CHAPTER He-C 900 CHILD RESTRAINT AND SECLUSION PRACTICES
PART 901
LIMITATIONS ON CHILD RESTRAINT AND SECLUSION PRACTICES
He-C
901.01 Purpose.
(a) The purpose of this part is to set forth the
uniform standards and requirements for how the department reviews records
maintained by facilities regarding the use of seclusion and restraint as
described in RSA 126-U:9, I(a).
(b) This part also establishes a uniform process
for how the department receives and investigates complaints of improper use of
seclusion and restraint in facilities as described in RSA 126-U:9, I(b).
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He-C
901.02 Scope. This part shall apply to facilities as
defined in RSA 126-U:1, III and foster family homes as defined in RSA 170-E:25,
II(a).
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He-C
901.03 Definitions.
(a) “Child” means “child” as defined in RSA
126-U:1, I.
(b) “Commissioner” means the commissioner of the
department of health and human services, or his or her designee.
(c) “Department” means the department of health
and human services, or its designee.
(d) “Facility” means “facility” as defined in RSA
126-U:1, III.
(e) “Foster family home” means “foster family
home” as defined in RSA 170-E:25, II(a).
(f)
“Investigator” means the individual assigned by the department who reviews
complaints filed pursuant to RSA 126-U.
(g) “Restraint” means “restraint” as defined in
RSA 126-U:1, IV.
(h) “Seclusion” means “seclusion” as defined in
RSA 126-U:1, V-a.
(i) “Serious injury” means “serious injury” as
defined in RSA 126:U:1, VI.
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He-C 901.04 Written Policy Requirements.
(a) Each facility, with the exception of foster
family homes, shall have a written policy and procedures for supporting
children and managing the behavior of children consistent with RSA 126-U.
(b) The written policy in (a) above shall, at a
minimum:
(1) Describe how and under what circumstances
seclusion or restraint is used;
(2) Be provided annually to the parent, guardian,
or legal representative of each child at any facility; and
(3) Be made available, upon request, to the
department or the review committee, as described in He-C 901.10.
(c) Foster family homes shall comply with the
requirements in He-C 6446.
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He-C
901.05 Duty to Report and
Record-Keeping Requirements for Facilities Other Than Foster Family Homes.
(a) Unless prohibited by a court order, the
director of the facility, or his or her designee, shall verbally notify the
child’s parent, guardian, or legal representative as soon as possible whenever
seclusion or restraint has been used on a child.
(b) The notification in (a) above shall be made:
(1) In a manner which provides actual notice to
the parent, guardian, or legal representative, which means making direct
contact or receiving confirmation that an electronic notification has been
received; and
(2) No later than the end of the business day.
(c) A facility employee who uses seclusion or
restraint, or, if the employee is unable, his or her supervisor, shall
immediately verbally notify the director of the facility, or his or her
designee, of the occurrence.
(d) Within 5 business days of the occurrence, the
employee or, if the employee is unable, his or her supervisor, shall submit a
written notification to the director or his or her designee.
(e) The written notification in (d) above shall
include the following information, pursuant to RSA 126-U:7, II:
(1) The date, time, and duration of the use of
seclusion or restraint;
(2) A description of the actions of the child
before, during, and after the occurrence;
(3) A description of any other relevant events
preceding the use of seclusion or restraint, including the justification for
initiating the use of restraint;
(4) The names of the persons involved in the
occurrence;
(5) A description
of the actions of the facility employees involved before, during, and after the
occurrence;
(6) A description of any interventions used prior
to the use of the seclusion or restraint;
(7) A description of the seclusion or restraint
used, including any hold used and the reason the hold was necessary;
(8) 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 or restraint;
(9) A description of any property damage
associated with the occurrence;
(10) A description of actions taken to address the
emotional needs of the child during and following the incident;
(11) A description of future actions to be taken
to control the child's problem behaviors;
(12) The name and position of the employee completing
the notification; and
(13) The anticipated date of the final report by
the facility detailing the information in (1) through (12) above.
(f)
Unless prohibited by court order, the
director of the facility, or his or her designee, shall, within 2 business days
of receipt of the notification required in (d) above, send the information
contained in the notification to the child’s parent, guardian, or legal
representative.
(g) The notification in (d) above shall be
retained by the facility for review by the department in accordance with RSA
126-U:9.
(h) In cases involving death or serious injury to
a child subject to restraint or seclusion, facilities shall immediately alert
law enforcement of the incident;
(i) In addition to (h) above, the facility shall
immediately notify the department and follow any procedures outlined in the
facility’s policies or procedures pursuant to He-C 901.04(b).
(j) In addition to (h) above, the facility shall
within 5 business days of the death or serious injury, submit a written report
to the commissioner, the attorney general, and the disability rights center.
(k) The written report in (j) above shall:
(1) Adhere to the notice requirements in (e)
above; and
(2) Be retained by the facility for review by the
department in accordance with RSA 126-U:9.
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He-C
901.06 Duty to Report Requirements
for Foster Family Homes.
(a)
An individual in a foster family home who
uses seclusion or restraint on a child shall verbally notify the department’s
foster care and adoption services unit as soon as possible after the
occurrence.
(b) An individual in a foster family home who
uses seclusion or restraint on a child shall within 5 business days submit a
written notification to the department.
(c) The notifications in (a) and (b) above shall:
(1) Conform to the notice requirements in He-C
901.05(e); and
(2) Be retained by
the foster family home for review by the department in accordance with RSA
126-U:7-a.
(d) Unless prohibited by a court order, the
department or the foster family home shall verbally notify the child’s parent,
guardian, or legal representative as soon as possible whenever seclusion or
restraint has been used on a child.
(e) Unless prohibited by court order, the
department shall, within 5 business days of receipt of the notification
required in (b) above, send the information contained in the notification to
the child’s parent, guardian, or legal representative.
(f) In cases involving death or serious injury to
a child subject to restraint or seclusion, the foster family home shall
immediately alert law enforcement of the incident.
(g) In addition to (f) above, the facility shall
immediately notify the department and follow any procedures outlined in their
respective rules.
(h) In addition to (f) above, the foster family home
shall, within 5 business days of the death or serious injury, submit a written
report to the commissioner, the attorney general, and the disability rights
center.
(i) The written report in (h) above shall:
(1) Adhere to the notice requirements in He-C
901.05(e); and
(2) Be retained by the foster family home for
review by the department in accordance with RSA 126-U:7-a.
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He-C
901.07 Annual Reporting Requirement.
(a) Facilities, other than foster family homes,
shall submit an annual report to the department, by August 1st of each year, of
any record(s) of seclusion and restraint usage from the prior fiscal year,
unless the department, its rules, or contracts require a more frequent
submission.
(b) The report in (a) above shall include, at a
minimum, the number of reported incidents of restraint and seclusion usage, by
month.
(c) Foster family homes shall report according to
He-C 901.06.
(d) The department shall compile the reports from
(a) and (c) above and shall file an annual report pursuant to RSA 126-U:9, II.
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He-C
901.08 Review of Restraint and
Seclusion Usage Records.
(a) The department shall review the restraint and
seclusion usage data reported in He-C 901.07.
(b) Pursuant to RSA 126-U:9, the department shall
conduct periodic, regular review of records maintained by facilities regarding
the use of seclusion and restraint.
(c) As part of the periodic, regular review of
records in (b) above, the department shall convene a review committee comprised of a minimum of 2
individuals designated by the commissioner.
(d) The review committee in (c) above shall
select a sample of 25 records maintained pursuant to RSA 126-U. The review
committee may review all facility records should it find it necessary to
determine whether each facility is in compliance with the requirements of RSA
126-U and He-C 900.
(e) As part of the review, the facility shall
make its policies, as outlined in He-C 901.04, available to the review
committee.
(f) Each facility’s records shall be subject to
an annual review by the review committee in (c) above. Additional review shall
be conducted at the review committee’s request, and at regular intervals during
a facility’s licensure or certification renewal process, as applicable, or as
part of the annual inspection of the facility.
(g) The review committee shall examine the
records to determine whether each facility is in compliance with the
requirements of RSA 126-U and He-C 900.
(h) Within 45 calendar days of the completion of
its review of a facility’s records, the review committee shall submit a written
report to the department.
(i) The report shall contain, at a minimum:
(1) The name of the facility;
(2) The date of the review;
(3) The total number of records reviewed;
(4) The date range of the records reviewed;
(5) The total number of reports of seclusion and
restraints;
(6) The total number of improper use of seclusion
and restraints;
(7) Whether the review committee finds improper
use of seclusion and restraint by the facility and recommends that the
department requests a corrective action plan;
(8) Whether the facility has a written policy
regarding seclusion and restraints that is in compliance with He-C 901.04;
(9) Whether the facility is in compliance with
its policies; and
(10) Whether the
facility is in compliance with its duty to report and its record keeping
requirements under He-C 901.05,
He-C 901.06, and He-C 901.07.
(j) Facilities shall permit the disability rights
center access to its seclusion and restraint reports.
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He-C
901.09 Complaints Procedure.
(a) Any individual may file a complaint with the
office of the ombudsman pursuant to RSA 126-A:4, III alleging a facility is in
violation of RSA 126-U and He-C 901.
(b) If a complaint is filed by an individual, on
behalf of a facility or a foster family home, the written complaint shall
adhere to the notice requirements in He-C 901.05 or He-C 901.06.
(c) For all other complainants, the oral or
written complaint shall contain the following information:
(1) The date or approximate date of the alleged
incident;
(2) The location of the alleged incident;
(3) The name of the child or children subject to
the alleged restraint or seclusion, if known;
(4) The name of the facility employee or foster
family home individual alleged to have restrained or secluded the child or
children, if known;
(5) A description of the alleged restraint or
seclusion;
(6) The date of complaint; and
(7) The name of complainant if the complainant is
willing to disclose his or her name.
(d) If a complainant requests
to keep his or her identity confidential throughout the complaint process, the
complainant’s identity
shall not be disclosed except as necessary to resolve the complaint, or as
required by law.
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He-C
901.10 Review of Complaints.
(a) Unless filed with the office of the ombudsman
pursuant to RSA 126-A:4, III, the complaint outlined in He-C 901.09 shall be reviewed and investigated by the
following:
(1) For a facility as defined in RSA 126-U:1, III
(a) through (c), the division of children, youth, and families (DCYF) central
intake;
(2) For a facility as defined in RSA 126-U:1, III
(d)(1), (2), and (3), the New Hampshire hospital, office of patient experience;
(3) For a facility as defined in RSA 126-U:1, III
(d)(4) and (5), the office of client and legal services; and
(4) For a facility as defined in RSA 126-U:1, III
(e) and (f), the health facilities administration.
(b)
The investigator
shall not be affiliated with any person involved in the complaint.
(c)
If the
complaint is filed by an individual other than a parent, guardian, or legal
representative, the investigator shall notify the parent, guardian, or legal
representative that a complaint has been filed on behalf of the child pursuant
to RSA 126-U:7, I and RSA 126-U:7-a.
(d)
The
investigator shall review and accept the complaint for investigation, if the
alleged facts, if true, would constitute an improper use of seclusion and
restraint under RSA 126-U.
(e)
If the complaint of improper use of seclusion and restraint under RSA
126-U is unfounded, the investigator
shall deny the complaint and notify the complainant.
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He-C
901.11 Investigative Process.
(a)
If a complaint
is accepted, the investigator shall:
(1) For cases involving serious injury or death,
determine whether the allegations shall be referred to law enforcement for
investigation as mandated by RSA 169-C:29;
(2) For cases involving allegations of abuse and
neglect, make reports as required under RSA 169-C:29;
(3) Contact individuals and examine records and
other documents that are reasonably necessary to investigate whether any
violation of RSA 126-U occurred;
(4) Review findings of facts from other
investigative agencies, if applicable;
(5) Review any protective measures for the child
that the facility or foster family home has put in place before or after the
complaint; and
(6) If no protective measures have been put in
place, require the facility or foster family home to develop procedures to
protect the child.
(b)
Once the investigator completes the investigation, he or she shall file
a written report with the appropriate department program, as outlined in He-C
901.10, within 30 calendar days, including findings of fact, specifying the specific
grounds, listed in RSA 126-U, upon which the findings are based and any appropriate remedial
measures that address physical and other injuries, protect against retaliation,
and reduce the incidence of violence pursuant to the intent of RSA 126-U.
(c)
The investigator
shall request an extension of time for good cause if a circumstance occurred
beyond a person’s control that prevents that person from taking some required
action, including:
(1) Coordination of investigations with other agencies;
(2) Unavailability of witnesses; or
(3) Any other compelling reason or justification.
(d)
A request for an extension of time shall be submitted, in writing, to the
commissioner’s office prior to the expiration of the 30 calendar days outlined
in (b) above.
(e)
If the commissioner determines that good cause has been shown, a 30-day
extension shall be granted.
(f)
Any additional
extension of time shall be granted by the commissioner if the commissioner
determines that such extension would be in the best interest of the parties
involved.
(g)
The written report in (b) above shall include the following, as
necessary:
(1) Appropriate remedial measures to address
physical or other injuries;
(2) Appropriate remedial measures to address
protection against retaliation; and
(3) Appropriate remedial measures to reduce the
incidence of violations of RSA 126-U including, but not limited to:
a. Training of an individual or a group of facility employees;
b. Revision of facility policies and procedures;
c. Revision of facility notice and record keeping practices; and
d. Compliance with conditions of restraint and seclusion pursuant
to RSA 126-U:4, RSA 126-U:5, RSA 126-U:5-a, and RSA 126-U:5-b.
(h)
The written report in (b) above shall be provided to the director of any
facility, or foster family home, found to be in non-compliance with RSA
126-U.
(i)
A disposition of the investigator’s report shall be provided to the
child’s parent, guardian, or legal representative pursuant to RSA 126-U:7 and
RSA 126-U:7-a in compliance with federal and state law.
(j)
If a facility has been found to be in non-compliance with RSA 126-U, the
appropriate department program, as outlined in He-C 901.10, shall institute
disciplinary proceedings pursuant to its respective administrative rules.
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APPENDIX
Rule |
Specific State Statute the Rule Implements |
He-C 901.01 |
RSA 126-U:9, I(a); RSA 126-U:9,
I(b) |
He-C 901.02 |
RSA 126-U:1, III; RSA 170-E:25, II(a) |
He-C 901.03 |
RSA 126-U:1; RSA 170-E:25,
II(a) |
He-C 901.04 |
RSA 126-U:2; He-C 6446 |
He-C 901.05 |
RSA 126-U:7; RSA 126-U:9 |
He-C 901.06 |
RSA 126-U:7-a; He-C 901.05(e) |
He-C 901.07 |
RSA 126-U:9; He-C 901.06. |
He-C 901.08 |
RSA 126-U:9 |
He-C 901.09 |
RSA 126-A:4,; RSA 126-U:9 |
He-C 901.10 |
RSA 126-A:4, III; RSA
126-U:1; RSA 125-U:7; RSA 126-U:7-a |
He-C 901.11 |
RSA 169-C:29; RSA 126-U:4,
RSA 126-U:5, RSA 126-U:5-a and RSA 126-U:5b; RSA 126-U:9 |