ill) to read as set forth in Annex A.
Purpose of Proposed Rulemaking
The purpose of this proposed rulemaking is to codify minimum licensing and program standards, requirements for participation in the Medical Assistance (MA) Program and MA payment conditions for residential treatment facilities (RTFs), which provide behavior health services in a 24-hour setting to children under 21 years of age with a diagnosed mental illness or serious emotional or behavioral disorder, or a drug and alcohol diagnosis in conjunction with a diagnosed mental illness or serious emotional or behavioral disorder. The proposed rulemaking will codify the requirements that apply to RTFs in one chapter, replace the requirements for RTFs currently in Chapter 3800 and Notices of Rule Change. It also proposes to require RTFs to be accredited by the Council on Accreditation (COA), the Commission on Accreditation of Residential Facilities (CARF), the Joint Commission (JCAHO) or other accrediting entity approved by the Department. Finally, this proposed rulemaking also proposes to amend § 3800.3 (relating to exemptions) to exempt RTFs and community residential rehabilitation group homes from Chapter 3800. Exempting community residential rehabilitation group homes from Chapter 3800 will give eight bed nonaccredited RTFs that are not located on a larger campus the option to meet the requirements under Chapter 5310 to become licensed as a community residential rehabilitation group home.
The proposed health and safety, treatment, program and payment requirements for comprehensive, culturally competent, medically necessary behavioral health treatment in an RTF were developed after obtaining input through numerous stakeholder meetings and comments to draft proposals prior to publication. By codifying the requirements for RTFs in one chapter, the Department intends to eliminate multiple licensing and monitoring visits to each RTF, thereby enhancing the efficiency of Departmental operations while minimizing interruptions in RTF programs. By requiring accreditation and the concomitant adherence to the standards established by the accrediting entities, in addition to compliance with this proposed rulemaking, the Department intends to enhance the quality of care provided in RTFs.
Requirements
The following is a summary of the specific provisions in the proposed rulemaking:
Sections 23.11—23.22 (relating to general requirements) address the general licensing and approval requirements for an RTF, including maximum capacity, fire safety, reportable and recordable incidents, consent to treatment and confidentiality of records. Section 23.14 (relating to maximum capacity) specifically provides for a maximum number of beds per unit and a maximum number of units per facility. RTFs that currently exceed the proposed maximums will have the opportunity to develop and implement a transition plan to reduce the number of beds. Section 23.17 (relating to reportable incidents) expands the definition of ''reportable incident'' in Chapter 3800 to include the use of drugs as a restraint.
Sections 23.31—23.34 (relating to child rights) address child rights and include several additional child rights beyond those in Chapter 3800. For example, one additional right is the right to be free from restraint or seclusion used as a means of coercion, discipline, convenience or retaliation. Other additional rights in § 23.32 (relating to specific rights) include the right of the child to advocate for the child's own needs without retaliation or removal from the RTF, as well as the right to a clean, healthy and comfortable living environment.
Sections 23.41—23.44 (relating to family participation) address family participation and require an RTF to make efforts to include a child's family in the planning and delivery of the child's treatment. The proposed requirements include providing information about the treatment process, the expected length of stay, the type of treatment, the formal process to resolve disagreements and the contact information for advocacy organizations and consumer satisfaction teams. Another proposed requirement is for an RTF to provide opportunities for families to have regular contact with the child and staff, as well as to collaboratively develop a family participation plan that identifies specific goals for the family's participation in the child's ongoing treatment. Other proposed requirements include the following: assisting with scheduling visits and travel arrangements; providing treatment services in conjunction with family visits at the RTF in the child's home and in the community; arranging for family participation in medical appointments; and providing adequate comfortable space for visiting.
Sections 23.51—23.62 (relating to staffing) address staff qualifications, including education and experience, staffing ratios and staff training. These proposed sections require enhanced credentials, increased staffing ratios and more clinically oriented training topics than current requirements, in addition to health and safety training requirements. Section 23.60 (relating to family advocacy) also proposes the requirement that an RTF have a family advocate.
Sections 23.81—23.106, 23.121—23.133, 23.141—23.149, 23.151, 23.161—23.164 and 23.171 address the health and safety issues that are currently in Chapter 3800. Because Chapter 3800 will no longer apply to RTFs, the requirements from that chapter that will continue to apply to RTFs are repeated in this proposed rulemaking. They include the physical site, fire safety, child and staff health, nutrition and safe transportation.
Sections 23.181—23.190 (relating to medications) address the storage, use and administration of medications. Section 23.183 (relating to use of prescription medications) requires that information be provided to a child and the child's family regarding the effects and side effects of medication. Section 23.187 (relating to administration) limits the ability to administer prescription medications and injections to licensed personnel, except as specified in §§ 23.188 and 23.189 (relating to self-administration; and special circumstances). In addition, § 23.190 (relating to medication performance monitoring) requires that an RTF report to the Department every 6 months the number and percentage of children who are taking multiple psychotropic or antipsychotic medications.
Sections 23.201—23.206 (relating to restrictive procedures) address restrictive procedures and focus on the requirements that an RTF use de-escalation approaches and other alternatives to coercive techniques to reduce or eliminate the need to use restrictive procedures. Section 23.205 (relating to emergency safety intervention) specifically prohibits the use of prone restraint. Section 23.203 (relating to written plan to create a restraint-free environment) requires an RTF to create a written plan with goals and objectives and time frames to develop a trauma-informed approach which establishes a restraint-free environment within the RTF.
Sections 23.221—23.230 (relating to services) address the services that an RTF provides as part of its program. Section 23.221 (relating to description of services) requires an RTF to have a service description with both detailed information about the scope of the program and general information about the services the RTF will provide. The service description must include the number, ages and special characteristics of the children the RTF proposes to serve. Section 23.224 (relating to content of the ISP) requires an RTF to develop a treatment plan that addresses the behavioral health needs of each child, with specified goals, objectives and interventions, as part of the individual service plan that addresses the broader health, safety and education goals for the child.
Sections 23.241—23.244 and 23.251—23.257 address the requirements regarding the content, storage and retention of child records. Additional requirements for facilities serving nine or more children as well as additional requirements for facilities providing secure care are also included in these sections.
Sections 23.281, 23.282 and 23.291—23.295 address the participation requirements for an RTF licensed under this chapter to become and remain an MA provider. Section 23.291 (relating to general participation requirements for an RTF) includes a new requirement that each RTF shall receive and maintain accreditation by COA, CARF, JACHO or other accrediting body approved by the Department. Participation requirements for an out-of-State RTF and an RTF serving children with a drug and alcohol diagnosis in conjunction with a diagnosed mental illness or serious emotional behavioral disorder are also specified in these sections.
Sections 23.301—23.319, 23.321—23.323, 23.331, 23.332, 23.341, 23.342 and 23.351 address payment provisions, including rate-setting policy, cost reporting, allowable costs, bed occupancy, readmissions, therapeutic and hospital leave, payment conditions and third-party liability. In addition, §§ 23.341 and 23.342 (relating to provider abuse; and administrative sanctions) address administrative sanctions. Section 23.351 (relating to provider right of appeal) addresses an RTF's appeal rights.
Affected Individuals and Organizations
Stakeholders, including children, families, advocates, providers, county and State government representatives, and medical directors of behavioral health managed care organizations have, for the past decade, been providing input to the Department in developing the clinical guidelines and program standards for RTFs in workgroups, through draft documents, at forums and in meetings. The Department has adopted many of the recommendations of these stakeholders in developing this proposed rulemaking.
The incorporation of the requirements for licensure, covering health and safety as well as treatment, participation in the MA program and MA payment conditions into one chapter will result in greater convenience to an RTF, since the RTF will not have to refer to multiple documents to determine the requirements that apply to it. One coordinated annual licensing and monitoring visit from the Department, rather than multiple visits, will also be more convenient for an RTF. Some RTFs that currently participate in the MA program may incur greater costs as a result of the proposed accreditation requirements, number of units per facility, staffing ratios, higher staff qualifications and increased training requirements, but the rate-setting policies address the additional costs associated with these requirements.
Accomplishments and Benefits
The proposed rulemaking benefits children under 21 years of age who need behavioral health services in the more intensive level of care provided in an RTF. The proposed rulemaking promotes quality treatment in meeting a child's needs and assisting in making the transition to a less-restrictive setting. Children and their families will benefit from the enhanced standards for behavioral health services proposed in this chapter.
Fiscal Impact
The increased costs incurred by an RTF to meet the enhanced staffing and training requirements may result in higher per diem rates for some RTFs, but the expected aggregate reduction in lengths of stay due to high quality behavioral health treatment is expected to offset the fiscal impact of the higher rates. In addition, RTFs that are currently not accredited and choose to remain MA providers will incur the costs associated with accreditation. The Department will be able to build the cost of accreditation into the rates.
Paperwork Requirements
Since the Department is proposing that accreditation be a requirement for participation in the MA program, an RTF that is not accredited will have to complete additional paperwork to become accredited. For those RTFs, it is estimated that the accreditation requirement will also entail several staff hours per week for paperwork in addition to the initial paperwork needed to become accredited. Requirements for accreditation vary by accrediting organization.
Effective Date
This proposed rulemaking will be effective 12 months from the date the final-form rulemaking is published in the Pennsylvania Bulletin, with the exception of the accreditation requirement, which will be effective 24 months from the date the final-form rulemaking is published in the Pennsylvania Bulletin.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Shaye Erhard, Office of Mental Health and Substance Abuse Services, 233 Beechmont Building, DGS Complex, P. O. Box 2675, Harrisburg, PA 17105-2675, ra-rtfcomments@state.pa.us within 30 calendar days after the date of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference regulation No. 14-522 when submitting comments.
Persons with a disability who require an auxiliary aid or service may submit comments by using the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 7, 2010, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, priorto final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
HARRIET DICHTER,
SecretaryFiscal Note: 14-522. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 55. PUBLIC WELFARE
PART I. DEPARTMENT OF PUBLIC WELFARE
Subpart C. LICENSING/APPROVAL
CHAPTER 23. RESIDENTIAL TREATMENT FACILITIES Subchap.
A. GENERAL PROVISIONS B. LICENSURE/APPROVAL REQUIREMENTS C. PARTICIPATION REQUIREMENTS D. PAYMENT PROVISIONS Subchapter A. GENERAL PROVISIONS
Sec.
23.1. Purpose. 23.2. Applicability. 23.3. Definitions. 23.4. Waivers. § 23.1. Purpose.
The purpose of this chapter is to establish minimum licensing and treatment standards, MA participation requirements and MA payment conditions for RTFs.
§ 23.2. Applicability.
This chapter applies to RTFs that operate in this Commonwealth to serve children under 21 years of age with a diagnosed mental illness, or serious emotional or behavioral disorder, or a drug and alcohol diagnosis in conjunction with a diagnosed mental illness or serious emotional or behavioral disorder.
§ 23.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Active treatment—The implementation and supervision of interventions and services outlined in a treatment plan.
Antipsychotic medication—A powerful tranquilizer, such as the phenothiazines or butyrophenones, used especially to treat psychosis and believed to act by blocking dopamine nervous receptors.
ASD—Autism Spectrum Disorder
BMI—Body Mass Index.
CAO—County Assistance Office.
CASSP (Child and Adolescent Service System Program)—A philosophy of collaborative service delivery in which services that are rendered to children and their families are least restrictive and least intrusive, child centered, family focused, community based, multisystem and culturally competent.
CCYA—The County Children and Youth Agency.
CMS—Centers for Medicare and Medicaid Services—The agency of the United States Department of Health and Human Services that is responsible for administering the Medical Assistance Program.
CRNP—Certified Registered Nurse Practitioner.
Certified day—A day of care approved by the Department under this chapter.
Child—An individual under 21 years of age.
Contracting agency—A public or private entity that has an agreement with an RTF to pay for services provided by the RTF.
Cost center—A group of services or employees, or both, or another unit or type of activity into which functions of a facility are divided for purposes of expense assignment and allocations.
Day of care—Room, board and professional behavioral health services calculated on a 24-hour day basis using a midnight census hour.
Department—The Department of Public Welfare of the Commonwealth.
Drug used as a restraint—A drug that has the following characteristics:
(i) Is administered to manage a child's behavior in a way that reduces the risk to the safety of the child or others.
(ii) Has the temporary effect of restricting the child's freedom of movement.
(iii) Is not standard treatment for the child's medical or psychiatric condition.
(iv) A drug ordered by a licensed physician as part of ongoing medical treatment, or as pretreatment prior to a medical or dental examination or treatment, is not a drug used as a restraint.
Eligible recipient—An individual who has been determined eligible for MA benefits.
Emergency safety intervention—The use of an intervention, such as a restraint or seclusion, as an immediate response to an emergency safety situation.
Emergency safety situation—Unanticipated child behavior that places the child or others at serious risk of violence or injury if no intervention occurs and that calls for an emergency safety intervention as defined in this section.
Family—Birth, adoptive or foster parents; grandparents; other relatives; nonrelatives identified by the child; and guardians or custodians, except child welfare agencies.
Family advocate—A family member of a child who is currently receiving services or has received services from a child-serving system including mental health, intellectual disabilities, child welfare, juvenile justice, drug and alcohol or special education.
Fire safety expert—A local fire department, fire protection engineer, Commonwealth-certified fire protection instructor, college instructor in fire science, county of Commonwealth fire school, volunteer trained and certified by a county or Commonwealth fire school, or an insurance company loss control representative.
Fiscal year—The period of time beginning July 1 and ending June 30 of the following year.
High Fidelity Wraparound—A team-based, collaborative process for developing and implementing individualized care plans for children with mental health challenges and their families. The therapeutic goals of High Fidelity Wraparound are to meet the needs prioritized by youth and family, improve their ability and confidence to manage their own services and supports, develop or strengthen their natural social support system over time, and integrate the work of all child serving systems and natural supports into one streamlined plan.
Hospital-reserved bed day—A day when the child is approved for and admitted to an acute care general hospital, a psychiatric or rehabilitation unit of an acute care general hospital, or a psychiatric or rehabilitation hospital and the child is expected to return to the RTF.
ISP—Individual Service Plan.
ISPT—Interagency Service Planning Team.
Intimate sexual contact—An act of an erotic nature involving unclothed physical contact.
JPO—Juvenile probation office.
LEA—Local Education Agency.
MA—Medical Assistance.
MH/MR—Mental Health/Mental Retardation.
Manual restraint—The application of a physical hands-on technique without the use of a device, for the purposes of restraining the free movement of a child's body or portion of a child's body.
Mechanical restraint—A device attached or adjacent to a child's body that the child cannot easily remove that restricts the child's freedom of movement of the child's normal access to the child's body, which include handcuffs, anklets, wristlets, camisoles, helmets with fasteners, muffs and mitts with fasteners, poseys, waist straps, head straps, papoose boards, restraining sheets and similar devices.
Minor—A child under 18 years of age.
Natural supports—A nonpaid assistance, relationship or interaction that allows a child to advance in the community in ways that correspond to the typical routines and social actions of other people and that enhance the child's relationships.
PA—Physician's Assistant.
PRN—Pro Re Nata.
Psychotropic medication—A medication, as defined by active ingredient, in one of the following drug classes:
(i) Attention deficit hyperactivity disorder agents.
(ii) Antidepressants.
(iii) Antidyskinetic agents.
(iv) Antipsychotic agents.
(v) Anxiolytic and sedative or hypnotic agents.
(vi) Mood stabilizers.
(vii) Substance abuse agents.
RN—Registered Nurse.
RTF—Residential treatment facility—A nonhospital living setting in which behavioral health treatment is provided to one or more children with a diagnosed mental illness, or serious emotional behavioral disorders or a diagnosed substance abuse condition in conjunction with a diagnosed mental illness or serious emotional or behavioral disorder.
Restraint—A manual restraint, mechanical restraint or drug used as a restraint as defined in this section, which does not include briefly holding, without restricting free movement.
Seclusion—Placing a child in a locked room, which includes a room with any type of door-locking device, such as a key lock, spring lock, bolt lock, food pressure lock or physically holding the door shut.
Serious injury—A significant impairment of the physical condition of a child as determined by qualified medical personnel, including, but not limited to, burns, lacerations, bone fractures, substantial hematoma and injuries to internal organs.
Serious occurrence—A child's death, a serious injury or a child's suicide attempt.
Staff—Individuals employed directly or on a contract basis by an RTF.
Trauma-informed care—A philosophy with related intervention practices that recognizes the prevalence and consequences of maltreatment or childhood trauma, is committed to avoiding retraumatization during treatment and care, and promotes resilience to enable the child to overcome the negative consequences of trauma and move forward in the child's development.
§ 23.4. Waivers.
(a) An RTF may submit a written request for a waiver of any provision of this chapter, except as specified in subsection (b), on a form prescribed by the Department, and the Department may grant a waiver of one or more provisions of this chapter if the RTF demonstrates the following:
(1) A waiver will not jeopardize the health or safety of a child.
(2) The RTF has an alternative for providing an equivalent level of health, safety and emotional protection of the children.
(3) The children will benefit from the waiver of the requirement.
(b) The scope, definitions and applicability of this chapter may not be waived.
(c) The Department may grant a waiver unconditionally or subject to conditions that the RTF shall meet, and a decision to grant a waiver will identify the time period for which the waiver will be in effect, subject to the review specified in subsection (e).
(d) An RTF shall notify affected children and their families of the Department's decision to grant or deny a request for a waiver and post both the waiver request and the Department's decision in a conspicuous and public place in the RTF.
(e) The Department will review its decision to grant a waiver annually and may revoke the waiver if the conditions of the waiver are not met.
Subchapter B. LICENSURE/APPROVAL REQUIREMENTS GENERAL REQUIREMENTS
Sec.
23.11. Licensure or approval of facilities. 23.12. Inspections and certificates of compliance. 23.13. Appeals. 23.14. Maximum capacity. 23.15. Fire safety approval. 23.16. Child abuse. 23.17. Reportable incidents. 23.18. Recordable incidents. 23.19. Child funds. 23.20. Consent to treatment. 23.21. Confidentiality of records. 23.22. Applicable health and safety laws. CHILD RIGHTS
23.31. Notification of rights, grievance procedures and consent
to treatment protections.23.32. Specific rights. 23.33. Prohibition against deprivation of rights. 23.34. Notification of RTF restraint policy. FAMILY PARTICIPATION
23.41. Family participation in the treatment process. 23.42. Documentation of efforts for family contacts. 23.43. Space onsite for family visits. 23.44. Assistance with coordination of transportation for family
contacts.STAFFING
23.51. Child abuse and criminal history checks. 23.52. Staff hiring, retention and utilization. 23.53. RTF director. 23.54. Medical director. 23.55. Clinical director. 23.56. Mental health professional. 23.57. Mental health worker and mental health aide. 23.58. Staff ratios. 23.59. Primary contact. 23.60. Family advocacy. 23.61. Supervision. 23.62. Staff training. PHYSICAL SITE
23.81. Physical accommodations and equipment. 23.82. Poisons. 23.83. Heat sources. 23.84. Sanitation. 23.85. Ventilation. 23.86. Lighting. 23.87. Surfaces. 23.88. Water. 23.89. Air temperature. 23.90. Communication system. 23.91. Emergency telephone numbers. 23.92. Screens. 23.93. Handrails and railings. 23.94. Landings and stairs. 23.95. Furniture and equipment. 23.96. First aid supplies. 23.97. Elevators. 23.98. Indoor activity space. 23.99. Recreation space. 23.100. Exterior conditions. 23.101. Firearms and weapons. 23.102. Child bedrooms. 23.103. Bathrooms. 23.104. Kitchen areas. 23.105. Laundry. 23.106. Swimming. FIRE SAFETY
23.121. Unobstructed egress. 23.122. Exits. 23.123. Evacuation procedures. 23.124. Notification of local fire officials. 23.125. Flammable and combustible materials. 23.126. Furnaces. 23.127. Portable space heaters. 23.128. Wood and coal burning stoves. 23.129. Fireplaces. 23.130. Smoke detectors and fire alarms. 23.131. Fire extinguishers. 23.132. Fire drills. 23.133. False alarms. CHILD HEALTH
23.141. Child health and safety. 23.142. Health and safety plan. 23.143. Child health examination. 23.144. Dental care. 23.145. Vision care. 23.146. Hearing care. 23.147. Use of tobacco. 23.148. Health and behavioral health services. 23.149. Emergency medical plan. STAFF HEALTH
23.151. Staff health statement. NUTRITION
23.161. Three meals a day. 23.162. Quantity of food. 23.163. Food groups and alternative diets. 23.164. Withholding or forcing of food prohibited. TRANSPORTATION
23.171. Safe transportation. MEDICATIONS
23.181. Storage of medications. 23.182. Labeling of medications. 23.183. Use of prescription medications. 23.184. Medication log. 23.185. Medication errors. 23.186. Adverse reaction. 23.187. Administration. 23.188. Self-administration. 23.189. Special circumstances. 23.190. Medication performance monitoring. RESTRICTIVE PROCEDURES
23.201. General information. 23.202. Restrictive procedure policy. 23.203. Written plan to create a restraint-free environment. 23.204. Time out. 23.205. Emergency safety intervention. 23.206. Restrictive procedure records. SERVICES
23.221. Description of services. 23.222. Admission process. 23.223. Development of the ISP. 23.224. Content of the ISP. 23.225. Review and revision of the ISP. 23.226. Implementation of the ISP. 23.227. Copies of the ISP. 23.228. Behavioral health treatment. 23.229. Education. 23.230. Discharge and aftercare planning. CHILD RECORDS
23.241. Emergency information. 23.242. Child records. 23.243. Content of child records. 23.244. Record retention. RTFs SERVING NINE OR MORE CHILDREN
23.251. Additional requirements. 23.252. Sewage system approval. 23.253. Evacuation procedures. 23.254. Exit signs. 23.255. Laundry. 23.256. Dishwashing. 23.257. Child bedrooms.
GENERAL REQUIREMENTS § 23.11. Licensure or approval of facilities.
The requirements under Chapter 20 (relating to licensure or approval of facilities and agencies) shall be met.
§ 23.12. Inspections and certificates of compliance.
(a) An RTF will be individually inspected at least once a year, including at least one onsite unannounced inspection, unless otherwise specified by statute.
(b) A separate certificate of compliance will be issued for each physical structure that qualifies for a certificate.
(c) The RTF shall post in a conspicuous and public place the current certificate of compliance and a copy of this chapter.
§ 23.13. Appeals.
(a) An RTF may appeal the Department's licensure or approval action under 2 Pa.C.S. §§ 501—508 and 701—704 (relating to the Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure), except that the appeal shall be made by filing a petition within 30 days after service of notice of the action.
(b) Subsection (a) supersedes the appeal period of 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
§ 23.14. Maximum capacity.
(a) An RTF may not exceed 4 units of 12 beds each for a total of 48 beds.
(b) The maximum capacity specified on the certificate of compliance will be based on available bedroom square footage, the number of toilets and sinks, the needs of the population of children residing in the RTF, the RTF's staffing levels, the RTF's program components and the treatment intensity of the RTF.
(c) The maximum capacity specified on the certificate of compliance may not be exceeded and may be temporarily or permanently reduced if the Department determines that the physical plant, clinical programming or needs of the population of children residing in the RTF requires that maximum capacity be reduced.
§ 23.15. Fire safety approval.
(a) If a fire safety approval is required by State statute or regulations, a valid fire safety approval from the appropriate authority, listing the type of occupancy, is required prior to receiving a certificate of compliance under this chapter.
(b) If the fire safety approval is withdrawn or restricted, the RTF shall notify the appropriate Departmental regional office orally within 24 hours and in writing within 48 hours of the withdrawal or restriction with a plan for remedy or a plan for child relocation.
(c) If a building is structurally renovated or altered after the initial fire safety approval is issued, the RTF shall submit to the appropriate Departmental regional office within 2 weeks of the completed renovation, the new fire safety approval, or written certification that a new fire safety approval is not required, from a fire safety authority.
§ 23.16. Child abuse.
(a) An RTF shall immediately report suspected abuse of a child in accordance with 23 Pa.C.S. §§ 6301—6385 (relating to the Child Protective Services Law) and Chapter 3490 (relating to child protective services).
(b) If an allegation of child abuse involves staff, the RTF shall submit and implement a plan of supervision in accordance with 23 Pa.C.S. § 6368 (relating to investigation of reports) and § 3490.56 (relating to county agency investigation of suspected child abuse perpetrated by persons employed or supervised by child care services and residential facilities).
§ 23.17. Reportable incidents.
(a) A reportable incident is one of the following:
(1) A death of a child.
(2) A physical act by a child to attempt suicide.
(3) An injury, trauma or illness of a child requiring inpatient treatment at a hospital.
(4) An injury, trauma or illness of a child requiring outpatient treatment at a hospital, not to include minor injuries, such as sprains or cuts.
(5) A violation of a child's rights specified in § 23.32 (relating to specific rights).
(6) Intimate sexual contact or attempted sexual contact between children, consensual or otherwise.
(7) Sexual assault of a child.
(8) A child absence from the premises for 2 hours or more without the approval of staff, or for 30 minutes or more without the approval of staff, if the child may be in immediate jeopardy.
(9) Use of a drug as a restraint.
(10) Abuse or misuse of a child's funds.
(11) An outbreak of a serious communicable disease as defined in 28 Pa. Code § 27.2 (relating to specific identified reportable diseases, infections and conditions).
(12) An incident requiring the services of the fire, police or emergency management departments, except for false alarms.
(13) A condition which results in closure of the RTF.
(14) Emergency relocation of a child.
(15) Food poisoning of a child.
(16) Bankruptcy filed by the RTF.
(17) A prescription medication error.
(18) A criminal conviction against the RTF, administrator or staff that occurs after the reporting on the criminal history checks under § 23.51 (relating to child abuse and criminal history checks).
(b) An RTF shall develop, and submit for Department approval, written policies and procedures, on the prevention, reporting, investigation and management of reportable incidents.
(c) An RTF shall complete an initial written reportable incident report, in a format prescribed by the Department, and send it to the appropriate Departmental regional office, the contracting agency, the Department of Health, the RTF's Family Advocate and the Disability Rights Network no later than close of business the next business day. Staff shall document in the child's record that the incident was reported and a copy of the report must be maintained in the child's record.
(d) An RTF shall orally report to the appropriate Departmental regional office and the contracting agency within 12 hours of the following:
(1) A fire requiring the relocation of children.
(2) An unexpected death of a child.
(3) A child's unauthorized absence from the premises, if police have been notified.
(e) An RTF shall initiate an investigation of a reportable incident immediately following the identification of the incident.
(f) An RTF shall submit a final written reportable incident report to the agencies specified in subsection (c) by no later than close of business the next business day following the conclusion of the investigation.
(g) If the final reportable incident report validates the occurrence of the alleged incident, the RTF shall notify, unless restricted by applicable confidentiality statutes, regulations or a court order, the affected child and other children who could be potentially harmed, and their family.
(h) A copy of a reportable incident report shall be maintained for 6 years in the business office of the RTF.
(i) An RTF shall notify the child's parent and, when applicable, the child's guardian or custodian, as soon as possible, and in no case later than 24 hours after a reportable incident relating to a specific child, unless restricted by applicable confidentiality statutes, regulations or a court order. An RTF shall document in the child's record that the parent and, when applicable, the guardian or custodian, has been notified. The documentation must include the date and time of notification, the name of the staff providing notification, and actions taken subsequent to the event until the time of contact with the parent, guardian or custodian.
(j) A report of death must comply with the following:
(1) In addition to the reporting requirements contained in this section, an RTF shall report the death of a child to the CMS regional office by no later than close of business the next business day after a child's death.
(2) An RTF shall document in the child's record that the death was reported to the CMS regional office.
(k) An RTF shall notify the child's parent and, when applicable, the child's guardian or custodian of a child who has been restrained as soon as possible after the initiation of each emergency safety intervention.
(l) A report of a serious occurrence must comply with the following:
(1) An RTF shall report each serious occurrence to both the State Medicaid agency and, unless prohibited by State law, the State-designated protection and advocacy system.
(2) Serious occurrences that must be reported include the following:
(i) The death of a child.
(ii) A serious injury as defined in this chapter.
(iii) An attempted suicide by a child.
(3) Staff shall report a serious occurrence involving a resident to both the Department and the State-designated Protection and Advocacy system by no later than close of business the next business day after a serious occurrence. The report must include the following:
(i) The name of the child.
(ii) A description of the occurrence.
(iii) The name, street address and telephone number of the RTF.
(4) In the case of a minor, an RTF shall notify the child's parent and, when applicable, legal guardian or custodian as soon as possible, and in no case later than 24 hours after the serious occurrence.
(5) An RTF shall document in a child's record that the serious occurrence was reported to both the Department and the State-designated Protection and Advocacy system, including the name of the person to whom the incident was reported. A copy of the report shall be maintained in a child's record, as well as in the incident and accident report logs kept by the facility.
§ 23.18. Recordable incidents.
An RTF shall maintain for 6 years in the business office of the RTF, a record of the following:
(1) Seizures.
(2) Suicidal gestures.
(3) Incidents of staff or residents of the RTF intentionally striking or physically injuring a child.
(4) Property damage of more than $500.
(5) Child absences from the premises without the approval of staff, that do not meet the definition of reportable incident in § 23.17(a) (relating to reportable incidents).
(6) Injuries, traumas and illnesses of children that do not meet the definition of reportable incident in § 23.17(a), which occur at the RTF or offsite.
(7) Emergency safety situations, the emergency safety interventions used and their outcomes.
§ 23.19. Child funds.
(a) Money earned or received by a child is the child's personal property.
(b) Commingling of child and RTF funds is prohibited.
(c) An RTF may place reasonable limits on the amount of money to which a child has access. The RTF shall develop a policy on access to a child's funds, which must be approved by the Department.
(d) An RTF shall maintain a separate accounting system for child funds, which includes the dates and amounts of deposits and withdrawals.
(e) Except for a child expected to be in the RTF for fewer than 30 days, an RTF shall maintain an interest-bearing account for child funds, with interest earned tracked and applied for the child.
(f) An RTF shall return money left in a child's account to the child upon discharge or transfer.
§ 23.20. Consent to treatment.
(a) An RTF shall comply with the following statutes and regulations relating to consent to treatment, to the extent applicable:
(1) 42 Pa.C.S. §§ 6301—6365 (relating to the Juvenile Act).
(2) The Mental Health Procedures Act (50 P. S. §§ 7101—7503).
(3) Sections 1—5 of the act of February 13, 1970 (P. L. 19, No. 10) (35 P. S. §§ 10101—10105).
(4) Chapter 5100 (relating to mental health procedures).
(5) The Pennsylvania Drug and Alcohol Abuse Control Act (71 P. S. §§ 1690.101—1690.115).
(6) Sections 1.1 and 1.2 of the act of February 13, 1970 (35 P. S. §§ 10101.1 and 10101.2), regarding mental health treatment and release of medical records.
(b) The following consent requirements apply, unless in conflict with the requirements of the statutes and regulations specified in subsection (a):
(1) An RTF shall obtain written consent upon admission, whenever possible, from a child's parent and, when applicable, a child's guardian or custodian, for the provision of routine health care such as child health examinations, dental care, vision care, hearing care and treatment for injuries and illnesses.
(2) An RTF shall obtain separate written consent prior to treatment, from a child's parent and, when applicable, a child's guardian or custodian, for each incidence of nonroutine treatment, such as elective surgery or experimental procedures. If the parent or, when applicable, the guardian or custodian, cannot be located, an RTF shall obtain separate written consent prior to treatment by court order, for each incidence of nonroutine treatment, such as elective surgery or experimental procedures. A CCYA that has legal custody of a child may not consent to nonroutine treatment.
(3) Consent for emergency care or treatment is not required.
§ 23.21. Confidentiality of records.
(a) An RTF shall comply with the following statutes and regulations relating to confidentiality of records, to the extent applicable.
(1) 23 Pa.C.S. §§ 6301—6386 (relating to the Child Protective Services Law).
(2) 23 Pa.C.S. §§ 2101—2910 (relating to Adoption Act).
(3) The Mental Health Procedures Act (50 P. S. §§ 7101—7503).
(4) Section 602(d) of the Mental Health and Mental Retardation Act (50 P. S. § 4602(d)).
(5) The Confidentiality of HIV-Related Information Act (35 P. S. §§ 7601—7612).
(6) Sections 5100.31—5100.39 (relating to confidentiality of mental health records).
(7) Sections 3490.91—3490.95 (relating to confidentiality).
(8) Sections 1.1 and 1.2 of the act of February 13, 1970 (35 P. S. §§ 10101.1 and 10101.2), regarding mental health treatment and release of medical records.
(9) The Health Insurance Portability and Accountability Act (HIPAA) of 1996, Privacy Rule (45 CFR Parts 160 and 164, Subparts A and E).
(10) 42 CFR Part 2 (relating to confidentiality of alcohol and drug abuse patient records).
(b) The following confidentiality requirements apply unless in conflict with the requirements of the statutes and regulations specified in subsection (a):
(1) A child's record, information concerning a child or family, and information that may identify a child or family by name or address, is confidential and may not be disclosed or used other than in the course of official RTF duties.
(2) Information specified in paragraph (1) shall be released upon request only to the following:
(i) A child's parent.
(ii) A child's guardian or custodian.
(iii) The child's and parent's attorneys.
(iv) Court and court services, including probation staff.
(v) County government agencies.
(vi) Authorized agents of the Department.
(vii) A child, if the child is 14 years of age or older, unless the information may be harmful to the child. Documentation of the harm to be prevented by withholding information shall be kept in the child's record.
(3) Information specified in paragraph (1) may be released to other providers of service to the child if the information is necessary for the provider to carry out its responsibilities. Documentation of the need for release of the information shall be kept in the child's record.
(4) Information specified in paragraph (1) may not be used for teaching or research purposes unless the information released does not contain information which would identify the child or family.
(5) Information specified in paragraph (1) may not be released to anyone specified in paragraphs (2)—(4), without written authorization from the court, if applicable, or the child's parent or, when applicable, the child's guardian or custodian, or the child.
(6) Release of information specified in paragraph (1) may not violate the confidentiality of another child.
§ 23.22. Applicable health and safety laws.
An RTF shall have a valid certificate or approval document from the appropriate State or Federal agency relating to health and safety protections for child required by another applicable law.
CHILD RIGHTS § 23.31. Notification of rights, grievance procedures and consent to treatment protections.
(a) The RTF shall develop and implement written grievance procedures for a child, a child's family and staff to ensure the investigation and resolution of grievances regarding an alleged violation of a child's rights.
(b) A copy of a child's rights, the grievance procedures and a list of organizations that can assist in lodging grievances, and applicable consent to treatment protections shall be posted in a conspicuous and public place at the RTF.
(c) A child, a child's parents, unless court-ordered otherwise; and, when applicable, a child's guardian or custodian, shall be informed of the child rights and grievance procedures in an easily understood manner and in the primary language or mode of communication of the child and child's parent or, when applicable, guardian or custodian.
(d) A child shall be informed of these rights and grievance procedures upon admission. The child's parent and, when applicable, a child's guardian or custodian, shall be informed of the child rights and grievance procedures within 7 days of the child's admission, if not present when the child is admitted.
(1) A child, parent and, when applicable, the guardian or custodian, shall be given a copy of this information in writing in the primary language of the child and the child's parent or, when applicable, guardian or custodian. The RTF shall obtain a signed statement acknowledging receipt of this information to be retained in the child's file.
(2) If the RTF is unable to obtain an acknowledgement of receipt, the efforts made to obtain the signature shall be documented in the child's file.
(e) A child and the child's family have the right to lodge a grievance with the RTF for an alleged violation of the rights specified in § 23.32 (relating to specific rights) without fear of retaliation.
§ 23.32. Specific rights.
(a) A child may not be discriminated against because of race, color, religious creed, disability, handicap, ancestry, sexual orientation, national origin, age or sex.
(b) A child may not be abused, mistreated, threatened, harassed or subject to corporal punishment.
(c) A child shall be treated with fairness, dignity and respect.
(d) A child shall be informed of the rules of the RTF.
(e) A child has the right to communicate with others by telephone subject to RTF policy approved by the Department, and written instructions from the CCYA, JPO or court regarding circumstances, frequency, time, payment and privacy of telephone calls.
(f) A child has the right to visit with family at least once a week, at a time and location convenient for the family, the child and the RTF, as outlined in the family participation plan specified in § 23.42 (relating to documentation of efforts for family contacts), unless visits are restricted by court order. This subsection does not restrict more frequent family visits.
(g) A child has the right to receive and send mail.
(1) Outgoing mail may not be opened or read by staff.
(2) Incoming mail from Federal, State or county officials, or from the child's attorney, may not be opened or read by staff.
(3) Incoming mail from persons other than those specified in paragraph (2), may not be opened or read by staff, unless the RTF has reasonable suspicion that contraband, or other information that may jeopardize the child's health, safety, or well-being, may be enclosed. If the RTF has reasonable suspicion that contraband, or other information that may jeopardize the child's health, safety, or well-being may be enclosed, mail may be opened by the child in the presence of staff.
(h) A child has the right to communicate and visit privately with the child's attorney and clergy.
(i) A child has the right to be protected from unnecessary search and seizure. An RTF shall conduct search and seizure procedures, subject to RTF policy approved by the Department.
(j) A child has the right to practice the religion or faith of the child's choice, or not to practice a religion or faith.
(k) A child shall have appropriate medical, behavioral health and dental treatment.
(l) A child shall have appropriate rehabilitation services.
(m) A child shall be free from excessive medication.
(n) A child may not be subjected to unusual or extreme methods of discipline which may cause psychological or physical harm to the child.
(o) A child shall have clean, seasonal clothing that is age and gender appropriate.
(p) A child has the right to the following:
(1) To ask staff questions related to the child's treatment.
(2) To advocate for himself.
(3) To disagree respectfully.
(4) To submit a formal grievance without jeopardizing the child's standing or privileges within the RTF or the right to continued services.
(q) A child shall be free from restraint or seclusion used as a means of coercion, discipline, convenience or retaliation.
(r) A child shall have a clean, healthy and comfortable living environment.
§ 23.33. Prohibition against deprivation of rights.
(a) A child may not be deprived of the specific rights specified in § 23.32 (relating to specific rights) or civil rights.
(b) A child's rights may not be used as a reward or sanction.
(c) A child's visits with family may not be used as a reward or sanction.
§ 23.34. Notification of RTF restraint policy.
At admission, an RTF shall:
(1) Inform both the child, the child's parent and, when applicable, the guardian or custodian, of the RTF's policy regarding the use of restraint during an emergency safety situation that may occur while the child is at the RTF.
(2) Communicate its restraint policy in a language that the child, the child's family, guardian or custodian, understands, including American Sign Language. When necessary, the RTF shall provide interpreters or translators.
(3) Obtain an acknowledgement, in writing, from the child, or in the case of a minor, from the parent or, when applicable, the guardian or custodian that he has been informed of the RTF's policy on the use of restraint during an emergency safety situation. Staff shall file this acknowledgement in the child's record.
(4) Provide a copy of the RTF restraint to the child and, in the case of a minor, to the child's parent or, when applicable, guardian or custodian in a language that the child, the child's family, guardian or custodian understands.
(5) Provide contact information, including the phone number and mailing address, for the Disabilities Rights Network.
FAMILY PARTICIPATION § 23.41. Family participation in the treatment process.
An RTF shall ensure that a child's family is given the opportunity to participate fully in the planning for delivery of services to the child as evidenced by the following:
(1) Meetings being held at times convenient to the family with at least 2 weeks notice to maximize the possibility of family participation.
(2) ISPT meetings and other formal meetings with the family as active members of the team.
(3) Demonstrated opportunities for frequent and regular family contact including daily telephone calls and at least weekly visits at the family home or at the RTF, as well as community activities with the family within and outside the RTF to be determined as part of the treatment planning.
(4) Family therapy for the benefit of the child, as well as parent support and education groups involving parents and, when applicable, guardians or custodians, as appropriate, shall be provided to a child as part of the overall treatment offered in the RTF and documented in the child's record.
(5) Efforts to link the child and family with community resources, both formal human service systems and informal community supports. An RTF shall base the choice of community linkages outside the RTF on the planned expectation that the child will be returning to the community and will need support to assist a child in making a smooth transition.
(6) Participation of the family in making appropriate medical and medication decisions including arranging for family participation in the medical appointments when desired by the family.
(7) Participation of the family in making appropriate decisions about the child's activities and schedule.
(8) Having a formal process for families to resolve disagreements about the treatment plan or the delivery of service.
(9) An RTF shall ensure that an onsite meeting with the parents and, when applicable, the guardians or custodians, is arranged within the first 7 days of the child's admission including day of admission, unless the family is present on the day of admission. The following information shall be discussed with the family at the time of the onsite visit:
(i) Family expectations regarding the child's treatment.
(ii) The need to jointly develop a written family participation plan that identifies specific goals for family participation in the child's ongoing treatment, to be reviewed and updated at least monthly.
(iii) Expected length of stay and type of treatment that will be offered.
(iv) Opportunities for family-focused therapy targeted to benefit the child, using evidence-based approaches, when possible, with discussions about potential frequencies and possible locations when distance is an issue.
(v) Information about advocacy organizations and consumer satisfaction teams that are available to assist in the lodging of grievances.
§ 23.42. Documentation of efforts for family contacts.
An RTF shall document in the child's record efforts to involve a child's family in service planning and delivery.
§ 23.43. Space onsite for family visits.
An RTF shall have at least one designated area onsite for family visits that offers privacy for the child and family.
§ 23.44. Assistance with coordination of transportation for family contacts.
An RTF shall assist with the coordination of available transportation for the family's onsite participation and visits when the family needs assistance with transportation.
STAFFING § 23.51. Child abuse and criminal history checks.
Child abuse and criminal history checks shall be completed for all staff in accordance with 23 Pa.C.S. §§ 6301—6386 (relating to the Child Protective Services Law) and Chapter 3490 (relating to child protective services).
§ 23.52. Staff hiring, retention and utilization.
(a) Staff hiring, retention and utilization shall be in accordance with 23 Pa.C.S. §§ 6301—6386 (relating to the Child Protective Services Law) and Chapter 3490 (relating to child protective services).
(b) Prospective staff responsible for providing direct care to a child shall have a preemployment physical and drug screening.
§ 23.53. RTF director.
(a) There shall be one director responsible for the RTF
(b) The director shall be responsible for the administration and management of the RTF, including the safety and protection of the children, implementation of policies and procedures and compliance with this chapter.
(c) The director shall have one of the following:
(1) A master's degree from an accredited college or university and 2 years work experience in administration or human services.
(2) A bachelor's degree from an accredited college or university and 4 years work experience in administration or human services.
§ 23.54. Medical director.
(a) There shall be one medical director who is responsible for overseeing the delivery of services and programs to children.
(b) The medical director shall be a board-certified or board-eligible psychiatrist with at least 2 years experience in the delivery of behavioral health services to children.
(c) The medical director shall be responsible for the following duties:
(1) Regular and ongoing contact with children and more frequent contact for a child on medication, ensuring at least 2 hours per week of psychiatric time for every 5 children.
(2) Ensuring a psychiatric face-to-face visit with a child on psychotropic medication as deemed clinically appropriate, but not less frequently than every 30 days by the medical director or a psychiatrist working under the direction of the medical director.
(3) Regular and ongoing contact with treatment staff to formulate and monitor the implementation of the child's treatment plans.
(4) Regular and ongoing face-to-face or phone contact with a child's family.
(5) Regular and ongoing contact, as appropriate, with external, community agencies and natural supports important to a child's life, including informal networking and face-to-face participation in ISPT and treatment team meetings.
(6) Preparation of formal, written psychiatric evaluations as required.
(7) Coordination and supervision of RTF staff on clinical and medical matters, including the prescription and monitoring of psychotropic and other medication.
§ 23.55. Clinical director.
(a) There shall be one clinical director who ensures that staff receives training and clinical supervision.
(b) The clinical director shall be a licensed psychologist, a licensed clinical social worker, or a licensed marriage and family therapist, with at least 2 years of experience providing therapeutic interventions to children with serious emotional or behavioral disorders.
(c) The medical director may serve as the clinical director provided that the medical director has at least 2 years of experience providing therapeutic interventions to children with serious emotional or behavioral disorders.
§ 23.56. Mental health professional.
(a) The mental health professional shall have the following duties:
(1) Participating on the treatment team.
(2) Ensuring the implementation of the treatment interventions, therapeutic activities and schedule for the children.
(3) Supervising of mental health workers.
(b) The mental health professional shall have the following:
(1) A graduate degree in a generally recognized clinical, mental health discipline such as psychiatry, social work, psychology, counseling, nursing, rehabilitation or activities therapies.
(2) At least 1 year of clinical experience working with children in a behavioral health program whose operating principles were in accordance with CASSP principles.
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