Or. Admin. Code § 419-400-0180

Current through Register Vol. 63, No. 12, December 1, 2024

Section 419-400-0180 - Licensing Umbrella Rules: Restraints and Involuntary Seclusion

(1) A child-caring agency may only place child in care in a restraint or involuntary seclusion if the child in care's behavior poses a reasonable risk of imminent serious bodily injury to the child in care or others and less restrictive interventions would not effectively reduce the risk.

(2) A child-caring agency may not place a child in care in a restraint or involuntary seclusion as a form of discipline, punishment, or retaliation or for the convenience of staff, contractors or volunteers of the child-caring agency.

(3) If the child-caring agency utilizes restraints or involuntary seclusion as part of its practices, its use of restraints and involuntary seclusion must be in compliance with all applicable federal and state laws, regulations and rules.

(4) A child in care placed in a restraint or involuntary seclusion must be continuously monitored by staff of the child-caring agency for the duration of the restraint or involuntary seclusion.

(5) Any restraint or involuntary seclusion used on a child in care must be performed in a manner that is safe, proportionate and appropriate, taking into consideration the child in care's chronological and developmental age, size, gender identity, physical, medical and psychiatric condition and personal history, including any history of physical or sexual abuse.

(6) The removal or limitation of the use of a mobility aid or other assistive device in a restraint is prohibited unless there is a risk of imminent serious bodily injury and less restrictive interventions would not effectively reduce the risk.

(7) Removing or limiting the use of a mobility aid or other assistive device for the purpose of controlling a child in care's behavior is prohibited and

(8) If any restraint or involuntary seclusion lasts for more than 10 minutes, the child-caring must provide adequate access to the bathroom and water at least every thirty minutes to the child in care.

(9) For any restraint or involuntary seclusion lasting more than 10 minutes a supervisor, trained in the non-violent crisis intervention system used by the child-caring agency must provide written authorization for the continuation of the restraint or involuntary seclusion every five minutes.

(a) If the supervisor is not on-site at the time the restraint is used, the supervisor may provide the written authorization electronically.

(b) The written authorization must document why the restraint or involuntary seclusion continues to be the least restrictive intervention to reduce the risk of imminent serious bodily injury in the given circumstances.

(10) Restraint.

(a) The following types of restraint of a child in care are prohibited:

(A) Chemical restraint.

(B) Mechanical restraint.

(C) Prone restraint.

(D) Supine restraint, except:

(i) Supine restraint may be used only when the child in care is currently admitted to a secure children's inpatient treatment program or secure adolescent inpatient treatment program and:

(ii) The restraint is authorized by an order written at the time of and specifically for the current situation by a licensed medical practitioner as defined by OAR 309-022-0105(54) or a licensed children's emergency safety intervention specialist as defined by OAR 309-022-0105(14);

(iii) The restraint is used only as long as needed to prevent serious physical injury, as defined in ORS 161.015, and while no other intervention or form of restraint is possible;

(iv) A licensed medical practitioner, children's emergency safety intervention specialist or qualified mental health professional, who is certified in the use of the type of restraint used, continuously monitors the use of the restraint and the physical and psychological well-being of the child in care at all times while the restraint is being used;

(v) Each individual placing the child in care in the restraint is trained, as required by the Department of Human Services by rule, in the use of the type of restraint used and the individual's training is current;

(vi) One or more individuals with current cardiopulmonary resuscitation training are present for the duration of the restraint;

(vii) The child caring agency has written policies that require a licensed children's emergency safety intervention specialist or other licensed practitioner to evaluate and document the physical, psychological and emotional well-being of the child in care immediately following the use of the restraint.

(E) Any restraint that includes the intentional and nonincidental use of a solid object, including the ground, a wall or the floor, to impede a child in care's movement, except:

(i) This type of restraint may be used if the restraint is necessary to gain control of a weapon or;

(ii) The child in care is currently admitted to a secure children's inpatient treatment program or secure adolescent inpatient treatment program and complies with OAR 419-400-0180 (10)(a)(D) (i through vii).

(I) The restraint is authorized by an order written at the time of and specifically for the current situation by a licensed medical practitioner or a licensed children's emergency safety intervention specialist;

(II) The restraint is used only as long as needed to prevent serious physical injury, as defined in ORS 161.015, and while no other intervention or form of restraint is possible;

(III) A licensed medical practitioner, children's emergency safety intervention specialist or qualified mental health professional, who is certified in the use of the type of restraint used, continuously monitors the use of the restraint and the physical and psychological well-being of the child in care at all times while the restraint is being used;

(IV) Each individual placing the child in care in the restraint is trained, as required by the Department of Human Services by rule, in the use of the type of restraint used and the individual's training is current;

(V) One or more individuals with current cardiopulmonary resuscitation training are present for the duration of the restraint;

(VI) The child caring agency has written policies that require a licensed children's emergency safety intervention specialist or other licensed practitioner to evaluate and document the physical, psychological and emotional well-being of the child in care immediately following the use of the restraint;

(F) Any restraint that places or creates a risk of placing pressure on a child in care's neck or throat.

(G) Any restraint that places or creates a risk of placing, pressure on a child in care's mouth. This type of restraint may be used if the restraint is necessary for the purpose of extracting a body part from a bite.

(H) Any restraint that impedes, or creates a risk of impeding, a child in care's breathing.

(I) Any restraint that involves the intentional placement of any object or a hand, knee, foot or elbow on a child in care's neck, throat, genitals or other intimate parts.

(J) Any restraint that causes pressure to be placed or creates a risk of causing pressure to be placed, on a child in care's stomach, chest, joints, throat or back by a knee, foot or elbow.

(K) Any other action, of which the primary purpose is to inflict pain.

(b) Permissible use of restraint. A restraint may be used on a child in care in the following situations:

(A) Holding a child in care's hand or arm to escort the child in care safely and without the use of force from one area to another;

(B) Assisting the child in care to complete a task if the child in care does not resist the physical contact; or

(C) Using a physical intervention if:

(i) The intervention is necessary to break up a physical fight or to effectively protect a person from an assault, serious bodily injury or sexual contact;

(ii) The intervention uses the least amount of physical force and contact possible: and

(iii) The intervention is not a prohibited restraint identified in OAR 419-400-0180(10)(a).

(c) Only child-caring agency staff and proctor foster parents who have been trained in a nationally recognized nonviolent crisis-intervention system may use restraint and only when necessary as a last resort to prevent a child in care from inflicting harm to self or others. The restraint must be conducted within the parameters of the nationally recognized system in which the staff or proctor foster parent is trained.

(d) Any use of restraint by a staff member or proctor foster parent of the child-caring agency, if the member is not trained in a nationally recognized nonviolent crisis intervention system, must also be reported to a Department licensing coordinator within one business day of occurrence.

(e) Limitations. The child-caring agency must have a policy that prohibits the application of a nonviolent restraint to a child in care who has a documented physical condition that would contraindicate the use of that particular restraint, unless a qualified medical professional has previously and specifically authorized its use in writing for the child in care. Documentation of the authorization must be maintained in the child of care's record.

(11) Involuntary Seclusion.

(a) Rooms used for seclusion must have adequate space, temperature, light, and ventilation.

(b) Episodes of involuntary seclusion are limited to two hours for children in care age nine and older and one hour for children in care under the age of nine.

(c) If incidents of involuntary seclusion used with an individual child in care cumulatively exceed five hours in five days, or a single episode of more than two hours for children in care age nine and older or more than one hour for children in care under age nine, the executive director or designee must review the case with those with clinical leadership responsibilities to evaluate the child in care's plan of care and make necessary adjustments.

(12) Records

(a) A program shall maintain a record of each incident in which a reportable injury arises from the use of a restraint or involuntary seclusion. The record must include any photographs, audio recording or video recording immediately preceding, during and following the incident. The record may not be destroyed, edited, concealed, or altered in any way.

(b) For each record created as required by OAR 419-400-0180(12)(a), the program shall immediately provide written notification of the incident and true copies of the record to the department.

(c) If a program places a child in care in involuntary seclusion or arestraint, except as described in OAR 419-400-0180(10)(b)(A) or 419-400-0180(10)(b)(B), the program shall provide the child in care's case manager, attorney, court appointed special advocate and parent or guardian with:

(A) Verbal or electronic notice that the restraint or involuntary seclusion was used as soon as practicable following the incident but not later than the end of the next business day; and

(B) Written notice in compliance with OAR 419-400-0180(12)(d) that the restraint or involuntary seclusion was used as soon as practicable following the incident but not later than the end of the next business day.

(d) The written notice must include:

(A) A description of the restraint or involuntary seclusion, the date of the restraint or involuntary seclusion, the times when the restraint or involuntary seclusion began and ended and the location of the restraint or involuntary seclusion;

(B) A description of the child in care's activity that necessitated the use of restraint or involuntary seclusion;

(C) The efforts the program used to de-escalate the situation and the alternatives to restraint or involuntary seclusion the program attempted before placing the child in care in the restraint or involuntary seclusion;

(D) The names of each of individual who placed the child in care in the restraint or involuntary seclusion or who monitored or approved the placement of the child in care in the restraint or involuntary seclusion;

(i) For each individual identified whether the individual was trained, as required by the Oregon Department of Human Services by rule, in the use of the type of restraint or involuntary seclusion used, the date of the individual's most recent training and a description of the types of restraint the individual is trained to use, if any.

(ii) If an individual identified was not trained in the type of restraint or involuntary seclusion used, or if the individual's training was not current, a description of the individual's training deficiency and the reason an individual without the proper training was involved in the restraint or involuntary seclusion.

(E) If the child in care suffered a reportable injury arising from being placed in involuntary seclusion or a restraint, a description of any photographs, audio or video recordings related to the incident that are maintained by the program as required by OAR 419-400-0180(12)(a).

(e) If an incident requires notice under 419-400-0180(12)(c), not later than two business days following the date of the restraint or involuntary seclusion, the program shall hold a debriefing meeting with each individual who was involved in the incident and with any other appropriate program staff, shall take written notes of the debriefing meeting and shall provide copies of the written notes to the child in care's case manager, attorney, court appointed special advocate and parents or guardians.

(f) If serious bodily injury or the death of staff occurs in connection to the use of the restraint or involuntary seclusion, the program shall provide the department with written notification of the incident not later than 24 hours following the incident.

(13) Reporting Requirements

(a) A child caring agency must submit a report to the Department on a quarterly basis that includes at a minimum:

(A) The total number of incidents involving restraint.

(B) The total number of incidents involving involuntary seclusion.

(C) The total number of involuntary seclusions in a locked room.

(D) The total number of rooms available for use by the program for involuntary seclusion and a description of the dimensions and design of the rooms.

(E) The total number of children in care placed in restraint.

(F) The total number of children in care placed in involuntary seclusion.

(G) The total number of children who experienced both restraint and involuntary seclusion.

(H) The total number of incidents under paragraph (A) or (B) of this subsection that resulted in reportable injuries.

(I) The number of children in care who were placed in restraint or involuntary seclusion more than three times during the preceding three-month period and a description of the steps the program has taken to decrease the use of restraint and involuntary seclusion.

(J) The number of incidents in which an individual who placed a child in care in a restraint or involuntary seclusion was not trained, as required by the department by rule, in the use of the type of restraint or involuntary seclusion used.

(K) The demographic characteristics of the children in care who the program placed in a restraint or involuntary seclusion, including race, ethnicity, gender, disability status, migrant status, English proficiency and status as economically disadvantaged, unless the demographic information would reveal personally identifiable information about an individual child in care.

(L) The total number of children in care served by the program during the reporting period, including race, ethnicity, gender, disability status, English proficiency and status as economically disadvantaged, unless the demographic information would reveal personally identifiable information about an individual child in care.

(b) If a child caring agency provides services in more than one location, the reports required under subsection 419-400-0180(13)(a) must separate the data for each location that serves five or more children in care.

(c) If a child caring agency provides services to four or fewer children in care at a location, the location specific data must include a notation indicating the aggregate number of children in care served by the child caring agency across all of its locations and the reporting requirements continue to apply to any of the child care agency's other locations serving five or more children in care.

(d) Each child caring agency that submits a report under this section shall make its quarterly report available to the public upon request at the Child Caring Agency's main office and on the child caring agency's website if applicable.

(e) Each child caring agency shall provide notice regarding how to access the quarterly reports to the parents or guardians of children in care in the program. The child caring agency shall provide the notice upon the child in care's admission and at least two times each year thereafter.

(14) The reporting requirements described in OAR 419-400-0180 (13) do not apply to a program that is licensed as an Adoption Agency (as defined by OAR 419-400-0005(2)) and does not provide care or services to children other than those described in the definition.

Or. Admin. Code § 419-400-0180

CWP 19-2021, temporary adopt filed 08/24/2021, effective 09/01/2021 through 02/19/2022; CWP 2-2022, adopt filed 01/28/2022, effective 02/01/2022; CWP 13-2022, amend filed 06/23/2022, effective 07/01/2022; Renumbered from 413-215-0077 by CWP 26-2022, filed 11/28/2022, effective 12/1/2022; OTIS 15-2023, minor correction filed 01/18/2023, effective 1/18/2023; OTIS 74-2023, temporary amend filed 08/03/2023, effective 9/1/2023through 2/27/2024; OTIS 75-2023, minor correction filed 09/06/2023, effective 9/6/2023; OTIS 76-2023, amend filed 11/15/2023, effective 11/15/2023; OTIS 128-2023, amend filed 12/20/2023, effective 1/1/2024

Statutory/Other Authority: ORS 409.050, ORS 418.240, ORS 418.005 & 418.526

Statutes/Other Implemented: ORS 418.205 - 418.327, ORS 418.521, ORS 418.528, 418.526 & 418.519