RULES AND REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS

 

http://www.dmhmrsas.virginia.gov/documents/HumanRights/OHR-RevisedRegulations.pdf

12VAC35-115-110. Use of seclusion, restraint, and time out.

A. Each individual is entitled to be completely free from any unnecessary use of seclusion,

restraint, or time out.

B. The voluntary use of mechanical supports to achieve proper body position, balance, or

alignment so as to allow greater freedom of movement or to improve normal body functioning in

a way that would not be possible without the use of such a mechanical support, and the

voluntary use of protective equipment are not considered restraints.

C. The provider’s duties.

1. Providers shall meet with the individual or his authorized representative upon

admission to the service to discuss and document in the individual’s services record, his

preferred interventions in the event his behaviors or symptoms become a danger to

himself or others and under what circumstances, if any, the intervention may include

seclusion, restraint, or time out.

2. Providers shall document in the individual’s services record all known

contraindications to the use of seclusion, time out, or any form of physical or mechanical

restraint, including medical contraindications and a history of trauma and shall flag the

record to alert and communicate this information to staff.

3. Only residential facilities for children that are licensed under the Regulations for

Providers of Mental Health, Mental Retardation, and Substance Abuse Residential

Services for Children (12VAC35-45) and inpatient hospitals may use seclusion and only

in an emergency.

4. Providers shall not use seclusion, restraint, or time out as a punishment or reprisal or

for the convenience of staff.

5. Providers shall not use seclusion or restraint solely because criminal charges are

pending against the individual.

6. Providers shall not use seclusion or restraint for any behavioral, medical, or protective

purpose unless other less restrictive techniques have been considered and

documentation is placed in the individual’s services plan that these less restrictive

techniques did not or would not succeed in reducing or eliminating behaviors that are

self-injurious or dangerous to other people or that no less restrictive measure was

possible in the event of a sudden emergency.

7. Providers that use seclusion, restraint, or time out shall develop written policies and

procedures that comply with applicable federal and state laws and regulations,

accreditation, and certification standards, third party payer requirements, and sound

therapeutic practice. These policies and procedures shall include at least the following

requirements:

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a. Individuals shall be given the opportunity for motion and exercise, to eat at normal

meal times and take fluids, to use the restroom, and to bathe as needed.

b. Trained, qualified staff shall monitor the individual’s medical and mental condition

continuously while the restriction is being used.

c. Each use of seclusion, restraint, or time out shall end immediately when criteria for

removal are met.

d. Incidents of seclusion and restraint, including the rationale for and the type and

duration of the restraint, are reported to the department as provided in 12VAC35-

115-230 C.

8. Providers shall submit all proposed seclusion, restraint, and time out policies and

procedures to the LHRC for review and comment before implementing them, when

proposing changes, or upon request of the human rights advocate, the LHRC, or the

SHRC.

9. Providers shall comply with all applicable state and federal laws and regulations,

certification and accreditation standards, and third party requirements as they relate to

seclusion and restraint.

a. Whenever an inconsistency exists between these regulations and federal laws or

regulations, accreditation or certification standards, or the requirements of third party

payers, the provider shall comply with the higher standard.

b. Providers shall notify the department whenever a regulatory, accreditation, or

certification agency or third party payer identifies problems in the provider’s

compliance with any applicable seclusion and restraint standard.

10. Providers shall ensure that only staff who have been trained in the proper and safe

use of seclusion, restraint, and time out techniques may initiate, monitor, and

discontinue their use.

11. Providers shall ensure that a qualified professional who is involved in providing

services to the individual reviews every use of physical restraint as soon as possible

after it is carried out and document the results of his review in the individual’s services

record.

12. Providers shall ensure that review and approval by a qualified professional for the

use or continuation of restraint for medical or protective purposes is documented in the

individual’s services record. Documentation includes:

a. Justification for any restraint;

b. Time-limited approval for the use or continuation of restraint; and

c. Any physical or psychological conditions that would place the individual at greater

risk during restraint.

13. Providers may use seclusion or mechanical restraint for behavioral purposes in an

emergency only if a qualified professional involved in providing services to the individual

has, within one hour of the initiation of the procedure:

a. Conducted a face-to-face assessment of the individual placed in seclusion or

mechanical restraint and documented that alternatives to the proposed use of

seclusion or mechanical restraint have not been successful in changing the behavior

or were not attempted, taking into account the individual’s medical and mental

condition, behavior, preferences, nursing and medication needs, and ability to

function independently;

b. Determined that the proposed seclusion or mechanical restraint is necessary to

protect the individual or others from harm, injury, or death;

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c. Documented in the individual’s services record the specific reason for the

seclusion or mechanical restraint;

d. Documented in the individual’s services record the behavioral criteria that the

individual must meet for release from seclusion or mechanical restraint; and

e. Explained to the individual, in a way that he can understand, the reason for using

mechanical restraint or seclusion, the criteria for its removal, and the individual’s right

to a fair review of whether the mechanical restraint or seclusion was permissible.

14. Providers shall limit each approval for restraint for behavioral purposes or seclusion

to four hours for individuals age 18 and older, two hours for children and adolescents

ages 9 through 17, and one hour for children under age nine.

15. Providers shall not issue standing orders for the use of seclusion or restraint for

behavioral purposes.

16. Providers shall ensure that no individual is in time out for more than 30 minutes per

episode.

17. Providers shall monitor the use of restraint for behavioral purposes or seclusion

through continuous face-to-face observation, rather than by an electronic surveillance

device.

18. Providers may use restraint or time out in a behavioral treatment plan to address

behaviors that present an immediate danger to the individual or others, but only after a

qualified professional has conducted a detailed and systematic assessment of the

behavior and the situations in which the behavior occurs.

a. Providers shall develop any behavioral treatment plan involving the use of restraint

or time out for behavioral purposes according to its policies and procedures, which

ensure that:

(1) Behavioral treatment plans are initiated, developed, carried out, and monitored by

professionals who are qualified by expertise, training, education, or credentials to do

so.

(2) Behavioral treatment plans include nonrestrictive procedures and environmental

modifications that address the targeted behavior.

(3) Behavioral treatment plans are submitted to and approved by an independent

review committee comprised of professionals with training and experience in applied

behavior analysis who have assessed the technical adequacy of the plan and data

collection procedures.

b. Providers shall document in the individual’s services record that the lack of

success, or probable success, of less restrictive procedures attempted and the risks

associated with not treating the behavior are greater than any risks associated with

the use of restraint.

c. Prior to the implementation of any behavioral treatment plan involving the use of

restraint or time out, the provider shall obtain approval of the LHRC. If the LHRC

finds that the plan violates or has the potential to violate the rights of the individual,

the LHRC shall notify and make recommendations to the director.

d. Behavioral treatment plans involving the use of restraint or time out shall be

reviewed quarterly by the independent review committee and by the LHRC to

determine if the use of restraint has resulted in improvements in functioning of the

individual.

19. Providers may not use seclusion in a behavioral treatment plan.