Revision: March 27, 2014, midnight
SB 396 – AS INTRODUCED
2014 SESSION
05/04
SENATE BILL 396
AN ACT relative to child restraint practices.
SPONSORS: Sen. Stiles, Dist 24; Sen. Odell, Dist 8; Rep. Ladd, Graf 4
COMMITTEE: Health, Education and Human Services
This bill revises the chapter limiting the use of child restraint practices in facilities and schools and regulates the use of seclusion, restraint, and force in such programs.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
14-2782
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to child restraint practices.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Definition of Child. Amend RSA 126-U:1, I to read as follows:
I. “Child” means a person who has not reached the age of 18 years and who is not under adult criminal prosecution or sentence of actual incarceration resulting therefrom, either due to having reached the age of 17 years or due to the completion of proceedings for transfer to the adult criminal justice system under RSA 169-B:24, RSA 169-B:25, or RSA 169-B:26. “Child” also includes a person in actual attendance at a school who is less than 21 years of age and who has not received a high school diploma.
2 Definition of Restraint. Amend RSA 126-U:1, IV to read as follows:
IV. “Restraint” means bodily physical restriction, mechanical devices, or any device that [unreasonably limits] immobilizes a person or restricts the freedom of movement of the torso, head, arms, or legs. It includes mechanical restraint, physical restraint, and medication restraint used to control behavior in an emergency or any involuntary medication.
(a) “Medication restraint” occurs when a child is given medication involuntarily for the purpose of immediate control of the child’s behavior.
(b) “Mechanical restraint” occurs when a physical device or devices are used to restrict the movement of a child or the movement or normal function of a portion of his or her body.
(c) “Physical restraint” occurs when a manual method is used to restrict a child’s freedom of movement or normal access to his or her body.
(d) Restraint shall not include:
(1) [Holding a child to calm or comfort the child, holding a child’s hand or arm to escort the child safely from one area to another, or intervening in an ongoing assault or fight] Brief touching to calm or comfort a child, so long as limitation of freedom of movement of the child does not occur, or the temporary touching of the hand, wrist, arm, shoulder, or back for the purpose of inducing a child to walk to a safe location, so long as the child is in an upright position and moving continuously toward a safe location.
(2) [Brief periods of physical restriction by person-to-person contact, without the aid of medication or mechanical restraints, accomplished with minimal force and designed either to prevent a child from completing an act that potentially would result in physical harm to himself or herself or to another person, or to remove a disruptive child who is unwilling to leave an area voluntarily.
(3)] Physical devices, such as orthopedically prescribed appliances, surgical dressings and bandages, and supportive body bands, or other physical holding when necessary for routine physical examinations and tests or for orthopedic, surgical, and other similar medical treatment purposes, or when used to provide support for the achievement of functional body position or proper balance or to protect a person from falling out of bed, or to permit a child to participate in activities without the risk of physical harm.
[(4)] (3) The use of seat belts, safety belts, or similar passenger restraints during the transportation of a child in a motor vehicle.
[(5)] (4) The use of force by a person to defend himself or herself or a third person from what the actor reasonably believes to be [the imminent use of unlawful force by a child, when the actor uses a degree of such force which he or she reasonably believes to be] necessary for such purpose and the actor does not immobilize a child or restrict the freedom of movement of the torso, head, arms, or legs of any child.
3 New Paragraph; Definition of Seclusion. Amend RSA 126-U:1 by inserting after paragraph V the following new paragraph:
V-a. “Seclusion” means the involuntary placement of a child alone in a place from which the particular child is unable to exit, either due to physical manipulation by a person, a lock, or other mechanical device or barrier. The term shall not include the voluntary separation of a child from a stressful environment for the purpose of allowing the child to regain self-control, when such separation is to an area which a child is able to leave.
4 New Paragraph; Definition of Use of Force. Amend RSA 126-U:1 by inserting after paragraph VI the following new paragraph:
VII. “Use of force” and “force” means the intentional touching, holding, or striking of a person by another, either directly or with the use of an implement. For purposes of the notice and reporting requirements of RSA 126-U:7, it shall not include:
(a) Brief touching to calm or comfort a child, so long as limitation of freedom of movement of the child does not occur;
(b) Any use of medical devices, therapeutic interventions, or passenger restraints described in RSA 126-U:1, IV(d)(2) and (3).
5 Written Policies. Amend RSA 126-U:2 and 126-U:3 to read as follows:
126-U:2 Written Policies Required. Each facility and school shall have a written policy and procedures for managing the behavior of children. Such policy shall describe how and under what circumstances seclusion or restraint is used and shall be provided to the parent, guardian, or legal representative of each child at such facility or school.
126-U:3 Post Admission Planning in Facilities.
I. As soon as possible after admission to a facility, the treatment staff of the facility, the child, and the child’s parent or guardian shall develop a plan to:
(a) Identify the child’s history of physical, sexual, or emotional trauma, if any.
(b) Identify effective responses to potential behavior or situations which will avoid the use of seclusion and restraint.
(c) Identify health conditions which may make the child vulnerable to injury while at the facility.
II. The plan described in this section is not required if the child is expected to be at the facility for fewer than 72 hours and, after conducting a reasonable inquiry, the staff of the facility is not informed of any history of the use of seclusion or restraint of the child.
6 New Sections; Limitation on the Use of Seclusion. Amend RSA 126-U by inserting after section 5 the following new sections:
126-U:5-a Limitation on the Use of Seclusion.
I. Seclusion may not be used as a form of punishment or discipline. It may only be used when a child’s behavior poses a substantial and imminent risk of physical harm to the child or to others, and may only continue until that danger has dissipated.
II. Seclusion shall only be used by trained personnel after other approaches to the control of behavior have been attempted and been unsuccessful, or are reasonably concluded to be unlikely to succeed based on the history of actual attempts to control the behavior of a particular child.
III. Seclusion shall not be used in a manner that that unnecessarily subjects the child to the risk of ridicule, humiliation, or emotional or physical harm.
126-U:5-b Conditions of Seclusion.
I. When permitted by this chapter, seclusion may only be imposed in rooms which:
(a) Are of a size which is appropriate for the chronological and developmental age, size, and behavior of the children placed in them.
(b) Have a ceiling height that is comparable to the ceiling height of the other rooms in the building in which they are located.
(c) Are equipped with heating, cooling, ventilation, and lighting systems that are comparable to the systems that are in use in the other rooms of the building in which they are located.
(d) Are free of any object that poses a danger to the children being placed in the rooms.
(e) Have doors which are either not equipped with locks, or are equipped with devices that automatically disengage the lock in case of an emergency. For the purposes of this subparagraph, an “emergency” includes, but is not limited to:
(1) The need to provide direct and immediate medical attention to a child;
(2) Fire;
(3) The need to remove a child to a safe location during a building lockdown; or
(4) Other critical situations that may require immediate removal of a child from seclusion to a safe location.
(f) Are equipped with unbreakable observation windows or equivalent devices to allow the safe, direct, and uninterrupted observation of every part of the room.
II. Each use of seclusion shall be directly and continuously visually and auditorially monitored by a person trained in the safe use of seclusion.
7 Notice and Record-Keeping Requirements; Investigations and Review. Amend RSA 126-U:7 through 126-U:10 to read as follows:
126-U:7 Notice and Record-Keeping Requirements.
I. Unless prohibited by court order, the facility or school shall, within 24 hours, make reasonable efforts to verbally notify the child’s parent or guardian and guardian ad litem whenever seclusion or any use of force, including restraint has been used on the child. Such notification shall be made as soon as practicable and in no event later than the time of the return of the child to the parent or guardian or the end of the business day, whichever is earlier. Notification shall be made in a manner calculated to give the parent or guardian actual notice of the incident at the earliest practicable time.
II. A facility employee or school employee who uses seclusion, force, or restraint, or if the facility employee or school employee is unavailable, a supervisor of such employee, shall, within 5 business days after the occurrence, submit a written notification containing the following information to the director or his or her designee:
(a) The date, time, and duration of the use of seclusion, force, or restraint.
(b) A description of the actions of the child before, during, and after the occurrence.
(c) A description of any other relevant events preceding the use of seclusion, force, or restraint, including the justification for initiating the use of restraint.
(d) The names of the persons involved in the occurrence.
(e) A description of the actions of the facility or school employees involved before, during, and after the occurrence.
(f) A description of any interventions used prior to the use of the seclusion, force, or restraint.
(g) A description of the seclusion, force, or restraint used, including any hold used and the reason the hold was necessary.
(h) A description of any injuries sustained by, and any medical care administered to, the child, employees, or others before, during, or after the use of seclusion, force, or restraint.
(i) A description of any property damage associated with the occurrence.
(j) A description of actions taken to address the emotional needs of the child during and following the [restraint] incident.
(k) A description of future actions to be taken to control the child’s problem behaviors.
(l) The name and position of the employee completing the notification.
(m) The anticipated date of the final report.
III. Unless prohibited by court order, the director or his or her designee shall, within 2 business days of receipt of the notification required in paragraph II, send or transmit by first class mail or electronic transmission to the child’s parent or guardian and the guardian ad litem the information contained in the notification. Each notification prepared under this section shall be retained by the school or facility for review in accordance with rules adopted under RSA 541-A by the state board of education and the department of health and human services.
126-U:8 Review of Restraint Records by Department of Education.
I. The state board of education shall adopt rules, pursuant to RSA 541-A, relative to:
(a) [Establishing a process for] Periodic, regular review by the department of education of records [of restraint usage kept by schools and] maintained by schools relative to the use of seclusion, force, and restraint.
(b) [Providing a process for complaints and investigations of reports] A process for the department of education’s receipt of complaints and its conduct of investigations of improper use of seclusion, force, and restraint in schools.
II. Beginning November 1, 2010, and each November 1 thereafter, the state board of education shall provide an annual report to the [chairperson of the children and family law committee of the] chairpersons of the education committees of the senate and house of representatives regarding the use of seclusion, force, and restraint in schools. The annual report shall be prepared from the periodic, regular review of such records, and shall include the number and location of reported incidents and the status of any outstanding investigations.
126-U:9 Review of Restraint Records by Department of Health and Human Services.
I. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA?541-A, relative to:
(a) [Establishing a process for] Periodic, regular review of by the department of health and human services of records [of restraint usage kept] maintained by facilities regarding the use of seclusion, force, and restraint. [and providing a process for complaints and investigations of reports]
(b) A process for the department’s receipt of complaints and its conduct of investigations of reports of improper use of seclusion, force, and restraint in facilities, which may be through the department of health and human services, office of the ombudsman, or otherwise.
II. Beginning November 1, 2010, and each November 1 thereafter, the commissioner of the department of health and human services shall provide an annual report to the [chairperson of the children and family law committee of the house of representatives] committees of the house of representatives and the senate with jurisdiction over health and human services and over children and family law, regarding the use of seclusion and force, including restraint in facilities. The annual report shall be based on the periodic, regular review of such records and shall include the number and location of reported incidents and the status of any outstanding investigations.
126-U:10 Injury or Death During Incidents of [Restraint] Seclusion or Use of Force.
I. In cases involving serious injury or death to a child subject to [restraint] seclusion or the use of force in a facility, the facility shall, in addition to the provisions of RSA 126-U:7, notify the commissioner of the department of health and human services, the attorney general, and the state’s federally-designated protection and advocacy agency for individuals with disabilities. Such notice shall include the notification required in RSA 126-U:7, II. The department of health and human services shall annually notify facilities of their responsibilities under this section and provide contact information for the persons to be notified.
II. In cases involving serious injury or death to a child subject to [restraint] seclusion or the use of force in a school, the school shall, in addition to the provisions of RSA 126-U:7, notify the commissioner of the department of education, the attorney general, and the state’s federally-designated protection and advocacy agency for individuals with disabilities. Such notice shall include the written notification required in RSA 126-U:7, II. The department of education shall annually notify schools of their responsibilities under this section and provide contact information for the persons to be notified.
8 New Section; School Review of Restraint and Seclusion Incidents. Amend RSA 126-U by inserting after section 13 the following new section:
126-U:14 School Review Following the Use of Restraint or Seclusion. Upon information that restraint or seclusion has been used for the first time upon a child with a disability as defined in RSA?186-C:2, I or a child who is receiving services under Section 504 of the Rehabilitation Act of 1973, 29 USC section 701, and its implementing regulations, the school shall review the individual educational program and/or Section 504 plan and make such adjustments as are indicated to eliminate or reduce the future use of restraint or seclusion. A parent or guardian of a child with a disability may request such a review at any time following an instance of restraint or seclusion and such request shall be granted if there have been multiple instances of restraint or seclusion since the last review.
9 Rulemaking. The state board of education and department of health and human services shall commence rulemaking under RSA 541-A, as required by RSA 126-U:8 and RSA 126-U:9 of section 7 of this act, no later than 60 days after the effective date of this act. Such rulemaking shall include the modification of existing rules to achieve compliance with this act.
10 Effective Date. This act shall take effect 60 days after its passage.