September 15, 2009, Introduced by Reps. Spade, Gonzales, Polidori, Kurtz, Neumann, Leland and Kennedy and referred to the Committee on Families and Children's Services.
A bill to amend 1973 PA 116, entitled
"An act to provide for the protection of children through the
licensing and regulation of child care organizations; to provide
for the establishment of standards of care for child care
organizations; to prescribe powers and duties of certain
departments of this state and adoption facilitators; to provide
penalties; and to repeal acts and parts of acts,"
by amending sections 2b, 2c, 2d, and 2e (MCL 722.112b, 722.112c,
722.112d, and 722.112e), section 2b as amended by 2007 PA 217 and
sections 2c, 2d, and 2e as added by 2004 PA 531.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2b. (1) As used in this section and sections 2c, 2d, and
2e, unless the context requires otherwise:
(a) "Adaptive device" means a mechanical device incorporated
in the individual plan of services that is intended to provide
anatomical support or to assist the minor child with adaptive
skills.
(b) "Chemical restraint" means a drug that meets all of the
following criteria:
(i) Is administered to manage a minor child's behavior in a way
that reduces the safety risk to the minor child or others.
(ii) Has the temporary effect of restricting the minor child's
freedom of movement.
(iii) Is not a standard treatment for the minor child's medical
or psychiatric condition.
(c) "Emergency safety intervention" means use of personal
restraint or seclusion as an immediate response to an emergency
safety situation.
(d) "Emergency safety situation" means the onset of an
unanticipated, severely aggressive, or destructive behavior that
places the minor child or others at serious threat of violence or
injury if no intervention occurs and that calls for an emergency
safety intervention.
(e) "Individual plan of services" means that term as defined
in section 100b of the mental health code, 1974 PA 258, MCL
330.1100b.
(f) "Licensed practitioner" means an individual who has been
trained in the use of personal restraint and seclusion, who is
knowledgeable of the risks inherent in the implementation of
personal restraint and seclusion, and who is 1 of the following:
(i) A physician licensed under article 15 of the public health
code, 1978 PA 368, MCL 333.16101 to 333.18838.
(ii) An individual who has been issued a specialty
certification as a nurse practitioner under article 15 of the
public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(iii) A physician's assistant licensed under article 15 of the
public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(iv) A registered nurse licensed under article 15 of the public
health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(v) A psychologist and a limited licensed psychologist
licensed under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(vi) A counselor and a limited licensed counselor licensed
under article 15 of the public health code, 1978 PA 368, MCL
333.16101 to 333.18838.
(vii) A licensed master's social worker and a limited licensed
social worker licensed under article 15 of the public health code,
1978 PA 368, MCL 333.16101 to 333.18838.
(g) "Mechanical restraint" means a device attached or adjacent
to the minor child's body that he or she cannot easily remove and
that restricts freedom of movement or normal access to his or her
body. Mechanical restraint does not include the use of a protective
or adaptive device or a device primarily intended to provide
anatomical support. Mechanical restraint does not include use of a
mechanical device to ensure security precautions appropriate to the
condition and circumstances of a minor child placed in the child
caring institution as a result of an order of the family division
of circuit court under section 2(a) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2.
(h) "Personal restraint" means the application of physical
force without the use of a device, for the purpose of restraining
the free movement of a minor child's body. Personal restraint does
not include:
(i) The use of a protective or adaptive device.
(ii) Briefly holding a minor child without undue force in order
to calm or comfort him or her.
(iii) Holding a minor child's hand, wrist, shoulder, or arm to
safely escort him or her from 1 area to another.
(iv) The use of a protective or adaptive device or a device
primarily intended to provide anatomical support.
(i) "Protective device" means an individually fabricated
mechanical device or physical barrier, the use of which is
incorporated in the individualized written plan of service. The use
of a protective device is intended to prevent the minor child from
causing serious self-injury associated with documented, frequent,
and unavoidable hazardous events.
(j) "Seclusion" means the involuntary placement of a minor
child in a room alone, where the minor child is physically
prevented
from exiting, by any means, including the physical
presence of a staff person if the sole purpose of that staff
person's presence is to prevent the minor child from exiting the
room. Seclusion does not include the use of a sleeping room during
regular sleeping hours to ensure security precautions appropriate
to the condition and circumstances of a minor child placed in the
child caring institution as a result of an order of the family
division of circuit court under section 2(a) and (b) of chapter
XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2, if the
minor child's individual case treatment plan indicates that the
security precautions would be in the minor child's best interest.
(k) "Serious injury" means any significant impairment of the
physical condition of the minor child as determined by qualified
medical personnel that results from an emergency safety
intervention. This includes, but is not limited to, burns,
lacerations, bone fractures, substantial hematoma, and injuries to
internal organs, whether self-inflicted or inflicted by someone
else.
(2) The provisions of this section and sections 2c, 2d, and 2e
only apply to a child caring institution that contracts with or
receives payment from a community mental health services program or
prepaid inpatient health plan for the care, treatment, maintenance,
and supervision of a minor child in that child caring institution.
Sec. 2c. (1) If a child caring institution contracts with and
receives payment from a community mental health services program or
prepaid inpatient health plan for the care, treatment, maintenance,
and supervision of a minor child in a child caring institution, the
child caring institution may place a minor child in personal
restraint or seclusion only as provided in this section and
sections 2d and 2e but shall not use mechanical restraint except to
transport to or from court or hospitalization or chemical restraint
under any circumstances.
(2)
Not later than 180 days after the effective date of the
amendatory
act that added this section, a A
child caring
institution shall require its staff to have ongoing education,
training, and demonstrated knowledge of all of the following:
(a) Techniques to identify minor children's behaviors, events,
and environmental factors that may trigger emergency safety
situations.
(b) The use of nonphysical intervention skills, such as de-
escalation, mediation conflict resolution, active listening, and
verbal and observational methods to prevent emergency safety
situations.
(c) The safe use of personal restraint or seclusion, including
the ability to recognize and respond to signs of physical distress
in minor children who are in personal restraint or seclusion or who
are being placed in personal restraint or seclusion.
(3) A child caring institution's staff shall be trained in the
use of personal restraint and seclusion, shall be knowledgeable of
the risks inherent in the implementation of personal restraint and
seclusion, and shall demonstrate competency regarding personal
restraint or seclusion before participating in the implementation
of personal restraint or seclusion. A child caring institution's
staff shall demonstrate their competencies in these areas on a
semiannual basis. The state agency licensing child caring
institutions shall review and determine the acceptability of the
child caring institutions' staff education, training, knowledge,
and competency requirements required by this subsection and the
training and knowledge required of a licensed practitioner in the
use of personal restraint and seclusion.
Sec. 2d. (1) Personal restraint or seclusion shall not be
imposed as a means of coercion, discipline, convenience, or
retaliation by a child caring institution's staff.
(2) An order for personal restraint or seclusion shall not be
written as a standing order or on an as-needed basis.
(3) Personal restraint or seclusion must not result in harm or
serious injury to the minor child and shall be used only to ensure
the minor child's safety or the safety of others during an
emergency safety situation. Personal restraint or seclusion shall
only be used until the emergency safety situation has ceased and
the minor child's safety and the safety of others can be ensured
even
if the an order for personal restraint or seclusion has not
expired. Personal restraint and seclusion of a minor child shall
not be used simultaneously.
(4) Personal restraint or seclusion shall be performed in a
manner that is safe, appropriate, and proportionate to the severity
of the minor child's behavior, chronological and developmental age,
size, gender, physical condition, medical condition, psychiatric
condition, and personal history, including any history of physical
or sexual abuse.
(5) Except as provided in subsection (6), at the time a minor
child is admitted to a child caring institution, the child caring
institution shall do all of the following:
(a) Inform the minor child and his or her parent or legal
guardian of the provider's policy regarding the use of personal
restraint or seclusion during an emergency safety situation that
may occur while the minor child is under the care of the child
caring institution.
(b) Communicate the provider's personal restraint and
seclusion policy in a language that the minor child or his or her
parent or legal guardian will understand, including American sign
language, if appropriate. The provider shall procure an interpreter
or translator, if necessary to fulfill the requirement of this
subdivision.
(c) Obtain a written acknowledgment from the minor child's
parent or legal guardian that he or she has been informed of the
provider's policy on the use of personal restraint and seclusion
during an emergency safety situation. The child caring
institution's staff shall file the acknowledgment in the minor
child's records.
(d) Provide a copy of the policy to the minor child's parent
or legal guardian.
(6) The child caring institution is not required to inform,
communicate, and obtain the written acknowledgment from a minor
child's parent or legal guardian as specified in subsection (5) if
the minor child is within the care and supervision of the child
caring institution as a result of an order of commitment of the
family division of circuit court to a state institution, state
agency, or otherwise, and has been adjudicated to be a dependent,
neglected, or delinquent under chapter XIIA of the probate code of
1939, 1939 PA 288, MCL 712A.1 to 712A.32, if the minor child's
individual case treatment plan indicates that notice would not be
in the minor child's best interest.
(7) An order for personal restraint or seclusion shall only be
written by a licensed practitioner.
(8) A licensed practitioner shall order the least restrictive
emergency safety intervention measure that is most likely to be
effective in resolving the emergency safety situation based on
consultation with staff. Consideration of less restrictive
emergency safety intervention measures shall be documented in the
minor child's record.
(9) If the order for personal restraint or seclusion is
verbal, it must be received by a child caring institution staff
member who is 1 of the following:
(a) A licensed practitioner.
(b)
A social services service supervisor as described in R
400.4118 of the Michigan administrative code.
(c) A supervisor of direct care workers as described in R
400.4120 of the Michigan administrative code.
(d) A practical nurse licensed under article 15 of the public
health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(10)
A verbal order must be received while personal restraint
or
seclusion is being initiated by child caring institution staff
or
immediately after the emergency safety situation begins for
personal restraint that is more than 15 minutes in duration or
seclusion that is more than 30 minutes in duration. The licensed
practitioner shall be available to staff for consultation, at least
by telephone, throughout the period of ordered personal restraint
or seclusion. The licensed practitioner shall verify the verbal
order in signed written form in the minor child's record within 72
clock hours after issuing the order.
(11) An order for personal restraint or seclusion shall meet
both of the following criteria:
(a) Be limited to no longer than the duration of the emergency
safety situation.
(b) Not exceed 4 hours for a minor child 18 years of age or
older; 2 hours for a minor child 9 to 17 years of age; or 1 hour
for a minor child under 9 years of age.
(12) If more than 2 orders for personal restraint or seclusion
are ordered for a minor child within a 24-hour period, the director
of the child caring institution or his or her designated management
staff shall be notified to determine whether additional measures
should be taken to facilitate discontinuation of personal restraint
or seclusion.
(13) If personal restraint continues for less than 15 minutes
or seclusion continues for less than 30 minutes from the onset of
the emergency safety intervention, the child caring institution
staff qualified to receive a verbal order for personal restraint or
seclusion, in consultation with the licensed practitioner, shall
evaluate the minor child's psychological well-being immediately
after the minor child is removed from seclusion or personal
restraint. Staff shall also evaluate the minor child's physical
well-being or determine if an evaluation is needed by a licensed
practitioner authorized to conduct a face-to-face assessment under
subsection (14).
(14) A face-to-face assessment shall be conducted if the
personal restraint continues for 15 minutes or more from the onset
of the emergency safety intervention or if seclusion continues for
30 minutes or more from the onset of the emergency safety
intervention. This face-to-face assessment shall be conducted by a
licensed practitioner who is 1 of the following:
(a) A physician licensed under article 15 of the public health
code, 1978 PA 368, MCL 333.16101 to 333.18838.
(b)
An individual who has been issued a speciality specialty
certification as a nurse practitioner under article 15 of the
public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(c) A physician's assistant licensed under article 15 of the
public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(d) A registered nurse licensed under article 15 of the public
health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(e) An emergency medical technician licensed under part 209 of
the public health code, 1978 PA 368, MCL 333.20901 to 333.20979.
(15) The face-to-face assessment shall be conducted within 1
hour of the onset of the emergency safety intervention and
immediately after the minor child is removed from personal
restraint or seclusion. The face-to-face assessment of the physical
and psychological well-being of the minor child shall include, but
is not limited to, all of the following:
(a) The minor child's physical and psychological status.
(b) The minor child's behavior.
(c) The appropriateness of the intervention measures.
(d) Any complications resulting from the intervention.
Sec. 2e. (1) A minor child shall be released from personal
restraint or seclusion whenever the circumstance that justified the
use of personal restraint or seclusion no longer exists.
(2) Each instance of personal restraint or seclusion requires
full justification for its use, and the results of the evaluation
immediately following the use of personal restraint or seclusion
shall be placed in the minor child's record.
(3) Each order for personal restraint or seclusion shall
include all of the following:
(a) The name of the licensed practitioner ordering personal
restraint or seclusion.
(b) The date and time the order was obtained.
(c) The personal restraint or seclusion ordered, including the
length of time for which the licensed practitioner ordered its use.
(4) The child caring institution staff shall document the use
of
the personal restraint or seclusion in the minor child's record.
That documentation shall be completed by the end of the shift in
which the personal restraint or seclusion occurred. If the personal
restraint or seclusion does not end during the shift in which it
began, documentation shall be completed during the shift in which
the personal restraint or seclusion ends. Documentation shall
include all of the following:
(a)
Each order for instance of
personal restraint or
seclusion.
(b) The time the personal restraint or seclusion actually
began and ended.
(c) The time and results of the 1-hour assessment.
(d) The emergency safety situation that required the resident
to be personally restrained or secluded.
(e) The name of the staff involved in the personal restraint
or seclusion.
(f) The specific location of the personal restraint or
seclusion.
(5) The child caring institution staff trained in the use of
personal restraint shall continually assess and monitor the
physical and psychological well-being of the minor child and the
safe use of personal restraint throughout the duration of its
implementation.
(6) The child caring institution staff trained in the use of
seclusion
shall be physically present in or immediately and in the
immediate vicinity, outside the seclusion room, continually
assessing, monitoring, and evaluating the physical and
psychological well-being of the minor. Video monitoring shall not
be exclusively used to meet this requirement.
(7) The child caring institution staff shall ensure that
documentation of staff monitoring and observation is entered into
the minor child's record.
(8) If the emergency safety intervention continues beyond the
time
limit of the an order for use of personal restraint or
seclusion, child caring institution staff authorized to receive
verbal orders for personal restraint or seclusion shall immediately
contact the licensed practitioner to receive further instructions.
(9) The child caring institution staff shall notify the minor
child's parent or legal guardian and the appropriate state or local
government agency that has responsibility for the minor child if
the minor child is under the supervision of the child caring
institution as a result of an order of commitment by the family
division of circuit court to a state institution or otherwise as
soon as possible after the initiation of personal restraint or
seclusion. This notification shall be documented in the minor
child's record, including the date and time of the notification,
the name of the staff person providing the notification, and the
name of the person to whom notification of the incident was
reported. The child caring institution is not required to notify
the parent or legal guardian as provided in this subsection if the
minor child is within the care and supervision of the child caring
institution as a result of an order of commitment of the family
division of circuit court to a state institution, state agency, or
otherwise, and has been adjudged to be dependent, neglected, or
delinquent under chapter XIIA of the probate code of 1939, 1939 PA
288, MCL 712A.1 to 712A.32, if the minor child's individual case
treatment plan indicates that the notice would not be in the minor
child's best interest.
(10) Within 24 hours after the use of personal restraint or
seclusion, child caring institution staff involved in the emergency
safety intervention and the minor child shall have a face-to-face
debriefing
session. The debriefing shall include all staff involved
in the seclusion or personal restraint except if the presence of a
particular staff person may jeopardize the well-being of the minor
child. Other staff members and the minor child's parent or legal
guardian may participate in the debriefing if it is considered
appropriate by the child caring institution.
(11) The child caring institution shall conduct a debriefing
in a language that is understood by the minor child. The debriefing
shall provide both the minor child and the staff opportunity to
discuss the circumstances resulting in the use of personal
restraint or seclusion and strategies to be used by staff, the
minor child, or others that could prevent the future use of
personal restraint or seclusion.
(12) Within 24 hours after the use of personal restraint or
seclusion,
all child caring institution staff involved in the
emergency safety intervention, and appropriate supervisory and
administrative staff, shall conduct a debriefing session that
includes, at a minimum, all of the following:
(a) Discussion of the emergency safety situation that required
personal restraint or seclusion, including a discussion of
precipitating factors that led up to the situation.
(b) Alternative techniques that might have prevented the use
of personal restraint or seclusion.
(c) The procedures, if any, that child caring institution
staff are to implement to prevent a recurrence of the use of
personal restraint or seclusion.
(d) The outcome of the emergency safety intervention,
including any injury that may have resulted from the use of
personal restraint or seclusion.
(13) The child caring institution staff shall document in the
minor child's record that both debriefing sessions took place and
shall include the names of staff who were present for the
debriefings, names of staff that were excused from the debriefings,
and changes to the minor child's treatment plan that result from
the debriefings.
(14) Each child caring institution subject to this section and
sections 2c and 2d shall report each serious occurrence to the
state agency licensing the child caring institution. The state
agency licensing the child caring institution shall make the
reports available to the designated state protection and advocacy
system upon request of the designated state protection and advocacy
system. Serious occurrences to be reported include a minor child's
death, a serious injury to a minor child, and a minor child's
suicide attempt. Staff shall report any serious occurrence
involving a minor child by no later than close of business of the
next business day after a serious occurrence. The report shall
include the name of the minor child involved in the serious
occurrence, a description of the occurrence, and the name, street
address, and telephone number of the child caring institution. The
child caring institution shall notify the minor child's parent or
legal guardian and the appropriate state or local government agency
that has responsibility for the minor child if the minor child is
under the supervision of the child caring institution as a result
of an order of commitment by the family division of circuit court
to a state institution or otherwise as soon as possible and not
later than 24 hours after the serious occurrence. Staff shall
document in the minor child's record that the serious occurrence
was reported to both the state agency licensing the child caring
institution and the state-designated protection and advocacy
system, including the name of the person to whom notification of
the incident was reported. A copy of the report shall be maintained
in the minor child's record, as well as in the incident and
accident report logs kept by the child caring institution.
(15) Each child caring institution subject to this section and
sections 2c and 2d shall maintain a record of the incidences in
which personal restraint or seclusion was used for all minor
children. The record shall include all of the following
information:
(a) Whether personal restraint or seclusion was used.
(b) The setting, unit, or location in which personal restraint
or seclusion was used.
(c) Staff who initiated the process.
(d) The duration of each use of personal restraint or
seclusion.
(e) The date, time, and day of the week restraint or seclusion
was initiated.
(f) Whether injuries were sustained by the minor child or
staff.
(g) The age and gender of the minor child.
(16) Each child caring institution subject to this section and
sections
2c and 2d shall submit a report annually to the state
agency
that licenses the child caring institution containing the
aggregate
data from the record of incidences for
each 12-month
period
as in the manner directed by the state licensing agency. The
state licensing agency shall prepare reporting forms or systems to
be used by the child caring institution, shall aggregate the data
collected from each child caring institution, and shall annually
report the data to each child caring institution and the state-
designated protection and advocacy system.