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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0221.01 MN HOUSE BILL 98­1161

STATE OF COLORADO

BY REPRESENTATIVES Keller and Mace;

also SENATOR Wham.

HEWI

A BILL FOR AN ACT

CONCERNING THE PROTECTION OF PERSONS FROM RESTRAINT.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Establishes minimum standards for the use of restraint on persons in certain facilities. Defines "restraint", "emergency", and "agency". Specifies the duties of an agency when applying restraint. Requires that agency staff be appropriately trained. Requires agencies to document all circumstances surrounding any type of restraint. Provides a review process for the use of restraint. Requires agencies to adopt regulations for the procedure of using restraint.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Title 26, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read:

ARTICLE 20

Protection of Persons from Restraint

26­20­101.  Short title.  THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS THE "PROTECTION OF PERSONS FROM RESTRAINT ACT".

26­20­102.  Legislative declaration. (1)  THE GENERAL ASSEMBLY HEREBY FINDS THAT, ALTHOUGH MANY STATE AGENCIES HAVE IMPLEMENTED POLICIES AND PROCEDURES TO ENSURE PROTECTION OF PERSONS FROM RESTRAINT IN STATE­OPERATED OR STATE­LICENSED FACILITIES, MINIMUM STATE STANDARDS CONCERNING THE USE OF SUCH RESTRAINT WOULD SATISFY THE STATE'S INTEREST IN PROTECTING ITS CITIZENS FROM UNNECESSARY OR IMPROPER INTERVENTIONS AND PROTECTING STAFF IN STATE­OPERATED AND STATE­LICENSED FACILITIES FROM THE UNINTENDED CONSEQUENCES OF IMPROPER USE OF RESTRAINT.

(2)  THEREFORE, THE GENERAL ASSEMBLY FINDS AND DECLARES THAT IT IS IN THE STATE'S INTEREST TO SET MINIMUM STANDARDS FOR THE USE OF RESTRAINT ON PERSONS IN STATE­OPERATED OR STATE­LICENSED FACILITIES, ACKNOWLEDGING THAT MANY STATE­OPERATED AND STATE­LICENSED FACILITIES HAVE ALREADY IMPLEMENTED POLICIES THAT ESTABLISH STANDARDS PROVIDING GREATER PROTECTION FOR SUCH PERSONS.

26­20­103.  Definitions.  AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(1) (a)  "AGENCY" MEANS:

(I)  ANY AGENCY OF THE STATE, A COUNTY, A CITY AND COUNTY, A MUNICIPALITY, OR A POLITICAL SUBDIVISION OF THE STATE;

(II)  ANY PUBLIC OR PRIVATE ENTITY THAT HAS ENTERED INTO A CONTRACT FOR SERVICES WITH AN ENTITY DESCRIBED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH (a);

(III)  ANY PRIVATE ENTITY AUTHORIZED PURSUANT TO STATE LAW TO PROVIDE RESIDENTIAL CARE SERVICES TO CITIZENS OF THE STATE, INCLUDING BUT NOT LIMITED TO PERSONAL CARE BOARDING HOMES AUTHORIZED PURSUANT TO ARTICLE 27 OF TITLE 25, C.R.S., AND GROUP HOMES AUTHORIZED PURSUANT TO SECTION 30­28­115, C.R.S.

(b)  "AGENCY" DOES NOT INCLUDE:

(I)  THE DEPARTMENT OF CORRECTIONS OR ANY PUBLIC OR PRIVATE ENTITY THAT HAS ENTERED INTO A CONTRACT FOR SERVICES WITH SUCH DEPARTMENT;

(II)  ANY LAW ENFORCEMENT AGENCY OF THE STATE OR A POLITICAL SUBDIVISION OF THE STATE;

(III)  A JUVENILE PROBATION DEPARTMENT OR DIVISION AUTHORIZED PURSUANT TO SECTION 19­2­204, C.R.S.;

(IV)  ANY COUNTY DEPARTMENT OF SOCIAL SERVICES ENGAGED IN PERFORMANCE OF DUTIES PURSUANT TO PART 3 OF ARTICLE 3 OF TITLE 19, C.R.S.

(2)  "CHEMICAL RESTRAINT" MEANS GIVING AN INDIVIDUAL MEDICATION INVOLUNTARILY FOR THE PURPOSE OF RESTRAINING THAT INDIVIDUAL; EXCEPT THAT "CHEMICAL RESTRAINT" DOES NOT INCLUDE THE INVOLUNTARY ADMINISTRATION OF MEDICATION PURSUANT TO SECTION 27­10­111 (4.5), C.R.S., OR TO PREVENT THE IMMEDIATE AND IRREVERSIBLE DETERIORATION OF THE INDIVIDUAL DUE TO A PSYCHOTIC EPISODE.

(3)  "EMERGENCY" MEANS THE OCCURRENCE OF, OR SERIOUS THREAT OF, EXTREME VIOLENCE, PERSONAL INJURY, OR ATTEMPTED SUICIDE WHERE THERE IS A SUBSTANTIAL RISK OF SERIOUS SELF­DESTRUCTIVE BEHAVIOR, THE OCCURRENCE OF SERIOUS SELF­DESTRUCTIVE BEHAVIOR, A SUBSTANTIAL RISK OF SERIOUS PHYSICAL ASSAULT, OR THE OCCURRENCE OF SERIOUS PHYSICAL ASSAULT. "SUBSTANTIAL RISK", AS USED IN THIS SUBSECTION (3), MEANS SERIOUS IMMINENT DANGER OR THREAT OF BODILY HARM, WHERE THERE IS PRESENT ABILITY TO EFFECT SUCH HARM.

(4)  "MECHANICAL RESTRAINT" MEANS A PHYSICAL DEVICE USED TO RESTRICT THE MOVEMENT OF AN INDIVIDUAL OR THE MOVEMENT OR NORMAL FUNCTION OF A PORTION OF HIS OR HER BODY.

(5)  "PHYSICAL RESTRAINT" MEANS THE USE OF BODILY, PHYSICAL FORCE TO LIMIT AN INDIVIDUAL'S FREEDOM OF MOVEMENT, USING NO MORE FORCE THAN IS NECESSARY TO LIMIT SUCH MOVEMENT.

(6)  "RESTRAINT" MEANS ANY METHOD OR DEVICE USED TO LIMIT FREEDOM OF MOVEMENT OR ALTER COGNITIVE ABILITIES, INCLUDING BUT NOT LIMITED TO BODILY PHYSICAL FORCE, MECHANICAL DEVICES, OR CHEMICALS. "RESTRAINT" INCLUDES A CHEMICAL RESTRAINT, A MECHANICAL RESTRAINT, A PHYSICAL RESTRAINT, AND SECLUSION. "RESTRAINT" DOES NOT INCLUDE:

(a)  THE USE OF PROTECTIVE DEVICES FOR PROVIDING PHYSICAL SUPPORT, PREVENTION OF ACCIDENTAL INJURY, OR MEDICAL PURPOSES FOLLOWING A MEDICAL PROCEDURE PURSUANT TO A PHYSICIAN'S ORDER;

(b)  THE HOLDING OF AN INDIVIDUAL FOR LESS THAN FIVE MINUTES BY A STAFF PERSON IN A FIRM BUT GENTLE MANNER AND FOR PROTECTION OF THE INDIVIDUAL OR OTHER PERSONS;

(c)  PLACEMENT OF AN INPATIENT OR RESIDENT IN HIS OR HER ROOM FOR THE NIGHT; OR

(d)  THE USE OF TIME­OUT AS MAY BE DEFINED BY WRITTEN POLICIES, RULES, OR PROCEDURES OF AN AGENCY.

(7)  "SECLUSION" MEANS THE INVOLUNTARY PLACEMENT OF A PERSON ALONE IN A ROOM FROM WHICH EGRESS IS PREVENTED.

26­20­104.  Basis for use of restraint. (1)  SUBJECT TO THE PROVISIONS OF THIS ARTICLE, AN AGENCY MAY ONLY USE RESTRAINT:

(a)  IN CASES OF EMERGENCY; AND

(b) (I)  AFTER THE FAILURE OF LESS RESTRICTIVE ALTERNATIVES; OR

(II)  AFTER A DETERMINATION THAT SUCH ALTERNATIVES WOULD BE INAPPROPRIATE OR INEFFECTIVE UNDER THE CIRCUMSTANCES.

(2)  AN AGENCY THAT USES RESTRAINT PURSUANT TO THE PROVISIONS OF SUBSECTION (1) OF THIS SECTION SHALL USE SUCH RESTRAINT:

(a)  FOR THE PURPOSE OF PREVENTING THE CONTINUATION OR RENEWAL OF SUCH EMERGENCY; AND

(b)  FOR THE PERIOD OF TIME NECESSARY TO ACCOMPLISH ITS PURPOSE.

(3) (a)  THE GENERAL ASSEMBLY RECOGNIZES THAT SKILLED NURSING AND NURSING CARE FACILITIES ARE SUBJECT TO FEDERAL STATUTES AND REGULATIONS CONCERNING THE USE OF RESTRAINT IN SUCH FACILITIES THAT AFFORD PROTECTIONS FROM RESTRAINT IN A MANNER CONSISTENT WITH THE PURPOSES AND POLICIES SET FORTH IN THIS ARTICLE.

(b)  IF THE USE OF RESTRAINT IN SKILLED NURSING AND NURSING CARE FACILITIES LICENSED UNDER STATE LAW IS IN ACCORDANCE WITH THE FEDERAL STATUTES AND REGULATIONS GOVERNING THE MEDICARE PROGRAM SET FORTH IN 42 U.S.C. SEC. 1395i­3(c) AND 42 C.F.R. PART 483, SUBPART B AND THE MEDICAID PROGRAM SET FORTH IN 42 U.S.C. SEC. 1396r(c) AND 42 C.F.R. PART 483, SUBPART B AND WITH THE REGULATIONS OF THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT RELATING TO THE LICENSING OF THESE FACILITIES, THERE SHALL BE A CONCLUSIVE PRESUMPTION THAT SUCH USE OF RESTRAINT IS IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.

26­20­105.  Duties relating to use of restraint. (1)  NOTWITHSTANDING THE PROVISIONS OF SECTION 26­20­104, AN AGENCY THAT USES RESTRAINT SHALL ENSURE THAT:

(a)  STAFF TRAINED IN THE USE OF RESTRAINTS SHALL CHECK MECHANICAL RESTRAINTS FOR COMFORT, BODY ALIGNMENT, AND CIRCULATION;

(b)  NO PHYSICAL OR MECHANICAL RESTRAINT OF AN INDIVIDUAL SHALL PLACE EXCESS PRESSURE ON THE CHEST OR BACK OF THAT INDIVIDUAL OR INHIBIT OR IMPEDE THE INDIVIDUAL'S ABILITY TO BREATHE;

(c)  AN INDIVIDUAL IN PHYSICAL RESTRAINT SHALL BE MONITORED CONTINUOUSLY TO ASSESS THE INDIVIDUAL'S RESPIRATORY PATTERN;

(d)  A MEDICATION INTENDED TO RESTRAIN AN INDIVIDUAL SHALL BE GIVEN ONLY ON THE ORDER OF A PHYSICIAN WHO HAS DETERMINED, EITHER WHILE PRESENT DURING THE COURSE OF THE EMERGENCY JUSTIFYING THE USE OF THE RESTRAINT OR AFTER TELEPHONE CONSULTATION WITH A REGISTERED NURSE, CERTIFIED PHYSICIAN ASSISTANT, OR OTHER AUTHORIZED STAFF PERSON WHO IS PRESENT AT THE TIME AND SITE OF THE EMERGENCY AND WHO HAS PERSONALLY EXAMINED THE INDIVIDUAL, THAT SUCH FORM OF RESTRAINT IS THE LEAST RESTRICTIVE, MOST APPROPRIATE ALTERNATIVE AVAILABLE;

(e)  AN ORDER FOR MEDICATION INTENDED TO RESTRAIN AN INDIVIDUAL, ALONG WITH THE REASONS FOR ITS ISSUANCE, SHALL BE RECORDED IN WRITING AT THE TIME OF ITS ISSUANCE;

(f)  AN ORDER FOR MEDICATION INTENDED TO RESTRAIN AN INDIVIDUAL SHALL BE SIGNED AT THE TIME OF ITS ISSUANCE BY SUCH PHYSICIAN IF PRESENT AT THE TIME OF THE EMERGENCY;

(g)  AN ORDER FOR MEDICATION INTENDED TO RESTRAIN AN INDIVIDUAL, IF AUTHORIZED BY TELEPHONE, SHALL BE TRANSCRIBED AND SIGNED AT THE TIME OF ITS ISSUANCE BY AN INDIVIDUAL WITH THE AUTHORITY TO ACCEPT TELEPHONE MEDICATION ORDERS WHO IS PRESENT AT THE TIME OF THE EMERGENCY;

(h)  NO MEDICATION SHALL BE USED FOR RESTRAINT PURSUANT TO A TELEPHONED ORDER UNLESS THE MEDICATION SO ORDERED HAS BEEN PREVIOUSLY AUTHORIZED FOR THE INDIVIDUAL; EXCEPT THAT, IF MEDICATION HAS NOT BEEN PREVIOUSLY USED FOR RESTRAINT OF THAT INDIVIDUAL, A PHYSICIAN MAY AUTHORIZE TELEPHONICALLY THE USE OF MEDICATION FOR RESTRAINT IF THE PHYSICIAN HAS PREVIOUSLY PERFORMED A FACE­TO­FACE ASSESSMENT OF THE INDIVIDUAL;

(i)  NOTATIONS SHALL BE MADE IN THE RECORD OF THE INDIVIDUAL AS TO ANY BEHAVIORAL EFFECTS OF THE MEDICATION AFTER CLINICALLY APPROPRIATE LENGTHS OF TIME. CHECKS FOR SUCH BEHAVIORAL EFFECTS SHALL BE MADE BY STAFF TRAINED IN THE ADMINISTRATION OF MEDICATION.

(2)  RELIEF PERIODS FOR INDIVIDUALS IN MECHANICAL RESTRAINT SHALL OCCUR, EXCEPT WHEN THE INDIVIDUAL BEING RESTRAINED IS SLEEPING OR WHEN PRECLUDED FOR SAFETY REASONS, AT LEAST TEN MINUTES OF EVERY TWO HOURS OF RESTRAINT, AND THESE RELIEF PERIODS SHALL BE NOTED IN THE RECORDS OF THE INDIVIDUAL BEING RESTRAINED. PROVISION SHALL BE MADE BY STAFF ESCORTS, DURING RELIEF PERIODS FROM RESTRAINT OR OTHERWISE, FOR REASONABLE ACCESS TO TOILET FACILITIES.

(3)  RELEASE PERIODS FROM SECLUSION SHALL BE PROVIDED FOR REASONABLE ACCESS TO TOILET FACILITIES.

(4)  AN INDIVIDUAL IN PHYSICAL RESTRAINT SHALL BE RELEASED FROM SUCH RESTRAINT WITHIN FIFTEEN MINUTES AFTER THE INITIATION OF PHYSICAL RESTRAINT EXCEPT WHEN PRECLUDED FOR SAFETY REASONS.

26­20­106.  Staff training.  ALL AGENCIES SHALL ENSURE THAT STAFF IN FACILITIES OR PROGRAMS UTILIZING RESTRAINT ARE TRAINED IN THE APPROPRIATE USE OF RESTRAINT.

26­20­107.  Documentation requirements. (1)  EACH AGENCY SHALL ENSURE THAT THE USE OF RESTRAINT IS DOCUMENTED SO AS TO ENSURE A RECORD OF THE FOLLOWING:

(a)  THE NATURE OF THE RESTRAINT;

(b)  THE REASON FOR THE RESTRAINT;

(c)  THE TYPES OF LESS RESTRICTIVE ALTERNATIVES THAT WERE TRIED OR CONSIDERED;

(d)  THE PERSON AUTHORIZING THE RESTRAINT;

(e)  THE TIME OR TIMES RESTRAINT WAS ADMINISTERED; AND

(f)  THE DURATION OF THE RESTRAINT.

(2)  THE DOCUMENTATION REQUIRED BY SUBSECTION (1) OF THIS SECTION MUST BE KEPT IN THE RECORD OF THE INDIVIDUAL BEING RESTRAINED.

26­20­108.  Review of the use of restraint. EACH AGENCY SHALL ENSURE THAT A REVIEW PROCESS IS ESTABLISHED FOR THE APPROPRIATE USE OF RESTRAINT.

26­20­109.  Regulations. EACH AGENCY SHALL ADOPT REGULATIONS THAT ESTABLISH PROCEDURES FOR THE USE OF RESTRAINT CONSISTENT WITH THE PROVISIONS OF THIS ARTICLE. ANY AGENCY THAT HAS REGULATIONS IN EXISTENCE ON THE EFFECTIVE DATE OF THIS ARTICLE IS NOT REQUIRED TO PROMULGATE ADDITIONAL REGULATIONS UNLESS THAT AGENCY'S EXISTING REGULATIONS DO NOT MEET THE MINIMUM REQUIREMENTS OF THIS ARTICLE.

26­20­110.  Limitations. (1)  NOTHING IN THIS ARTICLE SHALL BE DEEMED TO FORM AN INDEPENDENT BASIS OF STATUTORY AUTHORITY FOR THE USE OF RESTRAINT.

(2)  NOTHING IN THIS ARTICLE SHALL BE DEEMED TO AUTHORIZE AN AGENCY TO IMPLEMENT POLICIES, PROCEDURES, OR STANDARDS OR PROMULGATE REGULATIONS THAT WOULD LIMIT, DECREASE, OR ADVERSELY IMPACT ANY POLICIES, PROCEDURES, STANDARDS, OR REGULATIONS IN EFFECT ON THE EFFECTIVE DATE OF THIS ARTICLE THAT PROVIDED GREATER PROTECTION CONCERNING THE USE OF RESTRAINT THAN ARE SET FORTH IN THIS ARTICLE.

SECTION 2.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.