La. Admin. Code tit. 67 § V-7115

Current through Register Vol. 50, No. 11, November 20, 2024

Section V-7115 - Resident Protection

A. Rights

1. Provider Responsibility

a. The provider shall have written policies and procedures that ensure each resident's and child of a residents rights are guaranteed and protected.

b. None of the resident's rights shall be infringed upon or restricted in any way unless such restriction is necessary and indicated in the resident's individual service plan. When individual rights restrictions are implemented, the provider shall clearly explain and document any restrictions or limitations on those rights, the reasons that make those restrictions necessary in the residents individual service plan and the extent and duration of those restrictions. The documentation shall be signed by provider staff, the resident, and the legal guardian(s) or parent(s), if indicated. No service plan shall restrict the access of a resident to legal counsel or restrict the access of state or local regulatory officials to a resident.

c. Residents and children of residents with disabilities have the rights guaranteed to them under the Americans with Disabilities Act (ADA), 42 USC § 12101 et seq., and regulations promulgated pursuant to the ADA, 28 CFR Parts 35 and 36 and 49 CFR Part 37; section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794, and regulations promulgated pursuant thereto, including 45 CFR Part 84 . These include the right to receive services in the most integrated setting appropriate to the needs of the individual; to obtain reasonable modifications of practices, policies, and procedures where necessary (unless such modifications constitute a fundamental alteration of the provider's program or pose undue administrative burdens); to receive auxiliary aids and services to enable equally effective communication; to equivalent transportation services; and to physical access to a provider's facilities.

2. Privacy

a. Residents and children of residents have the right to personal privacy and confidentiality. Any records and other information about the resident or child of a resident shall be kept confidential and released only with the legal guardian's expressed written consent or as required by law.

b. A child of a resident shall not be photographed or recorded without the express written consent of the resident or the child's legal guardian(s). A resident shall not be photographed or recorded without the express written consent of the resident and the residents legal guardian(s). All photographs and recordings shall be used in a manner that respects the dignity and confidentiality of the child of the resident and resident.

c. Residents nor children of residents shall participate in research projects without the express written consent of the resident, child of the resident, and the legal guardian(s).

d. Residents nor children of residents shall participate in activities related to fundraising and publicity without the express written consent of the resident, child of the resident, and the legal guardian(s).

3. Contact with Family and Collaterals

a. A child of a resident and resident have the right to consult freely and have visits with his/her family (including but not limited to his or her mother, father, grandparents, brothers, and sisters), legal guardian(s) and friends subject only to reasonable rules. Special restrictions shall be imposed only to prevent serious harm to the child of a resident or resident. The reasons for any special restrictions shall be recorded in the child of the residents record or residents service plan, as applicable and explained to the child of the resident, resident, and his or her family. The service plan manager shall review the special restrictions every 30 days and, if restrictions are renewed, the reasons for renewal shall be recorded in the child of the residents record or residents service plan, as applicable. Home visits shall be approved by the legal guardian.

b. A child of a resident and resident have the right to telephone communication. The provider shall allow children of residents and residents to receive and place telephone calls in privacy subject only to reasonable rules and to any specific restrictions in the child of the residents record or residents service plan, as applicable. The service plan manager shall formally approve any restriction on telephone communication in a child of the residents record or residents service plan, as applicable. The service plan manager shall review the special restrictions every 30 days and, if restrictions are renewed, the reasons for renewal shall be recorded in the child of the residents record or residents service plan, as applicable. The cost for long distance calls shall not exceed the usual and customary charges of the local phone company provider. There shall be no restrictions on communication between a child of a resident and their legal counsel.

c. A child of a resident and resident have the right to send and receive mail. The provider shall allow children of residents and residents to receive mail unopened, uncensored, and unread by staff unless contraindicated in the child of a resident's record or residents service plan, as applicable. The service plan manager shall review this restriction every 30 days. No service plan or record shall restrict the right to write letters in privacy and to send mail unopened, uncensored, and unread by any other person. Correspondence from a child of a residents or residents legal counsel shall not be opened, read, or otherwise interfered with for any reason. Children of residents and residents shall have access to all materials necessary for writing and sending letters and when necessary, shall receive assistance.

d. Children of residents and residents have the right to consult freely and privately with legal counsel, as well as, the right to employ legal counsel of their choosing.

e. Children of residents and residents have the right to communicate freely and privately with state and local regulatory officials.

4. Safeguards

a. Residents and children of residents have the right to file grievances without fear of reprisal as provided in the grievances section of these standards.

b. Residents and children of residents have the right to be free from mental, emotional, and physical abuse and neglect and be free from chemical or mechanical restraints. Any use of personal restraints shall be reported to the legal guardians(s).

c. Residents and children of residents have the right to live within the least restrictive environment possible in order to retain their individuality and personal freedom.

5. Civil Rights

a. Residents nor children of residents civil rights shall be abridged or abrogated solely as a result of placement in the provider's program.

b. A resident nor child of a resident shall be denied admission, segregated into programs, or otherwise subjected to discrimination on the basis of race, color, religion, national origin, sexual orientation, physical limitations, political beliefs, or any other non-merit factor. Facilities must comply with the requirements of the Americans with Disabilities Act, 42 USC § 12101 et seq. (ADA).

6. Participation in Program Development

a. Residents and children of residents have the right to be treated with dignity in the delivery of services.

b. Residents and children of residents have the right to receive preventive, routine, and emergency health care according to individual needs which will promote his or her growth and development.

c. Residents and children of residents have the right to be involved, as appropriate to age, development, and ability in assessment and service planning.

d. Residents and children of residents have the right to consult with clergy and participate in religious services in accordance with his/her faith, but shall not be forced to attend religious services or punished for not participating in religious services. The provider shall have and adhere to a written policy of its religious orientation, particular religious practices that are observed, and any religious restrictions on admission. This description shall be provided to the resident, child of a resident, and the legal guardian(s). When appropriate, the provider shall determine the wishes of the legal guardian(s) with regard to religious observance and make every effort to ensure that these wishes are carried out. The provider shall, whenever possible, arrange transportation and encourage participation by those residents or children of residents who desire to participate in religious activities in the community.

7. Acknowledgement of Resident

a. Each resident shall be fully informed of all rights noted in Paragraphs A.1-6 of this Section and of all rules and regulations governing residents conduct and responsibilities, as evidenced by written acknowledgment, at the time of admission of the receipt of a copy of residents rights, and when changes occur. Each residents record shall contain a copy of the written acknowledgment, which shall be signed and dated by the program director, or designee, and the resident.

b. Each resident shall be informed of how and where to safely evacuate the facility during an emergency situation. The acknowledgement of understanding shall be signed and dated by the resident and program director, or designee.

B. Prohibited Practices

1. The provider shall have a written list of prohibited practices by staff members. Staff members shall not be allowed to engage in any of the prohibited practices. Staff shall not promote or condone these prohibited practices between residents or children of residents. This list shall include the following:

a. use of a chemical or mechanical restraint;

b. corporal punishment such as slapping, spanking, paddling or belting;

c. marching, standing, or kneeling rigidly in one spot;

d. any kind of physical discomfort except as required for medical, dental or first aid procedures necessary to preserve the resident's or child of a residents life or health;

e. denial or deprivation of sleep or nutrition except under a physician's order;

f. denial of access to bathroom facilities;

g. verbal abuse, ridicule, or humiliation, shaming or sarcasm;

h. withholding of a meal, except under a physician's order;

i. requiring a resident or child of a resident to remain silent for a long period of time;

j. denial of shelter, warmth, clothing, or bedding;

k. assignment of harsh physical work;

l. punishing a group of residents or children of residents for actions committed by one or a selected few; a group activity shall not be cancelled for the entire group, prior to the activity, due to the behavior of one or more individuals;

m. withholding family visits or communication with family;

n. extensive withholding of emotional response;

o. denial of school services or denial of therapeutic services;

p. other impingements on the basic rights of children of residents or residents for care, protection, safety, and security;

q. organized social ostracism, such as codes of silence;

r. pain compliance, slight discomfort, trigger points, pressure points, or any pain inducing techniques;

s. hyperextension of any body part beyond normal limits;

t. joint or skin torsion;

u. pressure or weight on head, neck, throat, chest, lungs, sternum, diaphragm, back, or abdomen, causing chest compression;

v. straddling or sitting on any part of the body;

w. any position or maneuver that obstructs or restricts circulation of blood or obstructs an airway;

x. any type of choking;

y. any type of head hold where the head is used as a lever to control movement of other body parts;

z. any maneuver that involves punching, hitting, poking, pinching, or shoving;

aa. separation of a resident and her child as a means of punishment;

bb. punishment for actions over which the child has no control such as bedwetting, enuresis, encopresis, or incidents that occur in the course of toilet training activities;

cc. use of threats or threatening an individual with a prohibited action even though there is/was no intent to follow through with the threat;

dd. cruel, severe, unusual, degrading, or unnecessary punishment;

ee. yelling, yanking, shaking;

ff. requiring a child of a resident or resident to exercise as punishment or placing a child of a resident or resident into uncomfortable positions;

gg. exposing a child of a resident or resident to extreme temperatures or other measures producing physical pain;

hh. putting anything in a residents or child of a residents mouth as a means of punishment;

ii. using abusive or profane language, including but not limited to telling a child of a resident to "shut up"; or

jj. any technique that involves covering of the mouth, nose, eyes or any part of the face.

2. The resident and child of a resident, where appropriate, and the resident's legal guardian(s) shall receive a list of the prohibited practices. There shall be documentation signed and dated acknowledging receipt of the list of prohibited practices by the resident and, where appropriate, the child of the resident and resident's legal guardian(s) in the record.

3. A list of prohibited practices shall be posted in the facility in an area regularly utilized by residents.

C. Behavior Support and Intervention Program

1. The provider shall have and adhere to a behavior support and intervention program that:

a. describes the provider's behavior support philosophy;

b. safeguards the rights of residents, children of residents, families, and staff;

c. governs allowed and prohibited practices; and

d. designates oversight responsibilities.

2. The provider shall have and adhere to written policies and procedures that include, but are not limited to:

a. a behavior support and intervention model consistent with the providers mission;

b. proactive and preventive practices;

c. development of behavior support plans for residents and children of residents;

d. prohibited behavior intervention practices;

e. restrictive practices, if any, that are allowed and circumstances when they can be used;

f. physical interventions to be used, if any;

g. informed consent of legal guardians for use of behavior support and interventions; and

h. oversight process.

3. An informed consent shall be obtained from the legal guardian for the use of any restrictive intervention.

4. There shall be a system in place that monitors the effectiveness of behavior support and interventions implemented.

5. All persons implementing physical interventions shall be trained and certified in behavior management under nationally accredited standards.

6. Participation by the resident, family, and the resident's legal guardian(s) in the development and review of the behavior support plan shall be documented in the resident's record.

7. There shall be documentation of written consent to the behavior support plan by the resident and the resident's legal guardian(s) in the resident's record.

D. Time-Out

1. The provider shall have and adhere to a written policy and procedure that governs the use of time-out to include the following:

a. any room used for time out shall be unlocked and the resident or child of a resident shall, at all times, be free to leave if he or she chooses;

b. time-out procedures shall be used only when less restrictive measures have been used without effect. There shall be written documentation of less restrictive measures used in the resident's or child of a resident's record;

c. emergency use of time-out for residents shall be approved by the service plan manager or program director for a period not to exceed one hour for residents age 6 and above;

d. time-out used in an individual behavior support plan for residents shall be part of the overall service plan;

e. the plan shall state the reasons for using time-out and the terms and conditions under which time-out will be terminated or extended, specifying a maximum duration of the use of the procedure that shall under no circumstances exceed two hours for residents;

f. staff shall make periodic checks but at least every 15 minutes while the resident is in time-out;

g. the resident shall be allowed to return to the daily activities at any time he/she has regained control of his/her behavior and is ready to participate in the group activities;

h. a resident or child of a resident in time-out shall not be denied access to bathroom facilities, water, or meals;

i. after each use of time out, the staff shall document the incident and place in the resident's record;

j. an administrative review of the incident by the program director or other facility management staff shall be conducted within three calendar days to include an analysis of specific precipitating factors and strategies to prevent future occurrences;

k. time-out shall not be used for children of residents or residents under two years of age;

l. the length of time out for children 2 years-5 years of age shall be based on the age of the child and shall not exceed a maximum of one minute per year of age. Provider shall take into account the child's developmental stage, tolerances, and ability to learn from time-out.

E. Personal Restraints

1. The provider shall and adhere to have a written policy and procedure that governs the use of personal restraints.

2. Use of personal restraints shall never be used as a form of punishment, a form of discipline, in lieu of adequate staffing, as a replacement of active treatment, or for staff convenience.

3. Written documentation of any less restrictive measures attempted shall be documented in the resident's record.

4. A personal restraint shall be used only in an emergency when a resident's behavior escalates to a level where there is imminent risk of harm to the resident or others and other de-escalation techniques have been attempted without effect. The emergency use of personal restraints shall not exceed the following:

a. 30 minutes for a resident under nine years old; or

b. one hour for a resident nine years old or older.

5. The specific maximum duration of the use of personal restraints as noted in Paragraph E.4 of this Section may be exceeded only if prior to the end of the time period, a written continuation order noting clinical justification is obtained from a licensed psychiatrist, psychologist, or physician. The maximum time for use of personal restraints shall be 12 hours.

6. During any personal restraint, staff qualified in emergency behavior intervention must monitor the resident's breathing and other signs of physical distress and take appropriate action to ensure adequate respiration, circulation, and overall well-being. If available, staff that is not restraining the resident should monitor the resident. The resident must be released immediately when an emergency health situation occurs during the restraint. Staff must obtain treatment immediately.

7. The resident must be released as soon as the resident's behavior is no longer a danger to himself or others.

8. Restraints are only to be used by employees trained by a certified trainer under a program that aligns with the nationally accredited standards. A single person restraint can only be initiated in a life-threatening crisis. Restraint by a peer is prohibited. Staff performing a personal restraint on a resident with specific medical conditions must be trained on risks posed by such conditions.

9. As soon as possible after the use of a personal restraint, the provider shall provide and document debriefing. Separate debriefing meetings must be held with senior staff and the staff members(s) involved, the resident involved, witnesses to the event, and family members, if indicated.

10. After use of a personal restraint, the staff shall document the incident and place in the resident's record.

11. An administrative review of the incident by the program director or other facility management staff shall be conducted within three calendar days to include an analysis of specific precipitating factors and strategies to prevent future occurrences.

12. All incidents of personal restraint use shall be trended in the quality improvement program. A summary report on the use of personal restraints will be prepared and submitted to the Licensing Section on a quarterly basis.

13. In the event a death occurs during the use of a personal restraint, the facility shall conduct a review of its personal restraint policies and practices and retrain all staff in the proper techniques and in methods of de-escalation and avoidance of personal restraint use within five calendar days. Documentation to include staff signatures and date of training shall be submitted to the Licensing Section upon completion of training.

F. Seclusion

1. The provider shall have and adhere to a written policy and procedure that governs the use of seclusion, if such a room exists in the facility. Seclusion may only be used in accordance with this Subsection.

2. Use of seclusion shall never be used as a form of punishment, a form of discipline, in lieu of adequate staffing, as a replacement of active treatment or for staff convenience.

3. A resident will be placed in a seclusion room only in an emergency, when there is imminent risk of harm to the resident or others and when less restrictive measures have been used without effect. Written documentation of the less restrictive measures attempted shall be documented in the residents record. The emergency use of seclusion shall not exceed the following:

a. one hour for a resident under nine years old; or

b. two hours for a resident nine years old or older.

4. The specific maximum duration of the use of seclusion as noted in Paragraph F.3 of this Section may be exceeded only if prior to the end of the time period, a written continuation order noting clinical justification is obtained from a licensed psychiatrist, psychologist, or physician. The maximum time for use of seclusion shall be 12 hours.

5. A staff member shall exercise direct physical observation of the resident at all times while in seclusion. During the seclusion, the staff must monitor the resident's physical well-being for physical distress and take appropriate action, when indicated. The resident must be released immediately when an emergency health situation occurs during the seclusion and staff must obtain treatment immediately. The staff member must assess the resident's psychological well-being to ensure that the intervention is being completed in a safe and appropriate manner and that the facility's policies and procedures are being upheld.

6. Seclusion used as part of an individual behavior support plan shall state the reasons for using seclusion and the terms and conditions under which seclusion shall be terminated or extended.

7. A resident in seclusion shall not be denied access to bathroom facilities, water or meals.

8. As soon as possible, but no later than 72 hours after the use of seclusion, the provider shall provide and document debriefing. Separate debriefing meetings must be held with senior staff and the staff member(s) involved, the resident involved, witnesses to the event, and family members, if indicated.

9. After use of seclusion, the staff shall document the incident and place in the resident's record.

10. An administrative review of the incident by the program director or other facility management staff shall be conducted within three calendar days to include an analysis of specific precipitating factors and strategies to prevent future occurrences.

11. All incidents of seclusion shall be trended in the quality improvement program. A summary report on the use of seclusion will be prepared and submitted to the Licensing Section on a quarterly basis.

12. The resident's legal guardian, the Louisiana child protection statewide hotline 1-855-4LA-KIDS (1-855-452-5437), and the Licensing Section shall be notified if injury or death occurs while the resident is in seclusion.

13. In the event a death occurs during the use of seclusion, the facility shall conduct a review of its seclusion policies and practices and retrain all staff in the proper use of seclusion and in methods of de-escalation and avoidance of seclusion within five calendar days. Documentation to include staff signatures and date of training shall be submitted to the Licensing Section upon completion of training.

14. Seclusion Room

a. The resident shall be unable to voluntarily leave the room.

b. The room shall be large enough to allow easy access for staff to enter and exit and deep enough to ensure that the person being secluded cannot keep the door from closing by blocking it with the body or an object.

c. The ceiling of the seclusion room shall be unreachable and of solid construction.

d. If there are windows in the seclusion room, they should be locked with security locks and not allowed to open to the outside. Safety glass or plastic that cannot be broken shall be used for the panes. The view from the door observation window must not be obstructed.

e. The inside walls of the seclusion room shall be constructed of safe material with give that can be easily cleaned. Nothing shall protrude or extend from the wall.

f. The door of the room shall swing outward to prevent a person from blocking the door from opening and thus barricading himself in the room.

La. Admin. Code tit. 67, § V-7115

Promulgated by the Department of Social Services, Office of Community Service, LR 36:819 (April 2010), amended by the Department of Children and Family Services, Division of Programs, Licensing Section, LR 38:985 (April 2012), Amended by the Department of Children and Family Services, Licensing Section, LR 43274 (2/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 36:477 and R.S. 46:1401 et seq.