2013 -- S 1012

=======

LC02607

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

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

RESTRAINT ACT

     Introduced By: Senators Ottiano, Lynch, DaPonte, DiPalma, and Felag

     Date Introduced: June 20, 2013

     Referred To: Senate Health & Human Services

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Chapter 42-72.9 of the General Laws entitled "Children's Right to Freedom

1-2

From Restraint Act" is hereby repealed in its entirety.

1-3

     CHAPTER 42-72.9

1-4

Children's Right to Freedom From Restraint Act

1-5

     42-72.9-1. Short title. -- This chapter shall be known as the "Children's Right to Freedom

1-6

from Restraint Act."

1-7

     42-72.9-2. Fundamental purpose. -- This chapter is enacted to protect and promote the

1-8

right of each child who is a resident or patient in a covered facility to be free from physical or

1-9

mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints

1-10

(as defined in this chapter) imposed for purposes of discipline or convenience. Every child who

1-11

obtains services from a covered facility has a right to be free from both physical and chemical

1-12

restraints that are not medically necessary or are used as a means of coercion, discipline,

1-13

convenience, or retaliation by service providers.

1-14

     42-72.9-3. Definitions. -- For the purposes of this chapter:

1-15

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

1-16

provide direct care, residential treatment, education, or direct supervision of children.

1-17

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

1-18

provides any of the following for children, regardless of the state agency under whose authority

1-19

its license is established: residential treatment, including in-house educational programming; in-

2-1

patient or residential psychiatric treatment for mental illness; and group or shelter home care

2-2

pursuant to a licensed granted by the department of children, youth, and families. The term

2-3

"covered facility" does not include the public school system or psychiatric hospitals, or the Rhode

2-4

Island training school for youth. The department of children, youth, and families will promulgate

2-5

policies and regulations in accordance with section 42-72.9-9 relative to the use of seclusion and

2-6

restraint at the Rhode Island training school for youth on or before January 1, 2001.

2-7

      (3) "Therapeutic physical restraint" means the acceptable use of a staff member's body to

2-8

immobilize or reduce the free movement of a child/youth's arms, legs, torso, or head, in order to

2-9

ensure the physical safety of a child/youth or other individual in the facility. The term does not

2-10

include: (i) briefly holding a person in order to calm or comfort the person; (ii) restraint involving

2-11

the minimum contact necessary to safely escort the person from one area to another.

2-12

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

2-13

or reduces the free movement of a child/youth's arms, legs, torso, or head in order to hold a

2-14

child/youth safely including: (i) medical devices, including, but not limited to, supports

2-15

prescribed by a health care provider to achieve proper body position or balance; (ii) helmets or

2-16

other protective gear used to protect a person from injuries due to a fall; or (iii) helmets, mitts and

2-17

similar devices used to prevent self-injury when the device is part of a documented treatment plan

2-18

and is the least restrictive means available to prevent the self-injury.

2-19

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

2-20

that restricts the flow of air into a person's lungs, whether by chest compression or any other

2-21

means.

2-22

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

2-23

patient's freedom of movement and is not a standard treatment for the child's medical or

2-24

psychiatric condition.

2-25

      (7) "Seclusion" means the involuntary confinement of a child/youth in a room in a

2-26

covered facility, whether alone or with staff supervision, in a manner that prevents the child/youth

2-27

from leaving. This definition does not pertain to the use of "time out" as an acceptable form of

2-28

short-term behavioral management nor does it pertain to covered facilities where the terms of

2-29

seclusion are defined pursuant to particular judicial decrees.

2-30

      (8) "Time out" means the brief separation of a child/youth from the group not to exceed

2-31

twenty (20) minutes, designed to de-escalate the child/youth. During the "Time out," a

2-32

child/youth's freedom of movement is not restricted and the child/youth need not be directly

2-33

supervised, but must be visually monitored.

3-34

     42-72.9-4. Use of restraints. -- (a) No service provider may use a life threatening

3-35

physical restraint on any child at any time. This section shall not be construed as limiting any

3-36

defense to a criminal prosecution for the use of deadly physical force that may be available in the

3-37

general laws.

3-38

      (b) After January 1, 2001, no service provider shall administer a restraint on a child

3-39

unless trained in accordance with the provisions of this chapter.

3-40

      (c) No service provider shall administer a physical, mechanical, or chemical restraint on

3-41

a child, unless the following conditions are met:

3-42

      (1) A service provider in a covered facility may impose restraints only to prevent

3-43

immediate or imminent risk of harm to the physical safety of the child, staff, or other individuals

3-44

in the facility. Restraints shall be removed at the earliest possible time that the child can commit

3-45

to safety and no longer poses a threat to himself or herself or others;

3-46

      (2) The use of mechanical restraints on children and youth must be administered in strict

3-47

accordance with policies developed by the service provider and is limited to those covered

3-48

facilities granted specific authority to use mechanical restraint methods by their respective state

3-49

licensing authorities after review and approval of their policies. The use of mechanical restraints

3-50

at the Rhode Island training school for youth will be governed exclusively by rules and

3-51

regulations promulgated by DCYF in accordance with section 42-72.9-9 on or before January 1,

3-52

2001;

3-53

      (3) A physical, mechanical, or chemical restraint may be used only when less restrictive

3-54

interventions have not succeeded in de-escalating a situation in which the child's and/or other's

3-55

safety is at risk;

3-56

      (4) Except in the case of an emergency, any use of restraint on a child in the school

3-57

program of a covered facility must be in accordance with the child's individual education

3-58

program;

3-59

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

3-60

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

3-61

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

3-62

recognized training programs;

3-63

      (6) The use of chemical restraints on children and youth must be administered in strict

3-64

accordance with policies developed by the service provider and is limited to those covered

3-65

facilities granted specific authority to use chemical restraints by their respective state licensing

3-66

authorities after review and approval of their policies. All chemical restraints must be ordered, in

3-67

writing, by a physician and administered in accordance with the standards adopted by the joint

3-68

commission on accreditation of healthcare organizations (JCAHO);

4-1

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

4-2

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

4-3

the earliest possible time, considering the physical safety of the child being restrained and other

4-4

individuals in the facility. For the purposes of this section, "monitor" means (i) direct observation,

4-5

or (ii) observation by way of video monitoring within physical proximity sufficient to provide aid

4-6

as may be needed;

4-7

      (8) Restraints may not be written as a standing order or on "as needed" (PRN) basis; and

4-8

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

4-9

reviewed by supervisory personnel as soon as practicable but no later than forty-eight (48) hours

4-10

after the restraint was administered.

4-11

     42-72.9-5. Seclusion. -- (a) No service provider may cause the involuntary placement of

4-12

a child in seclusion except as an emergency intervention to prevent immediate or imminent risk

4-13

of injury to the physical safety of the child, staff, or other individuals in the facility and may not

4-14

be used for discipline, convenience or as a substitute for a less restrictive alternative. The

4-15

following requirements must be observed for any child placed in seclusion:

4-16

      (1) The condition of the child in seclusion must be continually assessed, monitored, and

4-17

reevaluated and the seclusion must be ended at the earliest possible time, considering the physical

4-18

safety of the child being secluded and other individuals in the facility. For the purposes of this

4-19

section, "monitor" means (i) direct observation, or (ii) observation by way of video monitoring

4-20

within physical proximity sufficient to provide aid as may be needed; and

4-21

      (2) The simultaneous use of seclusion and mechanical or chemical restraint is prohibited.

4-22

      (b) Nothing in this section shall be construed to limit the use of "time out" as a method

4-23

of managing behavior within a covered facility.

4-24

     42-72.9-6. Recording. -- (a) Any use of physical, mechanical, or chemical restraint or

4-25

seclusion on a child must be documented in the child's medical, educational, treatment or case

4-26

record maintained by the covered facility. The documentation shall include:

4-27

      (1) In the case of emergency use, the nature of the emergency and what other steps,

4-28

including attempts at verbal de-escalation, were taken to prevent the emergency from arising if

4-29

there were indications that such an emergency was likely to arise; and

4-30

      (2) A detailed description of the nature of the restraint, its duration and its effect on the

4-31

child's established medical, educational or treatment plan.

4-32

      (b) Each covered facility shall: (1) maintain a weekly log of the use of physical,

4-33

mechanical, or chemical restraint or seclusion on children in their care and the nature of the

4-34

emergency that necessitated its use, and (2) include that information in an annual compilation on

5-1

its use of restraint and seclusion. The director of the state agency that has jurisdiction or

5-2

supervisory control over the covered facility shall issue regulations regarding the specific content

5-3

of the annual compilation and review the annual compilation prior to renewing a license for or a

5-4

contract with the covered facility. The annual compilation of use of restraints and seclusion by

5-5

each covered facility is a public record.

5-6

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

5-7

child, the covered facility shall report the incident immediately to the department of children,

5-8

youth, and families as defined by law and to the director of the state agency that has jurisdiction

5-9

or supervisory control over the covered facility. The director shall report any incidence of serious

5-10

injury or death to the child advocate. The term "serious injury" shall be defined by DCYF in the

5-11

rules and regulations promulgated pursuant to section 42-72.9-9.

5-12

     42-72.9-7. Training and policies. -- (a) Each covered facility shall:

5-13

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

5-14

and internal review of the use of restraint and seclusion on children;

5-15

      (2) Require training of all service providers in the use of restraint and seclusion on

5-16

children. The training shall include, but not be limited to, verbal defusing and de-escalation;

5-17

prevention strategies; types of physical restraint; the differences between life threatening physical

5-18

restraint and other varying levels of physical restraint; monitoring to prevent harm to a child

5-19

physically restrained or in seclusion; and recording and reporting procedures on the use of

5-20

restraints and seclusion; and

5-21

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

5-22

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

5-23

      (b) DCYF is responsible for ensuring compliance with initial and refresher restraint

5-24

training and for funding the training in accordance with its contract or rate provisions with

5-25

residential providers.

5-26

     42-72.9-8. Penalties. -- (a) Any covered facility that does not comply with the provisions

5-27

of this chapter is subject to licensing action, including, but not limited to, license revocation, by

5-28

the agency or department of state government that has jurisdiction or supervisory control over the

5-29

covered facility.

5-30

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

5-31

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

5-32

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

5-33

term not exceeding six (6) months. However, if the service provider is exonerated, all costs

5-34

incurred in defense of these charges shall be paid by the covered facility.

6-1

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

6-2

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

6-3

     42-72.9-9. Rules and regulations. -- DCYF and MHRH shall promulgate rules and

6-4

regulations pursuant to the Administrative Procedures Act, title 42, chapter 35, on or before

6-5

January 1, 2001, to implement the intent of this chapter.

6-6

     SECTION 2. Title 42 of the General Laws entitled "STATE AFFAIRS AND

6-7

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

6-8

     CHAPTER 72.11

6-9

RIGHT TO FREEDOM FROM RESTRAINT ACT

6-10

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

6-11

Freedom from Restraint Act."

6-12

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

6-13

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

6-14

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

6-15

this chapter).

6-16

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

6-17

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

6-18

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

6-19

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

6-20

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

6-21

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

6-22

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

6-23

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

6-24

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

6-25

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

6-26

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

6-27

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

6-28

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

6-29

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

6-30

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

6-31

provider to achieve proper body position or balance;

6-32

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

6-33

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

6-34

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

7-1

injury.

7-2

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

7-3

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

7-4

person's physical or mental health.

7-5

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

7-6

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

7-7

psychiatric condition.

7-8

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

7-9

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

7-10

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

7-11

management.

7-12

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

7-13

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

7-14

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

7-15

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

7-16

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

7-17

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

7-18

unless trained in accordance with the provisions of this chapter.

7-19

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

7-20

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

7-21

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

7-22

utilized prior to any physical restraint.

7-23

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

7-24

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

7-25

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

7-26

chapter.

7-27

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

7-28

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

7-29

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

7-30

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

7-31

     (1) Direct observation; or

7-32

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

7-33

provide aid as may be needed;

8-34

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

8-35

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

8-36

and

8-37

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

8-38

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

8-39

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

8-40

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

8-41

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

8-42

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

8-43

person in seclusion.

8-44

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

8-45

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

8-46

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

8-47

information must be included:

8-48

     (1) The name of the person restrained;

8-49

     (2) The name of the covered facility;

8-50

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

8-51

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

8-52

     (5) The date and time of the restraint;

8-53

     (6) The length of time of the restraint;

8-54

     (7) The location of the restraint;

8-55

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

8-56

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

8-57

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

8-58

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

8-59

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

8-60

     (12) The outcome of the debriefing.

8-61

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

8-62

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

8-63

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

8-64

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

8-65

advocate.

8-66

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

8-67

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

8-68

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

9-1

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

9-2

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

9-3

     (i) Leadership towards organizational change;

9-4

     (ii) Use of data to inform practice;

9-5

     (iii) Workforce development;

9-6

     (iv) Use of prevention tools;

9-7

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

9-8

     (vi) Debriefing techniques and outcomes.

9-9

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

9-10

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

9-11

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

9-12

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

9-13

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

9-14

supervisory control over the covered facility.

9-15

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

9-16

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

9-17

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

9-18

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

9-19

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

9-20

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

9-21

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

9-22

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

9-23

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

9-24

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

9-25

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

9-26

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

9-27

the intent of this chapter.

9-28

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

9-29

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

9-30

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

9-31

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

9-32

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

9-33

supportive environment;

10-34

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

10-35

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

10-36

interests in the most integrated community setting;

10-37

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

10-38

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

10-39

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

10-40

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

10-41

individualized plan;

10-42

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

10-43

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

10-44

participant is not competent to do so;

10-45

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

10-46

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

10-47

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

10-48

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

10-49

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

10-50

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

10-51

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

10-52

participant's record how such consent was obtained;

10-53

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

10-54

procedure delineated in section 40.1-26-5;

10-55

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

10-56

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

10-57

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

10-58

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

10-59

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

10-60

following conditions:

10-61

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

10-62

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

10-63

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

10-64

during the time that a medical condition exists;

10-65

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

10-66

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

10-67

clearly outweigh the potential harmful effects of the chemical restraints;

11-68

      (iii) No participant shall be placed in seclusion;

11-69

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

11-70

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

11-71

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

11-72

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

11-73

      (9) To have reasonable access to telephone communication;

11-74

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

11-75

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

11-76

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

11-77

is no longer eligible for service from the agency;

11-78

      (13) To religious freedom and practice;

11-79

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

11-80

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

11-81

possessions;

11-82

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

11-83

television programming;

11-84

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

11-85

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

11-86

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

11-87

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

11-88

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

11-89

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

11-90

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

11-91

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

11-92

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

11-93

      (C) Alternate procedures available;

11-94

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

11-95

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

11-96

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

11-97

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

11-98

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

11-99

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

11-100

would endanger the health of the participant;

11-101

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

11-102

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

12-1

department;

12-2

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

12-3

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

12-4

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

12-5

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

12-6

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

12-7

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

12-8

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

12-9

the admission or dismissal decisions of the agency;

12-10

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

12-11

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

12-12

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

12-13

his or her heirs;

12-14

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

12-15

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

12-16

themselves or others.

12-17

     SECTION 4. Section 42-72-15 of the General Laws in Chapter 42-72 entitled

12-18

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

12-19

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

12-20

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

12-21

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

12-22

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

12-23

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

12-24

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

12-25

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

12-26

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

12-27

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

12-28

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

12-29

advocates, or child advocate at any reasonable time.

12-30

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

12-31

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

12-32

following:

12-33

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

12-34

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

13-1

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

13-2

procedure for return of unopened mail; and

13-3

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

13-4

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

13-5

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

13-6

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

13-7

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

13-8

child's permanent clinical record.

13-9

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

13-10

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

13-11

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

13-12

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

13-13

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

13-14

child's permanent clinical record.

13-15

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

13-16

advocate, or child advocate at any reasonable time.

13-17

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

13-18

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

13-19

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

13-20

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

13-21

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

13-22

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

13-23

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

13-24

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

13-25

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

13-26

facility for the residential housing of children.

13-27

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

13-28

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

13-29

children's bill of rights.

13-30

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

13-31

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

13-32

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

13-33

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

13-34

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

14-1

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

14-2

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

14-3

proceedings on the child.

14-4

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

14-5

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

14-6

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

14-7

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

14-8

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

14-9

the timely initiation and continuation of educational services.

14-10

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

14-11

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

14-12

     SECTION 5. This act shall take effect upon passage.

=======

LC02607

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

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

RESTRAINT ACT

***

15-1

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

15-2

facility, as defined in this act, to be free from physical or mental abuse, corporal punishment,

15-3

involuntary seclusion, and any physical or chemical restraints.

15-4

     This act would take effect upon passage.

=======

LC02607

=======