Bill Text: NJ A587 | 2012-2013 | Regular Session | Introduced
Bill Title: Establishes "Matthew's Law Limiting the Use of Restraints."
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-01-10 - Introduced, Referred to Assembly Human Services Committee [A587 Detail]
Download: New_Jersey-2012-A587-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Assemblywoman L. GRACE SPENCER
District 29 (Essex)
SYNOPSIS
Establishes "Matthew's Law Limiting the Use of Restraints."
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning persons with developmental disabilities, amending and supplementing P.L.1977, c.82 and amending P.L.1983, c.524.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) Sections 5 through 8 of this act shall be known and may be cited as "Matthew's Law Limiting the Use of Restraints."
2. Section 3 of P.L.1977, c.82 (C.30:6D-3) is amended to read as follows:
3. As used in this act and P.L. , c. (C. )(pending before the Legislature as this bill), unless a different meaning clearly appears from the context:
a. "Developmental disability" means a
severe, chronic disability of a person which:
(1) is attributable to a mental or physical impairment or combination of mental or physical impairments;
(2) is manifest before age 22;
(3) is likely to continue indefinitely;
(4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and
(5) reflects the need for a combination and sequence of special inter-disciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to mental retardation, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met;
b. "Services" or "services for persons with developmental disabilities" means specialized services or special adaptations of generic services provided by any public or private agency, organization or institution and directed toward the alleviation of a developmental disability or toward the social, personal, physical, or economic habilitation or rehabilitation of an individual with such a disability; and [such] the term includes diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, training, education, sheltered employment, recreation, counseling of the individual with [such] the disability and of his family, protective and other social and socio-legal services, information and referral services, follow-along services, and transportation services necessary to assure delivery of services to persons with developmental disabilities; [and]
c. "Facility" or "facility for persons with developmental disabilities" means a facility operated by any public or private agency, organization or institution for the provision of services for persons with developmental disabilities;
d. "Aversive technique" means the presentation of stimuli or conditions to decrease the frequency, intensity or duration of maladaptive behavior by inducing distress, discomfort or pain, which may place the individual at some degree of risk of physical or psychological injury;
e. "Commissioner" means the Commissioner of Human Services;
f. "County-based human rights review board" means a group comprised of persons who are not affiliated with a facility or a public or private agency, including, but not limited to, professionals, persons served, a representative from at least one advocacy organization who is available to serve in that county, and other advocates or interested persons from the community at large, whom the commissioner shall appoint in order to review and approve the use of personal control and mechanical restraint pursuant to P.L. , c. (C. )(pending before the Legislature as this bill);
g. "Division" means the Division of Developmental Disabilities in the Department of Human Services;
h. "Emergency" means a situation in which immediate intervention is necessary to protect the physical safety of a person receiving services at a facility or from a public or private agency, or to protect the safety of others from an immediate threat of serious physical injury;
i. "Interdisciplinary team" means an individually constituted group responsible for the development of a single, integrated individual habilitation plan. The team shall consist of: the person receiving services; the legal guardian, the parents or family member, if the adult desires that a parent or family member be present; those persons who work most directly with the person served; and professionals and representatives of service areas who are relevant to the identification of the person's needs and the design and evaluation of programs to meet them;
j. "Mechanical restraint" means the application of a device, at a facility or a public or private agency, that restricts a person's freedom of movement either partially or totally and includes, but is not limited to, a mitt, jumpsuit, arm splint, vest, helmet and body harness; however, the use of a domed or enclosed crib shall be prohibited;
k. "Person with traumatic brain injury" means a person who has sustained an injury, illness or traumatic changes to the skull, the brain contents or its coverings which results in a temporary or permanent physiobiological decrease of cognitive, behavioral, social or physical functioning which causes partial or total disability;
l. "Personal control" means physical contact by facility or public or private agency staff that restricts a person's freedom of movement either partially or totally;
m. "Physical distress" means that person is exhibiting one or more of the following: difficulty in breathing, choking, vomiting, bleeding, fainting, unconsciousness, discoloration, swelling at points of restraint, the appearance of pain, cold extremities, or other medical contraindications;
n. "Public or private agency" means an entity under contract with, licensed by or working in collaboration with the division or Department of Human Services, as appropriate, to provide services for persons with developmental disabilities; and
o. "Safeguarding equipment" means a bedside rail or other device that restricts movement and is used to provide support for the achievement of functional body position or proper balance; a device used for specific medical, dental or surgical treatment; and a device to protect the individual from symptoms of existing medical conditions, including, but not limited to, seizures and ataxia.
(cf: P.L.1985, c.145, s.12)
3. Section 5 of P.L.1977, c.82 (C.30:6D-5) is amended to read as follows:
5. a. No person receiving services for the developmentally disabled at any facility shall:
(1) be subjected to any corporal punishment;
(2) be administered any medication or chemical restraint, except upon the written authorization of a physician when necessary and appropriate as an element of the service being received or as a treatment of any medical or physical condition in conformity with accepted standards for [such] the treatment. The nature, amount of, and reasons for the administration of any medication or chemical restraint shall be promptly recorded in [such] the person's medical record;
(3) be [physically or] chemically restrained or isolated in any manner, except in emergency situations for the control of violent, disturbed or depressed behavior which may immediately result in or has resulted in harm to [such] the person or other person [or in substantial property damage].
The chief administrator of the facility, or his designee, shall be notified immediately upon the application of any [such] chemical restraint or isolation, and thereafter [such] the restraint or isolation shall be continued only upon the written order of the administrator or designee. [Such] The order shall be effective for not more than 24 hours, and may be renewed for additional periods of not more than 24 hours each if the administrator or designee shall determine that [such] the continued restraint or isolation is necessary. While in restraint or isolation, [such] the person shall be checked by an attendant every 15 minutes, and bathed every 24 hours. [Such] The restraint or isolation shall be terminated at any time if an attending physician shall find [such] the restraint or isolation to be medically contraindicated. The nature, duration of, reasons for and notation of attendant checks shall be promptly recorded in [such] the person's medical record;
(4) be subjected to shock treatment, psychosurgery, sterilization or medical behavioral or pharmacological research without the express and informed consent of [such] the person, if a competent adult, or of [such] the person's guardian ad litem specifically appointed by a court for the matter of consent to these proceedings, if a minor or an incompetent adult or a person administratively determined to be mentally deficient. [Such] The consent shall be made in writing and shall be placed in [such] the person's record.
Either the party alleging the necessity of [such] the procedure or [such] the person or [such] the person's guardian ad litem may petition a court of competent jurisdiction to hold a hearing to determine the necessity of [such] the procedure at which the client is physically present, represented by counsel, and provided the right and opportunity to be confronted with and to cross-examine all witnesses alleging the necessity of [such] the procedure. In [such] the proceedings, the burden of proof shall be on the party alleging the necessity of [such] the procedure. In the event that a person cannot afford counsel, the court shall appoint an attorney not less than 10 days before the hearing. An attorney so appointed shall be entitled to a reasonable fee to be determined by the court and paid by the county from which the person was admitted. Under no circumstances may a person in treatment be subjected to hazardous or intrusive experimental research which is not directly related to the specific goals of his treatment program.
b. Every developmentally disabled person in residence at any facility shall be provided with a nutritionally adequate and sufficient diet and shall receive appropriate and sufficient medical and dental care on a regular basis and whenever otherwise necessary.
c. Every developmentally disabled person between the ages of 5 and 21, inclusive, in residence or full-time attendance at any facility shall be provided a thorough and efficient education suited to [such] the person's age and abilities.
(cf: P.L.1977, c.82, s.5)
4. Section 5 of P.L.1983, c.524 (C.30:6D-17) is amended to read as follows:
5. a. The department shall ensure that every developmentally disabled person in a community residential facility receives adequate medical and dental care, a nutritionally adequate diet, a full daily program of structured activities, and those other services which are necessary to maximize the developmental potential of the developmentally disabled person in a manner least restrictive of personal liberty. Every developmentally disabled person shall have adequate protection from abuse and a wholesome environment in which to live.
b. All rights and procedures for the enforcement of rights recognized in sections 4, 5 and 7 of the "Developmentally Disabled Rights Act," P.L.1977, c.82 (C.30:6D-4, 5, 7), and all rights and procedures specified in P.L. , c. (C. )(pending before the Legislature as this bill) shall apply to persons covered by [this act] P.L.1983, c.524 (C.30:6D-13 et seq.).
c. The department shall ensure that:
(1) aversive techniques are not used on a person with traumatic brain injury who is in a community residence licensed under P.L.1977, c.448 (C.30:11B-1 et seq.); and
(2) if personal control or mechanical restraint is used on a person with traumatic brain injury who is in a community residence licensed under P.L.1977, c.448 (C.30:11B-1 et seq.), that use shall be in accordance with the provisions of sections 5 through 7 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.1983, c.524, s.5)
5. (New section) a. Personal control or mechanical restraint may be used in an emergency but shall not be used as a planned intervention in an individual habilitation plan unless:
(1) the interdisciplinary team determines that less intrusive techniques have not been successful in protecting the person or others;
(2) the use of the personal control or mechanical restraint has been reviewed and approved by a county-based human rights review board; and
(3) there is informed consent from the person or his legal guardian.
b. The use of mechanical restraint as safeguarding equipment shall require a prescription by the person's treating physician or another licensed physician.
6. (New section) a. Except as provided in subsection b. of this section, a person receiving services for persons with developmental disabilities at a facility or from a public or private agency shall not be subjected to personal control unless its use in an individual habilitation plan is approved pursuant to section 5 of this act, or an emergency exists that necessitates the use of personal control, and the following conditions are met:
(1) the personal control is used only for the period that is necessary to contain the behavior of the person so that the person no longer poses an immediate threat of causing serious physical injury to himself or others, except that this period shall not exceed one hour;
(2) in the case of an emergency that necessitates the use of personal control, the person's treating physician or the attending physician examines the person not later than one working day immediately after the application of the personal control;
(3) when the personal control is used as a planned intervention in an individual habilitation plan, the person's treating physician or the attending physician examines the person not later than one working day immediately after the application of the personal control, if the person is in physical distress; and
(4) the use of force in the application of personal control does not exceed the force that is reasonable and necessary under the circumstances precipitating the use of personal control.
b. The provisions of subsection a. of this section shall not apply in the case of personal control that is applied to:
(1) assist a person in completing a task if the person does not resist the application of personal control or if the restraint is minimal in intensity and duration;
(2) escort or carry a person to safety if the person is in danger in his present location; or
(3) enable a health care professional to treat the medical needs of the person.
c. Within one working day of the use of personal control on a person in an emergency, the use shall be reported, in accordance with the policy to be established by the division for reporting the use of personal control, which shall include reporting these incidents to the person's parent or legal guardian, the division and the Office of Operations Support, or its successor, in the Department of Human Services.
7. (New section) a. Except as provided in subsection b. of this section, a person receiving services for persons with developmental disabilities at a facility or from a public or private agency shall not be subjected to mechanical restraint unless its use in an individual habilitation plan is approved pursuant to section 5 of this act, or an emergency exists that necessitates the use of mechanical restraint, and the following conditions are met:
(1) in the case of an emergency that necessitates the use of mechanical restraint, the person's treating physician or the attending physician examines the person not later than one working day immediately after the application of the mechanical restraint;
(2) when the mechanical restraint is used as a planned intervention in an individual habilitation plan, the person's treating physician or the attending physician examines the person not later than one working day immediately after the application of the mechanical restraint, if the person is in physical distress;
(3) the mechanical restraint is applied by staff trained in the use and application of the particular restraint;
(4) the person is given the opportunity to move and exercise the parts of his body that are restrained at least 10 minutes for every 60 minutes of restraint;
(5) a member of the staff lessens or discontinues the mechanical restraint every 15 minutes to determine whether the person will stop or control dangerous behavior without the use of the restraint;
(6) the record of the person contains a notation that includes: the time of day that the mechanical restraint was lessened or discontinued pursuant to paragraph (5) of this subsection; the response of the person to the lessening or discontinuation of the restraint; and the action taken by the member of the staff to lessen or discontinue the mechanical restraint, as appropriate;
(7) a member of the staff continuously monitors the person during the time that mechanical restraint is used on the person; and
(8) the mechanical restraint is used only for the period that is necessary to contain the behavior of the person so that the person no longer poses an immediate threat of causing serious physical injury to himself or others.
b. If a medical order authorizing the use of mechanical restraint as safeguarding equipment is first obtained from the person's treating physician for any of the purposes listed in this subsection, the provisions of subsection a. of this section shall not apply when the mechanical restraint is used to:
(1) enable a health care professional to treat the medical needs of the person;
(2) protect a person who is known to be at risk of injury to himself because he lacks coordination or suffers from frequent loss of consciousness;
(3) provide proper body alignment of a person; or
(4) position a person who has physical disabilities in a manner described in the person's individual habilitation plan.
c. Within one working day of the use of mechanical restraint on a person in an emergency, the use shall be reported, in accordance with the policy to be established by the division for reporting the use of mechanical restraint, which shall include reporting these incidents to the person's parent or legal guardian, the division and the Office of Operations Support, or its successor, in the Department of Human Services.
8. (New section) As a condition of licensure, the Department of Human Services shall require that a private facility or agency that provides services for persons with traumatic brain injury shall not:
a. use aversive techniques on a person with traumatic brain injury; and
b. use personal control or mechanical restraint on a person with traumatic brain injury unless that use meets the same requirements as those provided for the use of personal control or mechanical restraint, as applicable, on a person with developmental disabilities pursuant to sections 5 through 7 of this act.
9. Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Commissioner of Human Services shall adopt rules and regulations necessary to effectuate the purposes of this act, including, but not limited to, policies for reporting the use of personal control and mechanical restraint pursuant to the provisions of sections 6 and 7 of this act, respectively.
10. This act shall take effect on the 180th day after enactment, but the Commissioner of Human Services may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act.
STATEMENT
This bill, part of which is designated "Matthew's Law Limiting the Use of Restraints," is intended to reduce the use of personal control and mechanical restraint on persons with developmental disabilities.
The bill provides that personal control or mechanical restraint of a person with developmental disabilities may be used in an emergency but may not be used as a planned intervention in an individual habilitation plan unless:
· the interdisciplinary team determines that less intrusive techniques have not been successful in protecting the person or others;
· the use of the personal control or mechanical restraint has been reviewed and approved by a county-based human rights review board; and
· there is informed consent from the person or his legal guardian.
The bill also outlines specific conditions which must be met before personal control or mechanical restraint may be used, as well as the particular circumstances under which those restrictions may be waived.
The bill further specifies that any use of personal control or mechanical restraint be reported within one working day to the patient's parent or legal guardian, the Division of Developmental Disabilities and the Office of Operations Support in the Department of Human Services.
Finally, the bill provides that, as a condition of licensure, a private facility or agency that provides services for persons with traumatic brain injury is prohibited from using aversive techniques on persons with traumatic brain injury, and from using personal control or mechanical restraint, unless that use meets the same requirements as those provided under this bill for the use of personal control or mechanical restraint on a person with developmental disabilities.
