GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 1221*

Short Title:  Restraints in Facilities.	(Public)

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Sponsors: Senators Carpenter, Phillips, Dannelly, Lucas, Martin of Pitt, Martin of Guilford, Purcell; Allran, Forrester, and Hartsell.

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Referred to:  Health Care.

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May 15, 2000

A BILL TO BE ENTITLED
AN ACT TO REGULATE THE USE OF RESTRAINTS, SECLUSION, AND OTHER PROCEDURES IN CERTAIN FACILITIES, TO REQUIRE THE REPORTING OF DEATHS IN CERTAIN FACILITIES AND IMPOSING PENALTIES FOR FAILURE TO REPORT, AND TO AUTHORIZE THE GOVERNOR'S ADVOCACY COUNCIL FOR PERSONS WITH DISABILITIES TO HAVE ACCESS TO INFORMATION ABOUT THE DEATHS.
The General Assembly of North Carolina enacts:
Section 1.(a)	G.S. 122C-3 is amended by adding the following new definitions in the appropriate alphabetical order to read:
"§ 122C-3. Definitions.
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(13)	'Drug used as a restraint' is a medication used to control behavior or to restrict the patient's freedom of movement and is not a standard treatment for the patient's medical or psychiatric condition.
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(18a)	'Isolation time-out' means the removal of a client to a separate unlocked room or area from which the client is physically prevented from leaving.
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(32a)	'Protective device' means intervention which provides support for or enhances the safety of a client. A 'protective behavioral device' enhances the safety of a self-injurious client. A 'protective medical device' provides support for a medically fragile client.
(32b)	'Restraint' means the limitation of an individual's freedom of movement.  In accordance with G.S. 122C-60, 'restraint' includes mechanical restraint and physical restraint, as follows:
a.	'Mechanical restraint' is the restraining of a client with the intent of controlling the client's behavior with mechanical devices.  Mechanical devices include cuffs, ankle straps, sheets, or restraining shirts, but not protective devices.
b.	'Physical restraint' means the use of physical holds to limit an individual's movements except those holds required for necessary medical procedures or gentle instructional or physical guiding.
c.	'Planned restrictive intervention' means the use of physical restraint, mechanical restraint, protective behavioral device, seclusion, or isolation time-out as part of a comprehensive treatment plan.
(32c)	'Seclusion' means the isolation of a client in a separate, locked room."
Section 1.(b) G.S. 122C-60 reads as rewritten:
"§ 122C-60. Use of restraints, seclusion, and other procedures.
		(a)	Except as provided in subsection (b) of this section, a facility may use physical restraint, mechanical restraint, protective behavioral device, isolation time-out, or seclusion of a client only when there is imminent danger of harm to the client or others.
(b)	A facility may use planned restrictive intervention when all of the following are true:
(1)	There is current documented evidence based on the client's condition that includes medical and behavioral assessments, which clearly substantiates that serious physical harm to self or others would occur if the planned restrictive intervention were not employed.
(2)	The planned restrictive intervention is used as a last resort when less restrictive alternatives have failed.
(3)	The planned restrictive intervention has been reviewed, approved, and signed by the physician or licensed psychologist prior to implementation by a treatment or planning team.  The treatment or planning team shall include all of the following:
a.	A physician.
b.	A licensed psychologist or a licensed psychological associate.
c.	The client or the client's legally responsible person.
d.	A client advocate chosen by the client.  If the client refuses to choose a client advocate, then the client advocate may be appointed by the facility.
(4)	The client or the client's legally responsible person has consented to the plan in writing.  If written consent of the legally responsible person cannot be obtained prior to implementation of the procedure, then witnessed verbal consent shall be valid until written consent is obtained but not longer than 30 days. If a client refuses to consent to the plan, then planned restrictive intervention may be used despite refusal by the client or the legally responsible person if the use is in accordance with G.S. 122C-57 and this section.
(5)	The plan for use of planned restrictive intervention shall expire on the 90th day after its initial adoption and every 90 days thereafter unless an external review of the planned restrictive intervention plan is conducted within the 90-day period and the review finds that continued use of the plan or alternative strategies is appropriate. As used in this subdivision, 'external review' is a review conducted by one or more persons or entities knowledgeable of the client population and facility procedures and not employed by the facility.
Within 15 minutes of initiation, each use of planned restrictive intervention shall be approved by a professional qualified to assess the appropriateness of the planned restrictive intervention. The facility shall review regularly the use of planned restrictive intervention to assess its appropriateness and effectiveness.
(c)	The facility shall employ the least restrictive method of restraint, isolation time-out, protective behavioral device, or seclusion applicable to the particular situation. The facility shall end the restraint, isolation time-out, protective behavioral device, seclusion, or planned restrictive intervention when the client is no longer a danger to self or others.
(d)	A facility shall obtain the written order of a physician or licensed psychologist within one hour of initiating the use of physical restraint, mechanical restraint, protective behavioral device, seclusion, or isolation time-out. The order must specify duration and the circumstances under which the physical restraint, mechanical restraint, protective behavioral device, seclusion, or isolation time-out may be used.  An order for the use of restraint, protective behavioral device, seclusion, or isolation time-out shall not be issued as a standing order or on an as needed basis.  The use of planned restrictive intervention as authorized under subsection (b) of this section meets the written order requirements of this subsection.
(e)	A facility shall ensure that each client in physical restraint, mechanical restraint, seclusion, or isolation time-out is observed continuously by facility staff.  Staff assigned to conduct audio-video observation of a client shall not engage in any activity other than continuous observation of the client.  A facility shall ensure that a physical assessment of each client in physical restraint, mechanical restraint, seclusion, or isolation time-out is conducted by a physician, registered nurse, physician assistant, or nurse practitioner within one hour of the initiation of the procedure.
(f)	A facility shall not employ restraint and seclusion simultaneously.
(g)	A drug used as a restraint:
(1)	Shall not be employed for the purpose of discipline, punishment, staff convenience, or as a substitute for adequate staffing, and
(2)	Shall not be employed unless required to treat a medical condition.
(h)	A facility shall ensure that the following procedures are implemented during the use of restraint, protective behavioral device, seclusion, or isolation time-out:
(1)	The client's vital indicators are monitored to assure that the client is conscious, breathing freely, free of physical pain or harm, verbally responsive, and motorically in control.
(2)	If there is apparent loss or clouding of the client's consciousness or difficulty or interruption in the client's breathing, then the facility shall discontinue the restraints, protective behavioral device, isolation time-out or seclusion, and shall immediately seek medical services for the client.
(i)	Facilities shall implement policies and practices that emphasize the use of alternatives to restraint, protective device, seclusion, and isolation time-out.  Restraints, protective device, seclusion, and isolation time-out may be employed only by staff who have been trained and have demonstrated competence in the proper use of and alternatives to these procedures.  Facilities shall ensure that staff authorized to employ and terminate restraint, protective device, seclusion, and isolation time-out are retrained and have demonstrated competence at least annually.
(j)	Facilities shall document each instance of the use of restraint, protective behavioral device, seclusion, and isolation time-out in the client's record.  Documentation shall include:
(1)	The type of restraint, protective behavioral device, isolation time-out, or seclusion used.
(2)	Reasons why the procedure was used, including a description of the event that prompted use.
(3)	The time and duration of the procedure.
(4)	Use of less restrictive alternatives.
(5)	Planning, debriefing, and internal monitoring conducted to eliminate or reduce the probability of incidents that would require use of these procedures.
(6)	All assessments, physical examinations, other safety checks, and continuous observations of the client employed during these procedures.
(7)	Informed involvement of the client and the client's legally responsible person, if applicable, in planning, debriefing, and assessment concerning these procedures and their alternatives.
(k)	Facilities shall collect and analyze data on the use of restraint, planned restrictive intervention, protective behavioral device, isolation time-out, and seclusion. The data shall reflect for each incidence, the type of procedure used, the length of time employed, alternatives considered or employed, and the effectiveness of each procedure or alternative employed.  Facilities shall collect and analyze the data on a quarterly basis to monitor effectiveness, determine trends, and take corrective action where necessary.  Facilities shall make the data available to the Secretary upon request.
(l)	An individual or entity that (i) provides services to individuals who receive services from a facility, (ii) charges the facility or the individual a fee for the services provided, and (iii) is not licensed under Article 2 of this Chapter and not excluded from licensure under G.S. 122C-22, shall comply with the requirements of this section.  An individual or entity required to comply with this section shall notify the facility immediately upon the death of an individual receiving services from the individual or entity.  The notification shall include the circumstances of the death known to the individual or entity.
(m)	The Commission shall adopt rules to implement this section. Rules adopted by the Commission shall address the following:
(1)	Requirements for the external review of planned restrictive interventions on a regular basis to assess appropriateness and effectiveness.
(2)	Qualifications necessary for professionals that assess the appropriateness of the planned restrictive intervention.
(3)	Staff training and competence in:
a.	The use of positive behavioral supports.
b.	Communication strategies for defusing and de-escalating potentially dangerous behavior.
c.	Monitoring vital indicators.
d.	Administration of CPR.
e.	Debriefing with client and staff.
f.	Methods for determining staff competence, including qualifications of trainers and training curricula.
g.	Other areas designed to ensure the safe and appropriate use of restraints, protective devices, isolation time-out, and seclusion.
(4)	Time limits on and renewal of:
a.	Written orders for the use of restraint, protective devices, isolation time-out, and seclusion, and
b.	Reauthorization of planned restrictive intervention by a treatment or planning team.
(5)	Time frames for physical assessment of a client who is in restraint, protective behavioral device, isolation time-out, or seclusion.
(6)	Collection, analysis, and use of data by facilities pursuant to subsection (k) of this section.
(7)	Any other matters relating to the use of restraints, protective devices, isolation time-out, and seclusion of clients.
(n)	The Department may investigate complaints and inspect a facility at any time to ensure compliance with this section."
Section 2.(a) G.S. 131D-10.2 is amended by adding the following new definitions in the appropriate alphabetical order to read:
"§ 131D-10.2. Definitions.
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(7a)	'Drug used as a restraint' is a medication used to control behavior or to restrict the child's freedom of movement and is not a standard treatment for the child's medical or psychiatric condition.
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(10a)	'Physical restraint' means physically holding a child who is at imminent risk of harm to self or others until the child is calm.
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(14)	'Time-out' means the removal of a child to a separate unlocked room or area from which a child is not physically prevented from leaving."
Section 2.(b)	Article 1A of Chapter 131D of the General Statutes is amended by adding the following new section to read:
"§ 131D-10.5A. Use of restraints and time-out in residential child-care facilities.
(a)	A residential child-care facility may employ physical restraint and time-out.  A drug used as a restraint:
(1)	Shall not be employed for the purpose of discipline, punishment, staff convenience, or as a substitute for adequate staffing, and
(2)	Shall not be employed unless required to treat a medical condition.
(b)	A residential child-care facility may employ physical restraint of a child only when there is imminent risk of harm to the child or others.  In employing physical restraint the facility shall use the least restrictive method of physical restraint applicable to a particular situation and the facility shall end the physical restraint when there is no longer imminent risk of harm to the child or others.  Before employing physical restraint the facility shall take into consideration the medical condition of the child and any medications the child may be taking.
(c)	The residential child-care facility shall record in an incident log and shall document in the child's record all instances of physical restraint and the detailed reasons for the use of physical restraint by the facility.  Documentation of instances of physical restraint shall include all of the following:
(1)	The type of physical restraint used.
(2)	The time and duration of the physical restraint.
(3)	Less restrictive alternatives to the physical restraint that were considered.
(4)	Evidence of planning and debriefing to reduce the probability of incidents that would require use of physical restraint.
(d)	During the entire period of time that a child is under physical restraint in a residential child-care facility, the facility shall ensure that the child is observed continuously by facility staff.  The facility shall include in the child's record a notation of the observation.
(e)	Physical restraint of a child in a residential child-care facility may be employed only by staff who have been trained and have demonstrated competence in the safe and appropriate use of physical restraints, the alternatives, and techniques to identify and defuse potential emergency situations. Training shall also include monitoring of vital indicators, administration of CPR, and debriefing with staff and the child restrained.  All staff employing restraint shall be trained and demonstrate competence annually.
(f)	A residential child-care facility may use time-out only if the child in time-out is within hearing and visual distance of staff and the length of time-out is appropriate to the child's age and development.
(g)	The Commission shall adopt rules on the use of physical restraint and time-out in residential child-care facilities and shall establish personnel requirements of staff employed in these facilities."
Section 3.(a) G.S. 131D-2 is amended by adding the following new subdivisions in the appropriate alphabetical order to read:
"§ 131D-2. Licensing of adult care homes for the aged and disabled.
(a)	The following definitions will apply in the interpretation of this section:
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(1e)	'Chemical restraint' means a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms.
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(11a)	'Restraint' means the restriction of an individual's freedom of movement.  'Restraint' includes physical holds and physical restraints, as follows:
a.	'Physical hold' means physically holding an individual to limit the individual's movements except when required for necessary medical procedures or gentle instructions or physical guiding.
b.	'Physical restraint' means the application of a physical or mechanical device attached to or adjacent to the resident's body that the resident cannot remove easily which restricts the resident's freedom of movement or normal access to the resident's body."
Section 3.(b) Article 1 of Chapter 131D of the General Statutes is amended by adding the following new section to read:
"§ 131D-4.8. Use of restraint.
(a)	Adult care homes may use restraints only when the resident has medical symptoms that warrant the use of restraints, and  when alternatives to restraints have failed.  An adult care home shall not use restraints for the purpose of discipline or convenience.  When using restraints, the facility shall use the least restrictive restraint that provides safety.   Adult care homes shall develop and implement policies and procedures in the use of alternatives to restraints and in the care of residents who are restrained.  The policies and procedures shall include:
(1)	The implementation of a systemic and gradual process for reducing physical restraint time by the use of alternatives.
(2)	Development of an assessment and care plan for each resident with medical symptoms that warrant the use of restraints. Except in emergency situations, a resident shall not be restrained until the assessment and care plan have been developed.
(3)	A process for providing residents information that the resident's right to participate in the resident's care and treatment includes the right to accept or refuse physical restraint.  Information shall enable the resident or the resident's representative to make an informed choice about the use of restraints, including negative outcomes, benefits, and alternatives to restraints.  If the resident is incapable of making decisions, the information shall be provided to the resident's representative.  A resident's representative shall not assent to the use of restraints for discipline or staff convenience or when the restraint is not necessary to treat the resident's medical symptoms.
(4)	Other policies and procedures pertaining to the use of restraints and alternatives to restraints necessary to comply with rules adopted by the Medical Care Commission.
(b)	Except in emergency situations where there is risk of harm to the resident or others, adult care homes shall not use physical restraints without a written order from a physician.  The order shall specify the medical need for the restraint, the type of physical restraint to be used, the circumstances under which the restraint may be used, and the time intervals the restraint must be checked and removed. Adult care homes may employ physical holds of a resident only in an emergency where there is risk of harm to the resident or others.  In emergency situations, adult care homes may use restraints for not longer than one hour until a physician is contacted or the resident is transferred to a medical facility.
(c)	Adult care homes shall record in an incident log and shall document in the resident's record all instances of restraints employed and the detailed reasons for the use of restraints.  Documentation of instances of restraints shall include all of the following:
(1)	Medical symptoms warranting the use of restraint.
(2)	The type of restraint used.
(3)	The time and duration of the restraint.
(4)	Alternatives to restraint that were provided and the resident's response.
(5)	The resident's behaviors and care provided during the use of restraints.
(6)	Evidence of planning by the adult care home to reduce the probability of incidents that would require the use of restraint.
(d)	Restraints may be employed only by staff who have been trained and validated for competence by a registered nurse in the proper use of restraints, alternatives to restraints, and techniques to identify and defuse potential emergency situations.  Adult care homes shall ensure that staff authorized to employ restraints are validated annually by a registered nurse as competent in the use of restraints and are required to complete annually a refresher course in the use of restraints and alternatives to restraints. The Commission shall adopt rules establishing minimum training and curriculum requirements for the use of restraints and alternatives to restraints.
(e)	Adult care homes shall not use chemical restraint.
(f)	As used in this section, a resident's representative is a person designated under G.S. 131D-22.
(g)	The Medical Care Commission shall adopt rules to implement this section. The rules shall be at least as protective of residents of adult care homes as State and federal laws, rules, and regulations governing the use of physical restraints in nursing homes."
Section 4.  Article 2 of Chapter 122C of the General Statutes is amended by adding the following new section to read:
"§ 122C-31. Report required upon death of client.
(a)	A facility shall notify the Secretary immediately upon the death of any client of the facility. The Secretary may assess a civil penalty of not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000) against a facility that fails to notify the Secretary of a death and the circumstances surrounding the death known to the facility. Each day of a continuing violation of this subsection is a separate violation. Chapter 150B of the General Statutes governs the assessment of a penalty under this section.  A civil penalty owed under this section may be recovered in a civil action brought by the Secretary or the Attorney General.  The clear proceeds of the penalty shall be remitted to the State Treasurer for deposit in accordance with State law.
(b)	Upon receipt of notification from a facility in accordance with subsection (a) of this section, the Secretary shall notify the Governor's Advocacy Council for Persons With Disabilities that a person with a disability has died. The Secretary shall provide the Council access to the information about each death reported, including information resulting from any investigation of the death by the Department and from reports received from the Chief Medical Examiner pursuant to G.S. 130A-385. The Council shall use the information in accordance with its powers and duties under G.S. 143B-403.1 and applicable federal law and regulations.
(c)	If the death of a client of a facility occurs within seven days of the use of restraint, protective behavioral device, seclusion, or isolation time-out, the Secretary shall initiate immediately an investigation of the death.
(d)	An inpatient psychiatric unit of a hospital licensed under Chapter 131E of the General Statutes shall comply with this section.
(e)	Nothing in this section abrogates State law pertaining to the confidentiality of information provided to the Secretary or the Council under this section.  In carrying out the requirements of this section, the Secretary and the Council shall adhere to State and federal requirements of confidentiality applicable to the information received under this section.  A facility or provider that makes available confidential information in accordance with this section and with State and federal law is not liable for the release of the information."
Section 5. G.S. 130A-385 is amended by adding the following new subsection to read:
"( f)	If a death occurred in a facility licensed subject to Article 2 or Article 3 of Chapter 122C of the General Statutes, or Articles 1 or 1A of Chapter 131D of the General Statutes, and the deceased was a client or resident of the facility or a recipient of facility services at the time of death, then the Chief Medical Examiner shall forward a copy of the medical examiner's report to the Secretary of Health and Human Services within 30 days of receipt of the report from the medical examiner."
Section 6.  Article 1A of Chapter 131D of the General Statutes is amended by adding the following new section to read:
"§ 131D-10.6B. Report of death.
(a)	A facility licensed under this Article shall notify the Department immediately upon the death of any resident of the facility.  The Department may assess a civil penalty of not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000) against a facility that fails to notify the Department of a death and the circumstances surrounding the death known to the facility. Each day of a continuing violation of this subsection is a separate violation.  Chapter 150B of the General Statutes governs the assessment of a penalty under this section.  A civil penalty owed under this section may be recovered in a civil action brought by the Department or the Attorney General.  The clear proceeds of the penalty shall be remitted to the State Treasurer for deposit in accordance with State law.
(b)	Upon receipt of notification from a facility in accordance with subsection (a) of this section, the Department shall notify the Governor's Advocacy Council for Persons With Disabilities that a person with a disability has died.  The Department shall provide the Council access to the information about each death reported to the Council, including information resulting from any investigation of the death by the Department, and from reports received from the Chief Medical Examiner pursuant to G.S. 130A-385.  The Council shall use the information in accordance with its powers and duties under G.S. 143B-403.1 and applicable federal law and regulations.
(c)	If the death of a resident of the facility occurs within seven days of the use of physical restraint, the Department shall initiate immediately an investigation of the death.
(d)	Nothing in this section abrogates State law pertaining to the confidentiality of information provided to the Department or the Council under this section.  In carrying out the requirements of this section, the Department and the Council shall adhere to State and federal requirements of confidentiality applicable to the information received under this section.  A facility or provider that makes available confidential information in accordance with this section and with State and federal law is not liable for the release of the information."
Section 7. Article 3 of Chapter 131D of the General Statutes is amended by adding the following new section to read:
"§ 131D-34.1. Report of death of resident.
(a)	An adult care home shall notify the Department of Health and Human Services immediately upon the death of any resident that occurs in the adult care home or that occurs within 24 hours of the resident's transfer to a hospital.  The Department may assess a civil penalty of not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000) against a facility that fails to notify the Department of a death and the circumstances surrounding the death known to the facility. Each day of a continuing violation of this subsection is a separate violation. Chapter 150B of the General Statutes governs the assessment of a penalty under this section.  A civil penalty owed under this section may be recovered in a civil action brought by the Department or the Attorney General.   The clear proceeds of the penalty shall be remitted to the State Treasurer for deposit in accordance with State law.
(b)	Upon receipt of notification from an adult care home in accordance with subsection (a) of this section, the Department of Health and Human Services shall notify the Governor's Advocacy Council for Persons With Disabilities that a person with a disability has died. The Department shall provide the Council access to the information about each death reported, including information resulting from any investigation of the death by the Department and from reports received from the Chief Medical Examiner pursuant to G.S. 130A-385. The Council shall use the information in accordance with its powers and duties under G.S. 143B-403.1 and applicable federal law and regulations.
(c)	If the death of a resident of the adult care home occurs within seven days of the use of physical restraint or physical hold,  the Department shall initiate immediately an investigation of the death.
(d)	Nothing in this section abrogates State law pertaining to the confidentiality of information provided to the Department or the Council under this section.  In carrying out the requirements of this section, the Department and the Council shall adhere to State and federal requirements of confidentiality applicable to the information received under this section.  A facility or provider that makes available confidential information in accordance with this section and with State and federal law is not liable for the release of the information."
Section 8. This act becomes effective January 1, 2001.