2013 -- H 6088

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LC02524

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RIGHT TO FREEDOM FROM

RESTRAINT ACT

     Introduced By: Representatives Naughton, Valencia, E Coderre, Slater, and Gallison

     Date Introduced: May 08, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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     CHAPTER 72.11

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RIGHT TO FREEDOM FROM RESTRAINT ACT

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     42-72.11-1. Short title. -- This chapter shall be known and may be cited as the "Right to

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Freedom from Restraint Act."

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     42-72.11-2. Fundamental purpose. -- This chapter is enacted to protect and promote the

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right of each person who is served by a covered facility to be free from physical or mental abuse,

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corporal punishment, involuntary seclusion, and any physical or chemical restraints (as defined in

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this chapter).

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     42-72.11-3. Definitions. -- For the purposes of this chapter:

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     (1) "Service provider" means any person employed or contracted by a covered facility to

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provide support or care, residential support, education, or direct supervision.

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     (2) "Covered facility" means any agency, organization, or public or private entity,

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regardless of the state agency under whose authority its license or certification is established, that

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provides support or care, residential support, education, or direct supervision.

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     (3) "Physical restraint" means the use of a staff member's body to immobilize or reduce

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the free movement of a person's arms, legs, torso, or head, in order to ensure the physical safety

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of that person or other individual in the facility. The term does not include:

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     (i) Briefly holding a person in order to calm or comfort the person; or

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     (ii) A physical escort, such as the temporary touching or holding of the hand, wrist, arm,

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shoulder, or back for the purpose of inducing a person to walk to a safe location.

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     (4) "Mechanical restraint" means any mechanical restriction that immobilizes or reduces

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the free movement of a person's arms, legs, torso, or head. This term does not include:

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     (i) Medical devices, including, but not limited to, supports prescribed by a health care

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provider to achieve proper body position or balance;

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     (ii) Helmets or other protective gear used to protect a person from injuries due to a fall; or

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     (iii) Helmets, mitts and similar devices used to prevent self-injury when the device is part

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of a documented treatment plan and is the least restrictive means available to prevent the self-

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injury.

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     (5) "Life threatening physical restraint" means any physical restraint or hold on a person

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that may cause death, including prone restraint or any restraint that is contraindicated by a

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person's physical or mental health.

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     (6) "Chemical restraint" means a medication used to control behavior or restrict the

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patient's freedom of movement that is not a standard treatment for the person's medical or

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psychiatric condition.

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     (7) "Seclusion" means the involuntary confinement in a room in a covered facility,

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whether alone or with staff supervision, in a manner that prevents the person from leaving. This

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definition does not pertain to the use of "time out" as an acceptable form of short-term behavioral

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management.

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     (8) "Time out" means the brief voluntary separation designed to help the person de-

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escalate. During the "time out," a person's freedom of movement is not restricted and the person

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need not be directly supervised, but must be visually monitored.

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     42-72.11-4. Use of restraints. -- (a) No service provider may use a life-threatening

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physical restraint, any mechanical restraint, or any chemical restraint at any time.

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     (b) After January 1, 2014, no service provider shall administer a restraint on a person

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unless trained in accordance with the provisions of this chapter.

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     (c) No service provider shall administer a physical restraint on a person except to prevent

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imminent risk of serious physical danger to the individual or other person.

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     (d) All de-escalation techniques and less restrictive interventions available must be

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utilized prior to any physical restraint.

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     (e) Any use of restraint on a person must be in accordance with safe and appropriate

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restraining techniques and be administered only by service providers that have both initial and

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ongoing education and training in the proper and safe use of restraints as established in this

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chapter.

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     (f) The condition of the person in a restraint must be continually assessed, monitored, and

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reevaluated and the restriction of movement or activity by restraint must be ended at the earliest

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possible time, considering the physical safety of the person being restrained and other individuals.

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For the purposes of this section, "monitor" means:

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     (1) Direct observation; or

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     (2) Observation by way of video monitoring within physical proximity sufficient to

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provide aid as may be needed;

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     (g) Restraints may not be written as a standing order or on "as needed" (PRN) basis, in a

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Behavioral Intervention Plan (BIP), or as part of any health care, treatment, or educational plan;

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and

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     (h) All restraints must be recorded by the individuals administering the restraints and

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reviewed by supervisory and medical personnel immediately. A debriefing must occur with all

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staff involved in the restraint, supervisory personnel, medical staff, and the individual restrained,

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as well as family members, guardians, advocates, and any other appropriate individuals within

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seventy-two (72) hours after the restraint was administered.

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     42-72.11-5. Seclusion. -- No service provider may cause the involuntary placement of a

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person in seclusion.

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     42-72.11-6. Recording and data collection. -- (a) Any use of restraint or seclusion on a

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person must be documented. This documentation must be maintained by the covered facility and

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shall be submitted electronically to the licensing agency within four (4) days. The following

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information must be included:

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     (1) The name of the person restrained;

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     (2) The name of the covered facility;

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     (3) The names of the staff participating in the restraint;

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     (4) The names of other staff present (including medical professionals);

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     (5) The date and time of the restraint;

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     (6) The length of time of the restraint;

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     (7) The location of the restraint;

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     (8) The nature of the emergency and what steps were taken to prevent the emergency

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from arising if there were indications that such an emergency was likely to arise;

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     (9) The attempts of de-escalation and positive behavioral supports utilized;

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     (10) When and how the family or advocate was contacted;

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     (11) Who attended the debriefing and when the debriefing occurred; and

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     (12) The outcome of the debriefing.

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     (b) If the use of restraint or seclusion results in serious physical injury or death to the

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person, the covered facility shall report the incident immediately to the director of the state

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agency that has jurisdiction or supervisory control over the covered facility. The director shall

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report any incidence of serious injury or death to the attorney general, and if a child, to the child

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advocate.

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     42-72.11-7. Training and policies. -- (a) Each covered facility shall:

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     (1) Develop policies and procedures that establish monitoring, documentation, reporting,

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and internal review of the use of restraint and seclusion in accordance with this chapter;

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     (2) Require training of all service providers in the reduction/elimination of restraint and

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seclusion. The training shall include, but not be limited to:

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     (i) Leadership towards organizational change;

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     (ii) Use of data to inform practice;

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     (iii) Workforce development;

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     (iv) Use of prevention tools;

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     (v) Inclusion of individuals, families, and advocates; and

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     (vi) Debriefing techniques and outcomes.

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     (3) Make the policies and procedures required under subdivision (a)(1) available to the

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director of the state agency that has jurisdiction or supervisory control over the covered facility.

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     42-72.11-8. Penalties. -- (a) Any covered facility that does not comply with the

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provisions of this chapter is subject to licensing action, including, but not limited to, license or

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certification revocation, by the agency or department of state government that has jurisdiction or

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supervisory control over the covered facility.

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     (b) Any service provider who willfully and intentionally violates the provisions of this

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chapter, and by reason of that violation inflicts physical injury upon a person, shall, upon

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conviction of the violation be fined a sum not exceeding five hundred dollars ($500) and/or

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imprisoned for a term not exceeding six (6) months. However, if the service provider is

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exonerated, all costs incurred in defense of these charges shall be paid by the covered facility.

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     (c) Nothing contained in this chapter shall be construed to limit or restrict any criminal or

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civil action available to an appropriate party under applicable state law.

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     42-72.11-9. Rules and regulations. -- The office of health and human services, the

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department of education, the department of children, youth, and families, the department of

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human services, the department of health, and the department of behavioral healthcare,

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developmental disabilities and hospitals shall promulgate rules and regulations pursuant to the

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Administrative Procedures Act, title 42, chapter 35, on or before January 1, 2014, to implement

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the intent of this chapter.

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     SECTION 2. Section 40.1-26-3 of the General Laws in Chapter 40.1-26 entitled "Rights

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for Persons with Developmental Disabilities" is hereby amended to read as follows:

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     40.1-26-3. Participants' rights. -- In addition to any other rights provided by state or

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federal laws, a participant as defined in this chapter shall be entitled to the following rights:

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      (1) To be treated with dignity, respect for privacy and have the right to a safe and

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supportive environment;

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      (2) To be free from verbal and physical abuse;

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      (3) (i) To engage in any activity including employment, appropriate to his or her age, and

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interests in the most integrated community setting;

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      (ii) No participant shall be required to perform labor, which involves the essential

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operation and maintenance of the agency or the regular supervision or care of other participants.

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Participants may however, be requested to perform labor involving normal housekeeping and

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home maintenance functions if such responsibilities are documented in the participant's

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individualized plan;

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      (4) To participate in the development of his or her individualized plan and to provide

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informed consent to its implementation or to have an advocate provide informed consent if the

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participant is not competent to do so;

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      (5) To have access to his or her individualized plan and other medical, social, financial,

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vocational, psychiatric, or other information included in the file maintained by the agency;

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      (6) To give written informed consent prior to the imposition of any plan designed to

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modify behavior, including those which utilizes aversive techniques or impairs the participant's

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liberty or to have an advocate provide written informed consent if the participant is not competent

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to do so. Provided, however, that if the participant is competent to provide consent but cannot

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provide written consent, the agency shall accept an alternate form of consent and document in the

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participant's record how such consent was obtained;

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      (7) To register a complaint regarding an alleged violation of rights through the grievance

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procedure delineated in section 40.1-26-5;

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      (8) To be free from unnecessary restraint. Restraints shall not be employed as

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punishment, for the convenience of the staff, or as a substitute for an individualized plan.

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Restraints shall impose the least possible restrictions consistent with their purpose and shall be

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removed when the emergency ends. Restraints shall not cause physical injury to the participant

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and shall be designed to allow the greatest possible comfort. Restraints shall be subject to the

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following conditions:

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      (i) Physical restraint shall be employed only in emergencies to protect the participant or

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others from imminent injury or when prescribed by a physician, when necessary, during the

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conduct of a specific medical or surgical procedure or if necessary for participant protection

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during the time that a medical condition exists;

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      (ii) Chemical restraint shall only be used when prescribed by a physician in extreme

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emergencies in which physical restraint is not possible and the harmful effects of the emergency

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clearly outweigh the potential harmful effects of the chemical restraints;

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      (iii) No participant shall be placed in seclusion;

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      (iv) The agency shall have a written policy that defines the use of restraints, the staff

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members who may authorize their use, and a mechanism for monitoring and controlling their use;

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      (v) All orders for restraint as well as the required frequency of staff observation of the

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participant shall be written; To be free from restraint in accordance with chapter 42-72.11.

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      (9) To have reasonable access to telephone communication;

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      (10) To receive visitors of a participant's choosing at all reasonable hours;

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      (11) To keep and be allowed to spend a reasonable amount of one's own money;

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      (12) To be provided advance written notice explaining the reason(s) why the participant

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is no longer eligible for service from the agency;

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      (13) To religious freedom and practice;

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      (14) To communicate by sealed mail or otherwise with persons of one's choosing;

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      (15) To select and wear one's own clothing and to keep and use one's own personal

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possessions;

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      (16) To have reasonable, prompt access to current newspapers, magazines and radio and

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television programming;

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      (17) To have opportunities for physical exercise and outdoor recreation;

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      (18) (i) To provide informed consent prior to the imposition of any invasive medical

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treatment including any surgical procedure or to have a legal guardian, or in the absence of a legal

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guardian, a relative as defined in this chapter, provide informed consent if the participant is not

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competent to do so. Information upon which a participant shall make necessary treatment and/or

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surgery decisions shall be presented to the participant in a manner consistent with his or her

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learning style and shall include, but not be limited to:

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      (A) The nature and consequences of the procedure(s);

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      (B) The risks, benefits and purpose of the procedure(s); and

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      (C) Alternate procedures available;

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      (ii) The informed consent of a participant or his or her legal guardian or, in the absence

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of a legal guardian, a relative as defined in this chapter, may be withdrawn at any time, with or

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without cause, prior to treatment. The absence of informed consent notwithstanding, a licensed

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and qualified physician may render emergency medical care or treatment to any participant who

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has been injured or who is suffering from an acute illness, disease, or condition if, within a

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reasonable degree of medical certainty, delay in initiation of emergency medical care or treatment

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would endanger the health of the participant;

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      (19) Each participant shall have a central record. The record shall include data pertaining

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to admissions and such other information as may be required under regulations by the

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department;

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      (20) Admissions -- As part of the procedure for the admission of a participant to an

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agency, each participant or applicant, or advocate if the participant or applicant is not competent,

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shall be fully informed, orally and in writing, of all rules, regulations, and policies governing

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participant conduct and responsibilities, including grounds for dismissal, procedures for

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discharge, and all anticipated financial charges, including all costs not covered under federal

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and/or state programs, by other third party payors or by the agency's basic per diem rate. The

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written notice shall include information regarding the participant's or applicant's right to appeal

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the admission or dismissal decisions of the agency;

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      (21) Upon termination of services to or death of a participant, a final accounting shall be

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made of all personal effects and/or money belonging to the participant held by the agency. All

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personal effects and/or money including interest shall be promptly released to the participant or

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his or her heirs;

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      (22) Nothing in this chapter shall preclude intervention in the form of appropriate and

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reasonable restraint should it be necessary to protect individuals from physical injury to

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themselves or others.

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     SECTION 3. Section 42-72-15 of the General Laws in Chapter 42-72 entitled

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"Department of Children, Youth, and Families" is hereby amended to read as follows:

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     42-72-15. Children's bill of rights. -- (a) No child placed or treated under the

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supervision of the department in any public or private facility shall be deprived of any personal

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property or civil rights, except in accordance with due process.

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      (b) Each child placed or treated under the supervision of the department in any public or

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private facility shall receive humane and dignified treatment at all times, with full respect for the

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child's personal dignity and right to privacy, consistent with the child's treatment plan.

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      (c) Each child placed in a secure facility under the supervision of the department shall be

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permitted to communicate with any individual, group, or agency consistent with the child's

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treatment objectives; shall be provided writing materials and postage; and shall be permitted to

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make or receive telephone calls to or from his or her attorneys, guardians ad litem, special

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advocates, or child advocate at any reasonable time.

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      (d) The department shall adopt rules and regulations pursuant to the Administrative

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Procedures Act, title 42, chapter 35, regarding children placed in secure facilities to specify the

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following:

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      (1) When a child may be placed in restraint or seclusion or when force may be used upon

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a child Restraint regulations in accordance with chapter 42-72.11;

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      (2) When the head of a facility may limit the use or receipt of mail by any child and a

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procedure for return of unopened mail; and

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      (3) When the head of a facility may restrict the use of a telephone by any child.

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      (e) A copy of any order placing a child at a secure facility under the supervision of the

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department in restraint or seclusion shall be made a part of the child's permanent clinical record.

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In addition, any special restriction on the use or receipt of mail or telephone calls shall be noted in

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writing, signed by the head of the facility or the facility head's designee, and made a part of the

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child's permanent clinical record.

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      (f) Each child placed or treated in a secure facility under the supervision of the

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department shall be permitted to receive visitors subject to reasonable restriction consistent with

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the child's treatment plan. The head of each facility shall establish visiting hours and inform all

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children and their families and other visitors of these hours. Any special restrictions shall be

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noted in writing, signed by the head of the facility or his or her designee, and made a part of the

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child's permanent clinical record.

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      (g) Each child may receive his or her clergyman, attorney, guardian ad litem, special

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advocate, or child advocate at any reasonable time.

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      (h) No person shall be denied employment, housing, civil service rank, any license or

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permit, including a professional license, or any other civil or legal right, solely because of a

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present or past placement with the department except as otherwise provided by statute.

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      (i) Each child under the supervision of the department shall have the right to counsel,

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and the right to receive visits from physicians and mental health professionals.

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      (j) Each child shall have a right to a hearing pursuant to rules and regulations

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promulgated by the department if the child is involuntarily transferred by the department to any

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facility outside of the state in accordance with the procedure set forth in section 42-72-14.

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      (k) The children's bill of rights shall be posted in a conspicuous place within any secure

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facility for the residential housing of children.

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      (l) Every deliverer of services with whom the department enters into a purchased

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services agreement shall agree, in writing, to observe and post in a conspicuous place, the

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children's bill of rights.

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      (m) Any child aggrieved by a violation of the children's bill of rights may petition the

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family court for appropriate equitable relief. The family court shall have exclusive original

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jurisdiction, notwithstanding any remedy contained in chapter 35 of this title.

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      (n) A child victim or witness shall be afforded the protections of section 12-28-9 under

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the direction of the department of children, youth, and families, and the department shall advise

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the court and the police and the prosecutor on the capacity of the child victim to understand and

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participate in the investigation and in the court proceedings and of the potential effect of the

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proceedings on the child.

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      (o) Every child placed in the care of the department of children, youth, and families shall

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be entitled to a free appropriate education, in accordance with state and federal law. Immediately

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upon the assumption of that care, the department shall provide for the enrollment of each child in

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a school program. During the time that the child shall remain in that care, the department and

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appropriate state and local education agencies shall coordinate their efforts in order to provide for

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the timely initiation and continuation of educational services.

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      (p) No person shall be denied access to available treatment for an alcohol or drug related

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condition, solely because of a present or past placement with the department.

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     SECTION 4. This act shall take effect upon passage.

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LC02524

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RIGHT TO FREEDOM FROM

RESTRAINT ACT

***

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     This act would protect and promote the right of each person who is served by a covered

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facility to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and

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any physical or chemical restraints.

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     This act would take effect upon passage.

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LC02524

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