Current through Register Vol. 35, No. 18, September 24, 2024
Certain provisions of this section are included to implement
regulations of the federal centers for medicare and medicaid services (CMS) and
may be amended when appropriate to reflect subsequent changes in the federal
CMS regulations. These provisions are intended to implement, and to be
consistent with the Child Health Act of 2000 and the CMS Interim Final Rule
issued May 22, 2001, and are subject to further modifications as dictated by
CMS.
A. The agency protects and
promotes the rights of each client in the program, including the right to be
free from physical or mental abuse, corporal punishment, and any personal
restraint or seclusion imposed for purposes of discipline or convenience. The
agency establishes and follows policies and procedures governing the use of
behavior management practices including therapeutic hold, personal restraint
and seclusion (when allowed as delineated below). This will include
documentation of each therapeutic hold, personal restraint and seclusion in the
client's record.
B. For those
behavior management practices that are allowed for each type of program and are
described above, the program supports their limited and justified use through:
(1) staff orientation and education that
create a culture emphasizing prevention of the need for therapeutic hold,
personal restraint and seclusion and their appropriate use;
(2) assessment processes that identify and
prevent potential behavioral risk factors; and
(3) the development and promotion of
preventive strategies and use of less restrictive alternatives.
C. Agency policy and procedures
identify qualified staff authorized to approve the protocols and apply the
criteria for use of therapeutic hold, personal restraint and
seclusion.
D.
Performance-improvement processes identify opportunities to reduce or eliminate
the use of personal restraint or seclusion.
E. The agency establishes and follows
policies and procedures for the safe, effective, limited, and least restrictive
use of behavior management practices. The policies and procedures include
measures to ensure that treatment planning includes regular review of the
necessity for, type and frequency of behavior management practices used in
individual cases.
F. When behavior
management practices are used, the agency protects the safety, dignity, and
privacy of clients to the maximum extent possible at all times during each
procedure.
G. Treatment plans
document the use of seclusion, personal restraint and therapeutic holds and
include: consideration of the client's medical condition(s); the role of the
client's history of trauma in his/her behavioral patterns; the treatment team's
solicitation and consideration of specific suggestions from the client
regarding prevention of future physical interventions.
H. Seclusion, personal restraint and
therapeutic holds are implemented only by staff who have been trained and
certified by a state recognized body in the prevention and use of therapeutic
holds, personal restraint and seclusion. This training emphasizes de-escalation
techniques and alternatives to physical contact with clients as a means of
managing behavior. Clients do not participate in the therapeutic holding,
personal restraint or seclusion of other clients.
I. Mechanical and chemical restraints are
prohibited in all programs except the program created under the Adolescent
Treatment Hospital Act, which has been mandated by NMSA 1978 Sections
23-9-1
et.seq., to serve adolescents who are violent or have a history of violence,
and which provides 24-hour on-site professional medical services in accordance
with Section 3207 of the Children's Health Act of 2000.
J. Personal restraint and seclusion, as
defined in these certification requirements, are used in JCAHO-accredited or
non-JCAHO-accredited residential treatment centers and group homes; in
emergency circumstances to ensure the immediate physical safety of the client,
other clients, staff member(s) or others; and when less restrictive
interventions have been determined to be ineffective. Personal restraint and
seclusion are used in accordance with these provisions and with federal law,
rule or regulation which may supersede state or accreditation regulations.
Personal restraint and seclusion are imposed only by an individual trained and
certified by a state-recognized body in the prevention and use of personal
restraint and seclusion and in the curriculum that may be set forth in federal
regulations to be promulgated under Title V of the Public Health Service Act (
42
U.S.C. 290 aa et seq. as amended by section
3208, Part I, section 595). When federal regulations are promulgated under
Title V as described above, the curriculum set forth there shall be included in
the training.
K. Physical escort is
allowed as a safe means of moving a client to a safe location.
L. Personal restraint or seclusion are not to
be used for staff convenience and/or as coercion, discipline, or retaliation by
staff.
M. This sub-section (M)
applies, for personal restraint, to facilities accredited by JCAHO, and to all
residential treatment centers for seclusion. These entities require orders that
are consistent with Department regulation, agency policy, and regulations of
the centers for medicare and medicaid services (CMS) 42 CFR, Parts 441 and 483.
These orders are issued by a restraint/seclusion clinician within one hour of
initiation of personal restraint or seclusion, and include documented clinical
justification for the use of personal restraint or seclusion.
(1) If the client has a treatment team
physician and he or she is available, only he or she can order personal
restraint or seclusion.
(2) If
personal restraint or seclusion is ordered by someone other than the client's
treatment team physician, the restraint/seclusion clinician will consult with
the client's treatment team physician as soon as possible and inform him or her
of the situation requiring the client to be restrained or placed in seclusion
and document in the client's record the date and time the treatment team
physician was consulted and the information imparted.
(3) The restraint/seclusion clinician must
order the least restrictive emergency safety intervention that is most likely
to be effective in resolving the situation.
(4) If the order for personal restraint is
verbal, the verbal order must be received by a restraint/seclusion clinician or
a New Mexico licensed registered nurse (RN) or practical nurse (LPN). The
restraint/seclusion clinician must verify the verbal order in a signed, written
form placed in the client's record within 24 hours after the order is
issued.
(5) A restraint/seclusion
clinician's order must be obtained by a restraint/seclusion clinician or New
Mexico licensed RN or LPN prior to or while the personal restraint or seclusion
is being initiated by staff, or immediately after the situation ends.
(6) Each order for personal restraint or
seclusion must be documented in the client's record and will include:
(a) the name of the restraint/seclusion
clinician ordering the personal restraint or seclusion;
(b) the date and time the order was
obtained;
(c) the emergency safety
intervention ordered, including the length of time;
(d) the time the emergency safety
intervention actually began and ended;
(e) the time and results of any one-hour
assessment(s) required; and
(f) the
emergency safety situation that required the client to be restrained or put in
seclusion; and
(g) the name, title,
and credentials of staff involved in the emergency safety
intervention.
(7)
Supervision and assessment of personal restraint or seclusion
(a) The restraint/seclusion clinician must be
available to staff for consultation, at least by telephone, throughout the
period of the emergency safety intervention.
(b) A New Mexico registered nurse or a
restraint/seclusion clinician other than a doctoral level psychologist, must
conduct a face-to-face assessment of the physical well being of the client
within one hour of the initiation of the emergency safety intervention and
immediately after the personal restraint is removed or the client is removed
from seclusion. A restraint/seclusion clinician or a New Mexico registered
nurse must conduct a face-to-face assessment of the psychological well being of
the client within one hour of the initiation of the emergency safety
intervention and immediately after the personal restraint is removed or the
client is removed from seclusion. When the personal restraint or seclusion is
less than one hour in duration, and the restraint/seclusion clinician is not
immediately available at the end of the period of restraint or seclusion, the
restraint/seclusion clinician will evaluate the client's well-being as soon as
possible after the conclusion of the restraint/seclusion, but in no case later
than one hour after its initiation.
(c) If the situation requiring emergency
safety intervention continues beyond the time limit of the order for the use of
personal restraint or seclusion, the New Mexico RN or LPN must immediately
contact the ordering restraint/seclusion clinician or the client's treatment
team physician to receive further instructions. If clinical circumstances
justify renewal of personal restraint or seclusion, then the renewal order must
be obtained within the time frames outlined in 24.O (1) below.
N. This sub-section (N)
applies to personal restraint in residential treatment services not accredited
by JCAHO. In these residential treatment services, personal restraint requires
the following, which is consistent with department regulation and agency
policy.
(1) A New Mexico licensed independent
practitioner, licensed professional mental health counselor (LPC), licensed
master social worker (LMSW), or registered nurse must be available to staff for
consultation, at least by telephone, throughout the period of the emergency
safety intervention.
(2) A New
Mexico licensed independent practitioner, or a licensed professional mental
health counselor (LPC), licensed master social worker (LMSW), in consultation
with a licensed independent practitioner, or a registered nurse trained in the
use of emergency safety interventions must conduct a face-to-face assessment of
the well-being of the client within one hour of the initiation of the emergency
safety intervention and immediately after the personal restraint is removed or
the client is removed from seclusion. When the personal restraint or seclusion
is less than one hour in duration, and the restraint/seclusion clinician is not
immediately available at the end of the period of restraint or seclusion, the
restraint/seclusion clinician will evaluate the client's well-being as soon as
possible after the conclusion of the restraint/seclusion, bu in no case later
than one hour after its initiation.
O. The following sub-section (O) applies to
all residential treatment centers and group homes.
(1) The personal restraint or seclusion is
limited to a maximum of two hours for clients age of 17 and one hour for
clients under nine years of age.
(2) Post-intervention debriefings with the
client will take place after each emergency safety intervention and the staff
will document in the client's record that the debriefing sessions took
place.
(3) The agency will have
affiliations or written transfer agreements in effect with one or more
hospitals approved for participation under the medicaid program that reasonably
ensure that:
(a) A client will be transferred
from the facility to the hospital and admitted in a timely manner when a
transfer is medically necessary for medical care or acute psychiatric
care;
(b) Medical and other
information needed for care of the client in light of such transfer will be
exchanged between the organizations in accordance with state medical privacy
law, including any information needed to determine whether the appropriate care
can be provided in a less restrictive setting; and
(c) Services will be available to each client
24 hours a day, seven days a week.
(4) The agency will document in the client's
record all client injuries that occur as a result of an emergency safety
intervention.
(5) All agencies will
attest in writing that the facility is in compliance with CMS standards
governing the use of personal restraint and seclusion. This attestation will be
signed by the agency director.
(6)
If the client is a minor, the agency will notify the parent(s) or legal
guardian(s) that personal restraint or seclusion has been ordered as soon as
possible after the initiation of each emergency safety intervention. This will
be documented in the client's record, including the date and time of
notification, the name of the staff person providing the notification, and who
was notified.
(7) Agencies will
provide for client health and safety by requiring direct service staff to
demonstrate competencies related to the use of emergency safety interventions
on a semiannual basis. Direct service staff will demonstrate, on an annual
basis, their competency in the use of cardiopulmonary resuscitation. The agency
will document in the staff personnel records that the training required was
successfully completed.
(8) The
agency must maintain an aggregate record of all situations requiring emergency
safety intervention, the interventions used and their outcomes.
(9) Programs must report the death of any
client to the CMS regional office by no later than close of business the next
business day after the client's death. The report must include the name of the
client and the name, street address and telephone number of the agency. The
parent or legal guardian will also be notified. Staff must document in the
client's record that the death was reported to the CMS regional
office.
