HF 3377

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to children's mental health; requiring children's mental health providers
to develop a plan for and comply with requirements on the use of restrictive
procedures; amending Minnesota Statutes 2006, section 256B.0943, subdivision
5; proposing coding for new law in Minnesota Statutes, chapter 245.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [245.8261] RESTRICTIVE PROCEDURES PLANNING AND
REPORTING.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin (a) This section applies to providers of the following mental
health services for children:
new text end

new text begin (1) emergency services as defined in sections 245.4871, subdivision 14, and
245.4879;
new text end

new text begin (2) family community support services as defined in section 245.4871, subdivision
17;
new text end

new text begin (3) day treatment services as defined in section 245.4871, subdivision 10;
new text end

new text begin (4) therapeutic support of foster care as defined in section 245.4871, subdivision 34;
new text end

new text begin (5) professional home-based family treatment as defined in sections 245.4871,
subdivision 31, and 245.4884, subdivision 3; and
new text end

new text begin (6) mental health crisis services as defined in sections 245.4871, subdivision 24a,
and 245.488, subdivision 3.
new text end

new text begin (b) Providers of mental health services for children under paragraph (a) must meet
the requirements of this section before using a restrictive procedure with a child.
new text end

new text begin Subd. 2. new text end

new text begin Restrictive procedures plan. new text end

new text begin (a) A services provider under subdivision 1,
paragraph (a), shall have on file and available for viewing a restrictive procedures plan for
children in its program that must include at least the following:
new text end

new text begin (1) the list of restrictive procedures the provider intends to use;
new text end

new text begin (2) how the provider will monitor and control the use of restrictive procedures;
new text end

new text begin (3) a description of the training that staff who use restrictive procedures must
complete prior to staff implementation of restrictive procedures;
new text end

new text begin (4) how the provider will document information needed to prepare the annual report
required in subdivision 15; and
new text end

new text begin (5) how the provider will ensure that the child receives treatment for any injury
caused by the use of a restrictive procedure.
new text end

new text begin (b) For purposes of this section, allowable restrictive procedures include those
procedures allowed under subdivision 4, paragraph (a).
new text end

new text begin Subd. 3. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the terms in this
subdivision have the meanings given them.
new text end

new text begin (b) "Commissioner" means the commissioner of human services.
new text end

new text begin (c) "Child" means a person under 18 years of age.
new text end

new text begin (d) "Individual treatment plan" has the meaning given in section 245.4871,
subdivision 21, as required for children's mental health services providers in section
245.4876, subdivision 3. The individual treatment plan must be based on a diagnostic
assessment which includes assessment and review of medical conditions and risks of
psychological trauma which might be incurred by use of seclusion or restraint.
new text end

new text begin (e) "Mechanical restraints" means the use of devices to limit a child's movement or
hold a child immobile. The term does not mean mechanical restraints used to:
new text end

new text begin (1) treat a child's medical needs;
new text end

new text begin (2) protect a child known to be at risk of injury resulting from lack of coordination
or frequent loss of consciousness; or
new text end

new text begin (3) position a child with physical disabilities in a manner specified in the child's
plan of care.
new text end

new text begin (f) "Physical escort" means physical intervention or contact used as a behavior
management technique to guide or carry a child to safety or away from an unsafe or
potentially harmful and escalating situation.
new text end

new text begin (g) "Physical holding" means physical intervention intended to hold a child immobile
or limit a child's movement by using body contact as the only source of physical restraint.
The term does not mean physical contact:
new text end

new text begin (1) used to facilitate a child's response or completion of a task when the child does
not resist or the child's resistance is minimal in intensity and duration; and
new text end

new text begin (2) necessary to conduct a medical examination or treatment.
new text end

new text begin (h) "Restrictive procedures" means application of an action, force, or condition that
controls, constraints, or suppresses the action, behavior, intention, bodily placement,
or bodily location of a child in a manner that is involuntary, unintended by that child,
depriving, or aversive to that child.
new text end

new text begin (i) "Time out" means removing a child from an activity to a location where the child
cannot participate or observe the activity and includes moving or ordering a child to
an unlocked room.
new text end

new text begin (j) "Seclusion" involves the confining of a child alone in a room from which egress
is beyond the child's control or prohibited by a mechanism such as a lock or by a device
or object positioned to hold the door closed or otherwise prevent the child from leaving
the room. The room used for seclusion must be well-lighted, well-ventilated, clean, have
an observation window which allows staff to directly monitor the child in seclusion,
fixtures that are tamperproof, electrical switches located immediately outside the door, and
doors that open out and are unlocked or locked with keyless locks that have immediate
release mechanisms.
new text end

new text begin Subd. 4. new text end

new text begin Allowable procedures. new text end

new text begin (a) A provider may use one or more of the
following restrictive procedures:
new text end

new text begin (1) physical escort;
new text end

new text begin (2) physical holding;
new text end

new text begin (3) seclusion; and
new text end

new text begin (4) the limited use of mechanical restraints only in emergency situations.
new text end

new text begin (b) A provider shall permit use of restrictive procedures only by a mental health
professional under section 245.4871, subdivision 27, or by a mental health practitioner
under section 245.4871, subdivision 26, who is acting under the clinical supervision
of a mental health professional.
new text end

new text begin Subd. 5. new text end

new text begin Parental consent and notification. new text end

new text begin Parental consent for use of seclusion
and restraint procedures must be obtained when a child begins receiving services. The
agreement must be reviewed at least quarterly. A provider shall notify the child's parent or
guardian of the use of a restrictive procedure on the same day the procedure is used, unless
the parent or guardian notifies the provider that the parent or guardian does not want to
receive notification or the parent or guardian requests a different notification schedule.
new text end

new text begin Subd. 6. new text end

new text begin Physical escort requirements. new text end

new text begin The physical escort of a child may be used
to control a child who is being guided to a place where the child will be safe and to help
de-escalate interactions between the child and others. A provider who uses physical
escorting with a child shall meet the following requirements:
new text end

new text begin (1) staff shall be trained according to subdivision 12;
new text end

new text begin (2) staff shall document the use of physical escort and note the technique used, the
time of day, and the names of the staff and child involved; and
new text end

new text begin (3) the use of physical escort shall be consistent with the child's treatment plan.
new text end

new text begin Subd. 7. new text end

new text begin Physical holding or seclusion. new text end

new text begin Physical holding or seclusion may be used
in emergency situations as a response to imminent serious risk of physical harm to the
child or others and when less restrictive interventions are ineffective. A provider who uses
physical holding or seclusion shall meet the following requirements:
new text end

new text begin (1) an immediate intervention must be necessary to protect the child or others from
physical harm;
new text end

new text begin (2) the physical holding or seclusion used must be the least intrusive intervention
that will effectively react to an emergency;
new text end

new text begin (3) the use of physical holding or seclusion must end when the threat of harm ends;
new text end

new text begin (4) the child must be constantly and directly observed by staff during the use of
physical holding or seclusion;
new text end

new text begin (5) the use of physical holding or seclusion must be used under the supervision
of a mental health professional;
new text end

new text begin (6) staff shall contact the mental health professional to inform the mental health
professional about the use of physical holding or seclusion and to ask for permission to
use physical holding or seclusion as soon as it may safely be done, but no later than 30
minutes after initiating the use of physical holding or seclusion;
new text end

new text begin (7) before staff uses physical holding or seclusion with a child, staff shall complete
the training required in subdivision 12 regarding the use of physical holding or seclusion
at the program;
new text end

new text begin (8) when the need for the use of physical holding or seclusion ends, the child must
be assessed to determine if the child can safely be returned to the ongoing activities at the
program;
new text end

new text begin (9) staff shall treat the child respectfully throughout the procedure;
new text end

new text begin (10) the staff person who implemented the use of physical holding or seclusion shall
document its use immediately after the incident concludes and the documentation must
include at least the following information:
new text end

new text begin (i) a detailed description of the incident which led to the use of physical holding or
seclusion;
new text end

new text begin (ii) an explanation of why the procedure chosen needed to be used;
new text end

new text begin (iii) why less restrictive measures failed or were found to be inappropriate;
new text end

new text begin (iv) the time the physical hold or seclusion began and the time the child was released;
new text end

new text begin (v) documentation must occur for each 15-minute interval, and must include, during
the use of physical holding or seclusion, documentation of the child's behavioral change
and change in physical status that resulted from the use of the procedure; and
new text end

new text begin (vi) the names of all staff involved in the use of the procedure and the names of all
witnesses to the use of the procedure; and
new text end

new text begin (11) if seclusion is used, the room used for the seclusion must:
new text end

new text begin (i) be well-lit, well-ventilated, and clean;
new text end

new text begin (ii) have an observation window which allows staff to directly monitor a child in
seclusion;
new text end

new text begin (iii) have fixtures that are tamperproof, with electrical switches located immediately
outside the door;
new text end

new text begin (iv) have doors that open out and are unlocked or are locked with keyless locks that
have immediate release mechanisms; and
new text end

new text begin (v) have objects that may be used by a child to injure the child's self or others
removed from the child and the seclusion room before the child is placed in seclusion.
new text end

new text begin Subd. 8. new text end

new text begin Exempt techniques and procedures. new text end

new text begin (a) Use of the instructional
techniques and intervention procedures listed in this subdivision is not subject to the
restrictions established by this section. The child's individual treatment plan, as defined
in section 245.4871, subdivision 21, and as required in section 245.4876, subdivision 3,
must address the use of these exempt techniques and procedures. Exempt techniques
and procedures include:
new text end

new text begin (1) corrective feedback or prompt to assist a child in performing a task or exhibiting
a response;
new text end

new text begin (2) physical contact to facilitate a child's completion of a task or response that is
directed at increasing adaptive behavior when the child does not resist or the child's
resistance is minimal in intensity and duration;
new text end

new text begin (3) physical contact or a physical prompt to redirect a child's behavior when:
new text end

new text begin (i) the behavior does not pose a serious threat to the child or others;
new text end

new text begin (ii) the behavior is effectively redirected with less than 60 seconds of physical
contact by staff; or
new text end

new text begin (iii) the physical contact is used to conduct a necessary medical examination or
treatment; and
new text end

new text begin (4) manual or mechanical restraint to treat a child's medical needs or to protect a
child known to be at risk of injury from an ongoing medical or psychological condition.
new text end

new text begin (b) The exemptions under this subdivision must not be used to circumvent the
requirements for controlling the use of manual restraint. The exemptions under this
subdivision are intended to allow providers the opportunity to deal effectively and
naturally with instruction and treatment interventions.
new text end

new text begin Subd. 9. new text end

new text begin Conditions on use of restrictive procedures. new text end

new text begin Restrictive procedures
must not:
new text end

new text begin (1) be implemented with a child in a manner that constitutes sexual abuse, neglect,
or physical abuse under section 626.556, the reporting of maltreatment of minors;
new text end

new text begin (2) restrict a child's normal access to a nutritious diet, drinking water, adequate
ventilation, necessary medical care, ordinary hygiene facilities, or necessary clothing or to
any protection required by state licensing standards and federal regulations governing the
program;
new text end

new text begin (3) be used as punishment or for the convenience of staff; or
new text end

new text begin (4) deny the child visitation or contact with legal counsel and next of kin.
new text end

new text begin Subd. 10. new text end

new text begin Prohibitions. new text end

new text begin (a) The following actions or procedures are prohibited:
new text end

new text begin (1) using corporal punishment such as hitting, pinching, slapping, or pushing;
new text end

new text begin (2) speaking to a child in a manner that ridicules, demeans, threatens, or is abusive;
new text end

new text begin (3) requiring a child to assume and maintain a specified physical position or posture,
for example, requiring a child to stand with the hands over the child's head for long periods
of time or to remain in a fixed position;
new text end

new text begin (4) use of restrictive procedures as a disciplinary consequence;
new text end

new text begin (5) totally or partially restricting a child's senses, except at a level of intrusiveness
that does not exceed:
new text end

new text begin (i) placing a hand in front of a child's eyes as a visual screen; or
new text end

new text begin (ii) playing music through earphones worn by the child at a level of sound that
does not cause discomfort;
new text end

new text begin (6) presenting an intense sound, light, noxious smell, taste, substance, or spray,
including water mist;
new text end

new text begin (7) denying or restricting a child's access to equipment and devices such as walkers,
wheelchairs, hearing aids, and communication boards that facilitate the child's functioning,
except as provided under paragraph (b).
new text end

new text begin (b) When the temporary removal of the equipment or device is necessary to prevent
injury to the child or others or serious damage to the equipment or device, the equipment
or device shall be returned to the child as soon as possible.
new text end

new text begin Subd. 11. new text end

new text begin Training for staff. new text end

new text begin (a) Staff who use restrictive procedures shall
successfully complete training in the following skills and knowledge areas before using
restrictive procedures with a child:
new text end

new text begin (1) the needs and behaviors of children;
new text end

new text begin (2) relationship-building;
new text end

new text begin (3) alternatives to restrictive procedures, including techniques to identify events and
environmental factors that may trigger behavioral escalation;
new text end

new text begin (4) de-escalation methods;
new text end

new text begin (5) avoiding power struggles;
new text end

new text begin (6) documentation standards for the use of restrictive procedures;
new text end

new text begin (7) how to obtain emergency medical assistance;
new text end

new text begin (8) time limits for restrictive procedures;
new text end

new text begin (9) obtaining approval for use of restrictive procedures;
new text end

new text begin (10) the proper use of the restrictive procedures approved for the program, including
simulated experiences of administering and receiving physical restraint;
new text end

new text begin (11) thresholds for employing and ceasing restrictive procedures;
new text end

new text begin (12) the physiological and psychological impact of physical holding and seclusion;
new text end

new text begin (13) how to monitor and respond to the child's physical signs of distress; and
new text end

new text begin (14) recognizing symptoms of and interventions with potential to cause positional
asphyxia.
new text end

new text begin (b) Training under this subdivision must be repeated every two years.
new text end

new text begin Subd. 12. new text end

new text begin Administrative review. new text end

new text begin The provider shall complete an administrative
review of the use of each restrictive procedure within three working days after the use of
the restrictive procedure. The administrative review shall be conducted by someone other
than the person who decided to impose the restrictive procedure, or that person's immediate
supervisor. The child or the child's representative shall have an opportunity to present
evidence and argument to the reviewer about why the procedure was unwarranted. The
record of the administrative review of the use of a restrictive procedure must state whether:
new text end

new text begin (1) the required documentation was recorded;
new text end

new text begin (2) the restrictive procedure was used in accordance with the treatment plan;
new text end

new text begin (3) the standards governing the use of restrictive procedures were met; and
new text end

new text begin (4) the staff who implemented the restrictive procedures were properly trained.
new text end

new text begin Subd. 13. new text end

new text begin Review of patterns of use of restrictive procedures. new text end

new text begin At least quarterly,
the treatment provider shall review the provider's patterns of the use of restrictive
procedures. The review must be completed by the treatment provider or the program's
advisory committee. The review shall consider:
new text end

new text begin (1) any patterns or problems indicated by similarities in the time of day, day of the
week, duration of the use of a procedure, individuals involved, or other factors associated
with the use of restrictive procedures;
new text end

new text begin (2) any injuries resulting from the use of restrictive procedures;
new text end

new text begin (3) actions needed to correct deficiencies in the program's implementation of
restrictive procedures;
new text end

new text begin (4) an assessment of opportunities missed to avoid the use of restrictive procedures;
and
new text end

new text begin (5) proposed actions to be taken to minimize the use of physical holding or seclusion.
new text end

new text begin Subd. 14. new text end

new text begin Annual report. new text end

new text begin A provider using restrictive procedures shall annually
submit a report to the commissioner stating the number and types of restrictive procedures
performed. The report shall be submitted in a form and manner prescribed by the
commissioner. Agencies with high use of restrictive procedures will be reviewed by
the department to determine needed changes in policies and procedures, including staff
training.
new text end

Sec. 2.

Minnesota Statutes 2006, section 256B.0943, subdivision 5, is amended to read:

Subd. 5.

Provider entity administrative infrastructure requirements.

(a) To be
an eligible provider entity under this section, a provider entity must have an administrative
infrastructure that establishes authority and accountability for decision making and
oversight of functions, including finance, personnel, system management, clinical practice,
and performance measurement. The provider must have written policies and procedures
that it reviews and updates every three years and distributes to staff initially and upon
each subsequent update.

(b) The administrative infrastructure written policies and procedures must include:

(1) personnel procedures, including a process for: (i) recruiting, hiring, training, and
retention of culturally and linguistically competent providers; (ii) conducting a criminal
background check on all direct service providers and volunteers; (iii) investigating,
reporting, and acting on violations of ethical conduct standards; (iv) investigating,
reporting, and acting on violations of data privacy policies that are compliant with
federal and state laws; (v) utilizing volunteers, including screening applicants, training
and supervising volunteers, and providing liability coverage for volunteers; and (vi)
documenting that each mental health professional, mental health practitioner, or mental
health behavioral aide meets the applicable provider qualification criteria, training criteria
under subdivision 8, and clinical supervision or direction of a mental health behavioral
aide requirements under subdivision 6;

(2) fiscal procedures, including internal fiscal control practices and a process for
collecting revenue that is compliant with federal and state laws;

(3) if a client is receiving services from a case manager or other provider entity, a
service coordination process that ensures services are provided in the most appropriate
manner to achieve maximum benefit to the client. The provider entity must ensure
coordination and nonduplication of services consistent with county board coordination
procedures established under section 245.4881, subdivision 5;

(4) a performance measurement system, including monitoring to determine cultural
appropriateness of services identified in the individual treatment plan, as determined by
the client's culture, beliefs, values, and language, and family-driven services; and

(5) a process to establish and maintain individual client records. The client's records
must include:

(i) the client's personal information;

(ii) forms applicable to data privacy;

(iii) the client's diagnostic assessment, updates, results of tests, individual treatment
plan, and individual behavior plan, if necessary;

(iv) documentation of service delivery as specified under subdivision 6;

(v) telephone contacts;

(vi) discharge plan; and

(vii) if applicable, insurance information.

new text begin (c) A provider entity that uses a restrictive procedure with a client must meet the
requirements of section 245.8261.
new text end