A N A C T
RELATING TO CHILDREN, YOUTH AND FAMILIES DEPARTMENT
It is enacted by the General Assembly as follows:
SECTION 1. Title 42 of the General Laws entitled "State Affairs and Government" is hereby amended by adding thereto the following chapter:
CHILDREN'S RIGHT TO FREEDOM FROM RESTRAINT ACT
42-72.9-1. Short title. -- This chapter shall be known as the "Children's Right to Freedom from Restraint Act."
42-72.9-2. Fundamental purpose. -- This legislation is enacted to protect and promote the right of each child who is a resident or patient in a covered facility to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints (as defined herein) imposed for purposes of discipline or convenience. Every child who obtains services from a covered facility has a right to be free from both physical and chemical restraints that are not medically necessary or are used as a means of coercion, discipline, convenience or retaliation by service providers.
42-72.9-3. Definitions. -- For the purposes of this chapter:
(a) "Service provider" means any person employed or contracted by a covered facility to provide direct care, residential treatment, education or direct supervision of children.
(b) "Covered facility" means any agency, organization, public or private entity that provides any of the following for children, regardless of the state agency under whose authority its license is established: residential treatment, including in-house educational programming; in-patient or residential psychiatric treatment for mental illness and group or shelter home care pursuant to a licensed granted by the department of children, youth and families. The term "covered facility" does not include the public school system or psychiatric hospitals; or the Rhode Island Training School for Youth.
The Department of Children, Youth and Families will promulgate policies and regulations in accordance with 42-72.9-9 relative to the use of seclusion and restraint at the Rhode Island Training School for Youth on or before January 1, 2001.
(c) "Therapeutic Physical Restraint" means the acceptable use of a staff member's body to immobilize or reduce the free movement of a child/youth's arms, legs, torso, or head, in order to ensure the physical safety of a child/youth or other individual in the facility. The term does not include: (A) briefly holding a person in order to calm or comfort the person; (B) restraint involving the minimum contact necessary to safely escort the person from one area to another.
(d) "Mechanical restraint" means any approved mechanical restriction that immobilizes or reduces the free movement of a child/youth's arms, legs, torso, or head in order to hold a child/youth safely including: (A) medical devices, including, but not limited to, supports prescribed by a health care provider to achieve proper body position or balance; (B) helmets or other protective gear used to protect a person from injuries due to a fall; or (C) helmets, mitts and similar devices used to prevent self injury when the device is part of a documented treatment plan and is the least restrictive means available to prevent such self injury.
(e) "Life threatening physical restraint" means any physical restraint or hold on a child that restricts the flow of air into a person's lungs, whether by chest compression or any other means.
(f) "Chemical restraint" means a medication used to control behavior or restrict the patient's freedom of movement and is not a standard treatment for the child's medical or psychiatric condition.
(g) "Seclusion" means the involuntary confinement of a child/youth in a room in a covered facility, whether alone or with staff supervision, in a manner that prevents the child/youth from leaving. This definition does not pertain to the use of "time out" as an acceptable form of short-term behavioral management nor does it pertain to covered facilities where the terms of seclusion are defined pursuant to particular judicial decrees.
(h) "Time out" means the brief separation of a child/youth from the group not to exceed twenty (20) minutes, designed to de-escalate the child/youth. During the "Time out," a child/youth's freedom of movement is not restricted and the child/youth need not be directly supervised, but must be visually monitored.
42-72.9-4. Use of restraints. -- (a) No service provider may use a life threatening physical restraint on any child at any time. This section shall not be construed as limiting any defense to a criminal prosecution for the use of deadly physical force that may be available in the general laws;
(b) After January 1, 2001, no service provider shall administer a restraint on a child unless trained in accordance with the provisions of this chapter;
(c) No service provider shall administer a physical, mechanical, or chemical restraint on a child, unless the following conditions are met:
(1) A service provider in a covered facility may impose restraints only to prevent immediate or imminent risk of harm to the physical safety of the child, staff, or other individuals in the facility. Restraints shall be removed at the earliest possible time that the child can commit to safety and no longer poses a threat to him/herself or others.
(2) The use of mechanical restraints on children and youth must be administered in strict accordance with policies developed by the service provider and is limited to those covered facilities granted specific authority to use mechanical restraint methods by their respective state licensing authorities after review and approval of their policies. The use of mechanical restraints at the Rhode Island Training School for Youth will be governed exclusively by rules and regulations promulgated by DCYF in accordance with section 42-72.9-9 on or before January 1, 2001.
(3) A physical, mechanical, or chemical restraint may be used only when less restrictive interventions have not succeeded in de-escalating a situation in which the child's and/or other's safety is at risk.
(4) Except in the case of an emergency, any use of restraint on a child in the school program of a covered facility must be in accordance with the child's individual education program.
(5) Any use of restraint on a child must be in accordance with safe and appropriate restraining techniques and be administered only by service providers that have both initial and ongoing education and training in the proper and safe use of restraints as established by nationally recognized training programs.
(6) The use of chemical restraints on children and youth must be administered in strict accordance with policies developed by the service provider and is limited to those covered facilities granted specific authority to use chemical restraints by their respective state licensing authorities after review and approval of their policies. All chemical restraints must be ordered in writing by a physician and administered in accordance with the standards adopted by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
(7) The condition of the child in a restraint must be continually assessed, monitored and reevaluated and the restriction of patient child movement or activity by restraint must be ended at the earliest possible time, considering the physical safety of the child being restrained and other individuals in the facility. For the purposes of this section, "monitor" means (i) direct observation, or (ii) observation by way of video monitoring within physical proximity sufficient to provide aid as may be needed.
(8) Restraints may not be written as a standing order or on "as needed" (PRN) basis.
(9) All restraints must be recorded by the individuals administering the restraints and reviewed by supervisory personnel as soon as practicable but no later than forty-eight (48) hours after the restraint was administered.
42-72.9-5. Seclusion. -- (A) No service provider may cause the involuntary placement of a child in seclusion except as an emergency intervention to prevent immediate or imminent risk of injury to the physical safety of the child, staff, or other individuals in the facility and may not be used for discipline, convenience or as a substitute for a less restrictive alternative. The following requirements must be observed for any child placed in seclusion:
(1) The condition of the child in seclusion must be continually assessed, monitored and reevaluated and the seclusion must be ended at the earliest possible time, considering the physical safety of the child being secluded and other individuals in the facility. For the purposes of this section, "monitor" means (i) direct observation, or (ii) observation by way of video monitoring within physical proximity sufficient to provide aid as may be needed.
(2) The simultaneous use of seclusion and mechanical or chemical restraint is prohibited.
(3) Nothing in this section shall be construed to limit the use of "time out" as a method of managing behavior within a covered facility.
42-72.9-6. Recording. -- (a) Any use of physical, mechanical, or chemical restraint or seclusion on a child must be documented in the child's medical, educational, treatment or case record maintained by the covered facility. The documentation shall include:
(1) in the case of emergency use, the nature of the emergency and what other steps, including attempts at verbal de-escalation, were taken to prevent the emergency from arising if there were indications that such an emergency was likely to arise; and
(2) a detailed description of the nature of the restraint, its duration and its effect on the child's established medical, educational or treatment plan.
(b) Each covered facility shall (1) maintain a weekly log of the use of physical, mechanical, or chemical restraint or seclusion on children in their care and the nature of the emergency that necessitated its use, and (2) include such information in an annual compilation on its use of such restraint and seclusion. The director of the state agency that has jurisdiction or supervisory control over the covered facility shall issue regulations regarding the specific content of the annual compilation and review the annual compilation prior to renewing a license for or a contract with such covered facility. The annual compilation of use of restraints and seclusion by each covered facility shall be a public record.
(c) If the use of such restraint or seclusion results in serious physical injury or death to the child, the covered facility shall report the incident immediately to the Department of Children, Youth and Families as defined by law and to the director of the state agency that has jurisdiction or supervisory control over the covered facility. The director shall report any incidence of serious injury or death to the child advocate. The term "serious injury" shall be defined by DCYF in the rules and regulations promulgated pursuant to section 42-72.9-9.
42-72.9-7. Training and policies. -- (a) Each covered facility shall: (1) develop policies and procedures that establish monitoring, documentation, reporting and internal review of the use of restraint and seclusion on children;
(2) require training of all service providers in the use of restraint and seclusion on children. Such training shall include but not be limited to verbal defusing and de-escalation; prevention strategies; types of physical restraint; the differences between life threatening physical restraint and other varying levels of physical restraint; monitoring to prevent harm to a child physically restrained or in seclusion and recording and reporting procedures on the use of restraints and seclusion.
(3) make the policies and procedures required under subsection (a)(1) available to the director of the state agency that has jurisdiction or supervisory control over the covered facility.
(b) DCYF shall be responsible for ensuring compliance with initial and refresher restraint training and for funding said training in accordance with its contract or rate provisions with residential providers.
42-72.9-8. Penalties. -- (a) Any covered facility that does not comply with the provisions of this chapter shall be subject to licensing action, including but not limited to license revocation, by the agency or department of state government that has jurisdiction or supervisory control over the covered facility.
(b) Any service provider who willfully and intentionally violates the provisions of this chapter and by reason of such violation inflicts physical injury upon a child, shall upon conviction thereof be fined a sum not exceeding five hundred dollars ($500) and/or imprisoned for a term not exceeding six (6) months. However, if the service provider is exonerated, all costs incurred in defense of these charges shall be paid by the covered facility.
(c) Nothing contained herein shall be construed to limit or restrict any criminal or civil action available to an appropriate party under applicable state law.
42-72.9-9. Rules and regulations. -- DCYF and MHRH shall promulgate rules and regulations pursuant to the administrative procedures act, title 42, chapter 35, on or before January 1, 2001, to implement the intent of this statute.
SECTION 2. This act shall take effect upon passage.