42 U.S.C. § 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

42 U.S.C. 1396dNotwithstanding 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 [], shall comply with the requirements of part H.

(3)

Applicability of Medicaid provisions

42 U.S.C. 1396A non-medical, community-based facility for children and youth funded under the Medicaid program under title XIX of the Social Security Act [ 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) 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

1 So in original. Probably should be followed by “to”.

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  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) is prohibited.

(B)

Prohibition

The use of mechanical restraints in non-medical, community-based facilities for children and youth described in subsection (a)(1) is prohibited.

(C)

Limitation

A non-medical, community-based facility for children and youth described in subsection (a)(1) 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.

July 1, 1944, ch. 373 Pub. L. 106–310, div. B, title XXXII, § 3208Oct. 17, 2000114 Stat. 1197 (, title V, § 595, as added , , .)

Editorial Notes

References in Text

act Aug. 14, 1935, ch. 531 49 Stat. 620 section 1305 of this titleThe Social Security Act, referred to in subsec. (a)(3), is , . Title XIX of the Act is classified generally to subchapter XIX (§ 1396 et seq.) of chapter 7 of this title. For complete classification of this Act to the Code, see and Tables.