Montana Administrative Register Notice 37-599 No. 24   12/20/2012    
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In the matter of the adoption of New Rules I through IV, the amendment of ARM 37.34.1401, 37.34.1402, 37.34.1404, 37.34.1418, and 37.34.1420, and the repeal of ARM 37.34.1403, 37.34.1408, 37.34.1409, 37.34.1410, 37.34.1415, 37.34.1419, 37.34.1421, 37.34.1426, 37.34.1427, and 37.34.1428 pertaining to positive behavior support













TO:  All Concerned Persons


1.  On September 6, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-599 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 1741 of the 2012 Montana Administrative Register, Issue Number 17.


2.   The department has adopted New Rule I (37.34.1405) and II (37.34.1411), as proposed.


3.  The department has amended ARM 37.34.1402, 37.34.1418, and 37.34.1420 as proposed and repealed ARM 37.34.1403, 37.34.1408, 37.34.1409, 37.34.1410, 37.34.1415, 37.34.1419, 37.34.1421, 37.34.1426, 37.34.1427, and 37.34.1428 as proposed.


4.  The department has adopted the following rules as proposed with the following changes from the original proposal.  Matter to be added is underlined.  Matter to be deleted is interlined.


            NEW RULE III (37.34.1412)  POSITIVE BEHAVIOR SUPPORT:  BEHAVIOR SUPPORT PLAN  (1) through (3) remain as proposed.

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

            (a)  the person;

            (b)  the person's planning team;

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

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

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

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


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA


            NEW RULE IV (37.34.1422)  POSITIVE BEHAVIOR SUPPORT:  RESTRICTED PROCEDURES  (1)  The following restricted procedures may be used for up to 90 calendar days as part of a behavior support plan that is developed and approved in accordance with ARM 37.34.1412 and approved in accordance with (2):

            (a) through (k) remain as proposed.

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

            (a)  through (c) remain as proposed.

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

            (3)  A copy of the behavior support plan incorporating restricted procedures as listed in (1) must be sent to the developmental disabilities program director within three working days from after approval as required in (2).

            (4) and (5) remain as proposed.


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA


5.  The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:


            37.34.1401  POSITIVE BEHAVIOR SUPPORT:  PURPOSE  (1)  The purpose of the rules under this subchapter is to require the use of positive behavior supports intended to encourage individual growth, improve quality of life, and reduce the use of unnecessary intrusive measures for persons funded through the department.  Positive behavior support focuses on what is important to the person as well as what is important for the person when encouraging growth and change.  This rule prohibits the use of seclusion or the use of aversive, abusive or demeaning procedures, or procedures that cause pain or discomfort except as provided for in the emergency procedures allowed for in ARM 37.34.1420.  This subchapter applies to persons receiving services from community-based providers that are funded entirely or in part by the department.


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA


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

            (1)  "Advocate" is defined in ARM 37.34.102.

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

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

            (4) through (21) remain as proposed, but are renumbered (3) through (20).


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-203, MCA


6.  The department has thoroughly considered the comments and testimony received.  A summary of the comments received and the department's responses are as follows:


COMMENT #1:  One commenter suggested changing the language of proposed New Rule III (37.34.1412) to include reference to physical restraint.


RESPONSE #1:  While the department appreciates the suggestions to change the language, the language will remain the same because ARM 37.34.1420 already addresses physical restraint.  It is the department's intention to make sure the rules are clear while not being repetitive.  If the language needs to be changed in the future, it would require the department to open multiple rules rather than one rule.


COMMENT #2:  A commenter suggested that the department change (4) in proposed New Rule III (37.34.1412), to add some language to clarify that consent equals approval of this behavior support plan.


RESPONSE #2:  The department agrees and will add the suggested language to New Rule III (37.34.1412).


COMMENT #3:  A commenter stated that in (4)(a) through (d) in New Rule III (37.34.1412), it is unclear if all parties listed are required to consent to the behavior support plan.  They also requested the department clarify who must consent prior to approval.  The commenter also wanted to know if there is an appeal process.


RESPONSE #3:  The department reviewed the proposed rule and has removed (4)(b) from the proposed language in New Rule III (37.34.1412), and has renumbered the remaining items.  The department's appeal process is located in Title 37, chapter 5, subchapter 3.


COMMENT #4:  A commenter recommended changing (6) in New Rule III (37.34.1412) because there is an apparent typo, and also adding the phrase, "during the implementation" of the behavior support plan, would clarify the intent of the rule.


RESPONSE #4:  The department will correct the typing error by changing "or" to "for", and added the suggested language.


COMMENT #5:  One commenter stated that (1) in New Rule IV (37.34.1422) is confusing.  The commenter suggested changing the proposed rule to show that the behavior support plan be approved in accordance with (2) of this rule.


RESPONSE #5:  The department agrees and has amended the rule language to specify that behavior support plan must be approved in accordance with rule.


COMMENT #6:  One commenter suggested an amendment to (2) in New Rule IV (37.34.1422) to expand the qualifications and scope of the rule. 


RESPONSE #6:  The department agrees to specify that the documentation of the advanced training and experience be submitted to the DDP director.  The department does not agree with the suggested changes to the requirements in (d).  The department maintains that a person with a degree in applied behavior analysis must also present documentation to the department of advanced training and experience in order to develop behavior support plans.


COMMENT #7: One commenter recommended replacing "from approval" in (3) of New Rule IV (37.34.1422) with "after approval as required in (2) of New Rule IV (37.34.1422)."


RESPONSE #7:  The department will make the recommended change to New Rule IV (37.34.1422).


COMMENT #8:  One commenter suggested the department remove the word "aversive" in ARM 37.34.1401 and add a reference in New Rule IV (37.34.1422) to restricted procedures.


RESPONSE #8:  The department agrees and has made the suggested changes. The department also removed the word "aversive" from the definitions because with the above referenced change, the word is no longer used in this rule set.


COMMENT #9:  A commenter asked that the definitions for aversive procedures be noted as such in the definitions.  The commenter also requested the definitions for physical restraint and physical enforcement be reworded.  The commenter expressed concern that the current definitions are not distinct from each other and the term "physical enforcement" be discarded and be replaced with positive physical redirection.


RESPONSE #9:  The department will keep the definitions as proposed.  The department intends to define the words and terms within this subchapter in accordance with their commonly accepted definitions in the field of developmental disabilities.


COMMENT #10:  One commenter asked that the sentence, "The person may not be placed in a locked room or restricted to a room or area from which egress is prevented," be added to the definitions for exclusion time out.


RESPONSE #10:  The commenter's suggestion appears to apply to seclusion time out and is not applicable to exclusion time out.  Seclusion time out is also defined in this rule so the department will not make the recommended change.


COMMENT #11:  One commenter requested the adoption of MAR 37-599 be postponed until the rules for MAR 37-608 may be adopted simultaneously.  The commenter expressed that the proposed changes to MAR 37-608 have substantial oversight to MAR 37-599 and therefore need to be in place.


RESPONSE #11:  The department appreciates the concern expressed by this commenter and understands the importance of making sure the rules are correlated.  The department weighed the possible options and believes it is important that MAR 37-599 be adopted as soon as possible because this set of rules is very outdated and does not reflect current practice.  Therefore, the department will not postpone the adoption of MAR 37-599.


COMMENT #12:  One commenter expressed concerns over the applicability of these rules to children's services.  The commenter states that while positive behavior supports are a component of applied behavior analysis that interventions often used with children are not included.


RESPONSE #12:  After consideration of these comments the department determined there is insufficient justification to adopt a separate set of positive behavior support rules for children.  The restrictive procedures allowed in rule for 90 days with the caveat for a longer period if needed and approved, are sufficient for both children and adults to learn the appropriate skills.




/s/ Cary Lund                                                 /s/ Mary E. Dalton acting for            

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State December 12, 2012


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