HOUSE BILL No. 6491

 

September 23, 2008, Introduced by Reps. Spade and Polidori 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 2c, 2d, and 2e (MCL 722.112c, 722.112d, and

 

722.112e), as added by 2004 PA 531.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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.

 

     (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 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 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. The

 

licensed practitioner shall be available to staff for consultation,

 

at least by telephone, throughout the period of personal restraint

 

or seclusion. The licensed practitioner shall verify the verbal

 


order in signed written form in the minor child's record.

 

     (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.

 

     (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 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.

 

     (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 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 directed by the state licensing agency. The state

 

licensing agency shall prepare reporting forms 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.