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U.S. Code as of:
01/19/04
Section 290jj. Requirement relating to the rights of residents of certain non-medical, community-based facilities for children and youth
(a) Protection of rights
(1) In general
A public or private non-medical, community-based facility for
children and youth (as defined in regulations to be promulgated
by the Secretary) that receives support in any form from any
program supported in whole or in part with funds appropriated
under this chapter shall protect and promote the rights of each
resident of the facility, including the right to be free from
physical or mental abuse, corporal punishment, and any restraints
or involuntary seclusions imposed for purposes of discipline or
convenience.
(2) Nonapplicability
Notwithstanding this part, a facility that provides inpatient
psychiatric treatment services for individuals under the age of
21, as authorized and defined in subsections (a)(16) and (h) of
section 1905 of the Social Security Act [42 U.S.C. 1396d], shall
comply with the requirements of part H of this subchapter.
(3) Applicability of Medicaid provisions
A non-medical, community-based facility for children and youth
funded under the Medicaid program under title XIX of the Social
Security Act [42 U.S.C. 1396 et seq.] shall continue to meet all
existing requirements for participation in such program that are
not affected by this part.
(b) Requirements
(1) In general
Physical restraints and seclusion may only be imposed on a
resident of a facility described in subsection (a) of this
section if -
(A) the restraints or seclusion are imposed only in emergency
circumstances and only to ensure the immediate physical safety
of the resident, a staff member, or others and less restrictive
interventions have been determined to be ineffective; and
(B) the restraints or seclusion are imposed only by an
individual trained and certified, by a State-recognized body
(as defined in regulation promulgated by the Secretary) and
pursuant to a process determined appropriate by the State and
approved by the Secretary, in the prevention and use of
physical restraint and seclusion, including the needs and
behaviors of the population served, relationship building,
alternatives to restraint and seclusion, de-escalation methods,
avoiding power struggles, thresholds for restraints and
seclusion, the physiological and psychological impact of
restraint and seclusion, monitoring physical signs of distress
and obtaining medical assistance, legal issues, position
asphyxia, escape and evasion techniques, time limits, the
process for obtaining approval for continued restraints,
procedures to address problematic restraints, documentation,
processing with children, and follow-up with staff, and
investigation of injuries and complaints.
(2) Interim procedures relating to training and certification
(A) In general
Until such time as the State develops a process to assure the
proper training and certification of facility personnel in the
skills and competencies referred (!1) in paragraph (1)(B), the
facility involved shall develop and implement an interim
procedure that meets the requirements of subparagraph (B).
(B) Requirements
A procedure developed under subparagraph (A) shall -
(i) ensure that a supervisory or senior staff person with
training in restraint and seclusion who is competent to
conduct a face-to-face assessment (as defined in regulations
promulgated by the Secretary), will assess the mental and
physical well-being of the child or youth being restrained or
secluded and assure that the restraint or seclusion is being
done in a safe manner;
(ii) ensure that the assessment required under clause (i)
take place as soon as practicable, but in no case later than
1 hour after the initiation of the restraint or seclusion;
and
(iii) ensure that the supervisory or senior staff person
continues to monitor the situation for the duration of the
restraint and seclusion.
(3) Limitations
(A) In general
The use of a drug or medication that is used as a restraint
to control behavior or restrict the resident's freedom of
movement that is not a standard treatment for the resident's
medical or psychiatric condition in nonmedical community-based
facilities for children and youth described in subsection
(a)(1) of this section is prohibited.
(B) Prohibition
The use of mechanical restraints in non-medical,
community-based facilities for children and youth described in
subsection (a)(1) of this section is prohibited.
(C) Limitation
A non-medical, community-based facility for children and
youth described in subsection (a)(1) of this section may only
use seclusion when a staff member is continuously face-to-face
monitoring the resident and when strong licensing or
accreditation and internal controls are in place.
(c) Rule of construction
(1) In general
Nothing in this section shall be construed as prohibiting the
use of restraints for medical immobilization, adaptive support,
or medical protection.
(2) Current law
This part shall not be construed to affect or impede any
Federal or State law or regulations that provide greater
protections than this part regarding seclusion and restraint.
(d) Definitions
In this section:
(1) Mechanical restraint
The term "mechanical restraint" means the use of devices as a
means of restricting a resident's freedom of movement.
(2) Physical escort
The term "physical escort" means the temporary touching or
holding of the hand, wrist, arm, shoulder or back for the purpose
of inducing a resident who is acting out to walk to a safe
location.
(3) Physical restraint
The term "physical restraint" means a personal restriction that
immobilizes or reduces the ability of an individual to move his
or her arms, legs, or head freely. Such term does not include a
physical escort.
(4) Seclusion
The term "seclusion" means a behavior control technique
involving locked isolation. Such term does not include a time
out.
(5) Time out
The term "time out" means a behavior management technique that
is part of an approved treatment program and may involve the
separation of the resident from the group, in a non-locked
setting, for the purpose of calming. Time out is not seclusion.
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