Bill Text: MI HB4147 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Children; child care; state policy on seclusion and restraint in child care centers, group child care homes, and family child care homes; require. Amends 1973 PA 116 (MCL 722.111 - 722.128) by adding secs. 2f, 2g, 2h, 2i, 2j, 2k, 2l & 2m.
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Introduced - Dead) 2019-02-07 - Bill Electronically Reproduced 02/06/2019 [HB4147 Detail]
Download: Michigan-2019-HB4147-Introduced.html
HOUSE BILL No. 4147
February 6, 2019, Introduced by Reps. Kennedy, Garza, Brenda Carter, Brixie, Gay-Dagnogo, Hertel, Coleman, Peterson, Cynthia Johnson, Chirkun, Yancey, Koleszar, Hood and Anthony and referred to the Committee on Families, Children, and Seniors.
A bill to amend 1973 PA 116, entitled
"An act to provide for the protection of children through the
licensing and regulation of child care organizations; to provide
for the establishment of standards of care for child care
organizations; to prescribe powers and duties of certain
departments of this state and adoption facilitators; to provide
penalties; and to repeal acts and parts of acts,"
(MCL 722.111 to 722.128) by adding sections 2f, 2g, 2h, 2i, 2j, 2k,
2l, and 2m.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2f. As used in this section and sections 2g to 2m:
(a) "Chemical restraint" means the administration of
medication for the purpose of restraint.
(b) "Corporal punishment" means the deliberate infliction of
physical pain by hitting, paddling, spanking, slapping, or any
other physical force used as a means of discipline.
(c) "De-escalation techniques" means evidence- and research-
based strategically employed verbal or nonverbal interventions used
to reduce the intensity of threatening behavior before, during, and
after a crisis situation occurs.
(d) "Documentation" means documentation developed by the
department that is uniform across the state.
(e) "Emergency physical restraint" means a last resort
emergency safety intervention involving physical restraint that is
necessitated by an ongoing emergency situation and that provides an
opportunity for the child to regain self-control while maintaining
the safety of the child and others. Emergency physical restraint
does not include physical restraint that is used for the
convenience of the child care center's, group child care home's, or
family child care home's staff, as a substitute for an educational
program, as a form of discipline or punishment, as a substitute for
less restrictive alternatives, as a substitute for adequate
staffing, or as a substitute for staff training in positive
behavioral intervention and support. Emergency physical restraint
does not include a practice prohibited under section 2h. Emergency
physical restraint does not include physical restraint when
contraindicated based on a child's disability, health care needs,
or medical or psychiatric condition, as documented in a record or
records made available to the child care center, group child care
home, or family child care home.
(f) "Emergency seclusion" means a last resort emergency safety
intervention involving seclusion that is necessitated by an ongoing
emergency situation and that provides an opportunity for the child
to regain self-control while maintaining the safety of the child
and others. To qualify as emergency seclusion, there must be
continuous observation by the child care center, group child care
home, or family child care home staff of the child in seclusion,
and the room or area used for confinement must comply with state
and local fire and building codes; must not be locked; must not
prevent the child from exiting the area if staff become
incapacitated or leave that area; and must provide for adequate
space, lighting, ventilation, viewing, and the safety and dignity
of the child and others, in accordance with department guidelines.
Emergency seclusion does not include the confinement of children
who are severely self-injurious or suicidal; seclusion that is used
for the convenience of staff, as a substitute for an educational
program, as a form of discipline or punishment, as a substitute for
less restrictive alternatives, as a substitute for adequate
staffing, or as a substitute for staff training in positive
behavioral intervention and support; or a practice prohibited under
section 2h. Emergency seclusion does not include seclusion when
contraindicated based on a child's disability, health care needs,
or medical or psychiatric condition, as documented in a record or
records made available to the child care center, group child care
home, or family child care home.
(g) "Emergency situation" means a situation in which a child's
behavior poses imminent risk to the safety of the individual child
or to the safety of others. An emergency situation requires an
immediate intervention.
(h) "Functional behavioral assessment" means an evidence- and
research-based systematic process for identifying the events that
trigger and maintain problem behavior in an educational setting. A
functional behavioral assessment shall describe specific
problematic behaviors, report the frequency of the behaviors,
assess environmental and other setting conditions where problematic
behaviors occur, and identify the factors that are maintaining the
behaviors over time.
(i) "Key identified personnel" means those individuals who
have received the mandatory training described in section 2m(b)(i)
to (xvi).
(j) "Mechanical restraint" means the use of any device,
article, garment, or material attached to or adjacent to a child's
body to perform restraint.
(k) "Physical restraint" means restraint involving direct
physical contact.
(l) "Positive behavioral intervention and support" means a
framework to assist staff in adopting and organizing evidence-based
behavioral interventions into an integrated continuum of
intensifying supports based on child need that unites examination
of the function of the problem behavior and the teaching of
alternative skill repertoires to enhance academic and social
behavior outcomes for all children.
(m) "Positive behavioral intervention and support plan" means
a child-specific support plan composed of individualized,
functional behavioral assessment-based intervention strategies,
including, as appropriate to the child, guidance or instruction for
the child to use new skills as a replacement for problem behaviors,
some rearrangement of the antecedent environment so that problems
can be prevented and desirable behaviors can be encouraged, and
procedures for monitoring, evaluating, and modifying the plan as
necessary.
(n) "Prone restraint" means the restraint of an individual
facedown.
(o) "Regularly and continuously work under contract" means any
of the following:
(i) To work at a child care center, group child care home, or
family child care home on a more than intermittent or sporadic
basis as an owner or employee of an entity that has a contract with
the child care center, group child care home, or family child care
home to provide food, custodial, transportation, counseling, or
administrative services, or to provide instructional services to
children or related and auxiliary services.
(ii) To work at a child care center, group child care home, or
family child care home on a more than intermittent or sporadic
basis as an individual under a contract with a child care center,
group child care home, or family child care home to provide food,
custodial, transportation, counseling, or administrative services,
or to provide instructional services to children or related and
auxiliary services.
(p) "Restraint" means an action that prevents or significantly
restricts a child's movement. Restraint does not include the brief
holding of a child in order to calm or comfort, the minimum contact
necessary to physically escort a child from 1 area to another, the
minimum contact necessary to assist a child in completing a task or
response if the child does not resist or resistance is minimal in
intensity or duration, or the holding of a child for a brief time
in order to prevent an impulsive behavior that threatens the
child's immediate safety, such as running in front of a car.
Restraint does not include the administration of medication
prescribed by and administered in accordance with the directions of
a physician, an adaptive or protective device recommended by a
physician or therapist when it is used as recommended, or safety
equipment used by the general child population as intended, such as
a seat belt or safety harness on school transportation. Restraint
does not include necessary actions taken to break up a fight, to
stop a physical assault, as defined in section 1310 of the revised
school code, 1976 PA 451, MCL 380.1310, or to take a weapon from a
child. Restraint does not include actions that are an integral part
of a sporting event, such as a referee pulling football players off
of a pile or a similar action.
(q) "Restraint that negatively impacts breathing" means any
restraint that inhibits breathing, including floor restraints,
facedown position, or any position in which an individual is bent
over in such a way that it is difficult to breathe. This includes a
seated or kneeling position in which an individual being restrained
is bent over at the waist and restraint that involves sitting or
lying across an individual's back or stomach.
(r) "Seclusion" means the confinement of a child in a room or
other space from which the child is physically prevented from
leaving. Seclusion does not include the general confinement of
children if that confinement is an integral part of an emergency
lockdown drill or of another emergency security procedure that is
necessary to protect the safety of children.
(s) "Staff" or "staff member" includes all individuals
employed in a child care center, group child care home, or family
child care home or assigned to regularly and continuously work
under contract or under agreement in a child care center, group
child care home, or family child care home or child care center,
group child care home, or family child care home personnel
providing service at a child care center, group child care home, or
family child care home.
Sec. 2g. Not later than December 1, 2019, the department shall
develop a state policy regarding the use of seclusion and restraint
in child care centers, group child care homes, and family child
care homes that includes all of the elements under sections 2g to
2m, along with guidelines as the department considers appropriate.
Not later than June 1, 2020, a child care center, group child care
home, and family child care home shall adopt and implement a policy
regarding the use of seclusion and restraint that is consistent
with the state policy under this section. A person that fails to
comply with this section or that fails to comply with any of the
requirements of the state policy developed under this section is
considered to have failed to comply with and to have violated this
act.
Sec. 2h. The state policy developed under section 2g shall
include a clear statement that all of the following practices are
prohibited for staff in the child care centers, group child care
homes, or family child care homes of this state under all
circumstances, including emergency situations:
(a) Corporal punishment.
(b) The deprivation of basic needs.
(c) Child abuse.
(d) Seclusion, other than emergency seclusion.
(e) The intentional application of any noxious substance or
stimulus that results in physical pain or extreme discomfort. A
noxious substance or stimulus is prohibited whether it is generally
acknowledged or is specific to the child.
(f) Mechanical restraint.
(g) Chemical restraint.
(h) Any restraint that negatively impacts breathing.
(i) Prone restraint.
(j) Physical restraint, other than emergency physical
restraint.
(k) Any other type of restraint.
Sec. 2i. The state policy developed under section 2g shall
include at least all of the following provisions concerning use of
emergency seclusion and emergency physical restraint:
(a) Emergency seclusion and emergency physical restraint may
be used only under emergency situations and only if essential to
providing for the safety of the child or safety of another.
(b) Emergency seclusion and emergency physical restraint may
not be used in place of appropriate less restrictive interventions.
(c) Emergency seclusion and emergency physical restraint shall
be performed in a manner that, based on research and evidence, is
safe, appropriate, and proportionate to and sensitive to the
child's severity of behavior, chronological and developmental age,
physical size, gender, physical condition, medical condition,
psychiatric condition, and personal history, including any history
of physical or sexual abuse or other trauma.
(d) A requirement that staff shall seek help from key
identified personnel from within the child care center, group child
care home, or family child care home either immediately at the
onset of an emergency situation or, if it is reasonable under the
particular circumstances for staff to believe that diverting their
attention to calling for help would increase the risk to the safety
of the child or to the safety of others, as soon as possible once
the circumstances no longer support that belief.
(e) A requirement that the child care center, group child care
home, or family child care home must ensure that substitute staff
are informed of and understand the procedures regarding use of
emergency seclusion and emergency physical restraint. This
requirement may be satisfied using online training and an online
acknowledgment of understanding developed or approved by the
department and completed by the substitute staff member.
(f) A requirement that emergency seclusion shall not be used
longer than necessary, based on research and evidence, to allow a
child to regain control of his or her behavior to the point that
the emergency situation necessitating the use of emergency
seclusion has ended and generally no longer than 10 minutes for a
child who is younger than a school-age child, 15 minutes for an
elementary school child, or 20 minutes for a middle school or high
school child. If an emergency seclusion lasts longer than 10
minutes for a child who is younger than a school-age child, 15
minutes for an elementary school child, or 20 minutes for a middle
school or high school child, the state policy shall require both of
the following:
(i) Additional support, which may include a change of staff,
or introducing a nurse, specialist, or additional key identified
personnel.
(ii) Documentation to explain the use of emergency seclusion
beyond the time limit allowed in the state policy.
(g) A requirement that emergency physical restraint shall not
be used longer than necessary, based on research and evidence, to
allow a child to regain control of his or her behavior to the point
that the emergency situation necessitating the use of emergency
physical restraint has ended and generally no longer than 10
minutes. If an emergency physical restraint lasts longer than 10
minutes, the state policy shall require both of the following:
(i) Additional support, that may include a change of staff, or
introducing a nurse, specialist, or additional key identified
personnel.
(ii) Documentation to explain the use of emergency physical
restraint beyond the time limit allowed in the state policy.
(h) While using emergency seclusion or emergency physical
restraint, staff must do all of the following:
(i) Involve key identified personnel to protect the care,
welfare, dignity, and safety of the child.
(ii) Continually observe the child in emergency seclusion or
emergency physical restraint for indications of physical distress
and seek medical assistance if there is a concern.
(iii) Document observations.
(iv) Ensure to the extent practicable, in light of the ongoing
emergency situation, that the emergency physical restraint does not
interfere with the child's ability to communicate using the child's
primary mode of communication.
(v) Ensure that at all times during the use of emergency
seclusion or emergency physical restraint there is staff present
who can communicate with the child using the child's primary mode
of communication.
Sec. 2j. The state policy developed under section 2g shall
include at least all of the following provisions concerning
documentation and reporting of seclusion and restraint:
(a) Each use of seclusion or restraint and the reason for each
use shall be documented in writing and reported immediately in
writing or orally to the child care center, group child care home,
or family child care home and the child's parent or guardian. Each
use of seclusion or restraint shall be documented in a written
report, including multiple uses within a given day. This written
report must be provided to the child's parent or guardian within 1
weekday of the use of seclusion or restraint.
(b) After any use of seclusion or restraint, staff must make
reasonable efforts to debrief and consult with the parent or
guardian, or with the parent or guardian and the child, as
appropriate, regarding determining future actions. The debriefing
and consultation shall be done in accordance with department
guidelines and documented on forms developed by the department.
(c) If a child exhibits a pattern of behavior that poses a
substantial risk of creating an emergency situation in the future
that could result in the use of emergency seclusion or emergency
physical restraint, staff are encouraged to do all of the
following:
(i) Conduct a functional behavioral assessment.
(ii) Develop or revise a positive behavioral intervention and
support plan to facilitate eliminating the use of seclusion and
restraint.
(iii) Develop an assessment and planning process conducted by
a team knowledgeable about the child, including at least the parent
or guardian; the child, if appropriate; the individuals responsible
for implementation of the positive behavioral intervention and
support plan; and individuals knowledgeable in positive behavioral
intervention and support.
Sec. 2k. The state policy developed under section 2g shall
include at least all of the following provisions concerning
development and implementation of an emergency intervention plan:
(a) If a child exhibits a pattern of behavior that poses a
substantial risk of creating an emergency situation in the future
that could result in the use of emergency seclusion or emergency
physical restraint, staff should develop a written emergency
intervention plan to protect the health, safety, and dignity of the
child. The emergency intervention plan must be developed in
partnership with the parent or guardian by a team that includes a
staff member, an individual knowledgeable about the legally
permissible use of emergency seclusion and emergency physical
restraint, and an individual knowledgeable about the use of
positive behavioral intervention and support to eliminate the use
of seclusion and restraint. The emergency intervention plan must be
developed and implemented by taking all of the following documented
steps:
(i) Describe in detail the procedures to be followed in an
emergency situation.
(ii) Describe in detail the legal limit on the use of
emergency seclusion and emergency physical restraint, including
examples of legally permissible and prohibited use.
(iii) Make inquiry to the child's medical personnel, with
parental consent, regarding any known medical or health
contraindications for the use of emergency seclusion or emergency
physical restraint.
(iv) Conduct a peer review by knowledgeable staff.
(v) Provide the parent or guardian with all of the following,
in writing and orally:
(A) A detailed explanation of the positive behavioral
intervention and support strategies that will be utilized to reduce
the risk of the child's behavior creating an emergency situation.
(B) An explanation of what constitutes an emergency situation,
including examples of situations that are considered emergency
situations and examples of situations that are not considered
emergency situations.
(C) A detailed explanation of the procedures to be followed in
an emergency situation under the emergency intervention plan,
including the potential use of emergency seclusion and emergency
physical restraint.
(D) A detailed explanation of the legal limit on the use of
emergency seclusion and emergency physical restraint, including
examples of legally permissible and prohibited use.
(E) A description of possible discomforts or risks associated
with the use of emergency seclusion and emergency physical
restraint.
(F) Answers to the parent's questions.
(b) A child who is the subject of an emergency intervention
plan should be told or shown the circumstances under which
emergency seclusion or emergency physical restraint could be used.
(c) Emergency seclusion or emergency physical restraint must
only be used in response to an ongoing emergency situation and not
as a planned response for the convenience of staff, as discipline
or punishment, or as a substitute for an appropriate educational
program. The development of an emergency intervention plan shall be
solely for the purpose of protecting the health, safety, and
dignity of the child and does not expand the legally permissible
use of emergency seclusion or emergency physical restraint.
Sec. 2l. The state policy developed under section 2g shall
include at least all of the following provisions concerning data
collection:
(a) A child care center, group child care home, or family
child care home, in accordance with department guidelines, shall
collect and report data on and related to the use of restraint and
seclusion in the child care center, group child care home, or
family child care home. In collecting and reporting this data, a
child care center, group child care home, or family child care home
shall use existing data collection and reporting systems whenever
possible. Incidents of use of restraint or seclusion shall, at a
minimum, be reported by race, age, grade, gender, disability
status, medical condition, identity of the staff member initiating
the use of the seclusion or restraint, and identity of the child
care center, group child care home, or family child care home where
the use of seclusion or restraint occurred.
(b) All of the following must occur with respect to the data
collected under subdivision (a):
(i) The data must be analyzed by the child care center, group
child care home, or family child care home in which the child is
provided care to determine the efficacy of the system of behavioral
support.
(ii) The data must be analyzed by the child care center, group
child care home, or family child care home for the purposes of
continuous improvement of training and technical assistance toward
the elimination of seclusion and restraint.
(iii) The data must be analyzed by the child care center,
group child care home, or family child care home on a schedule
determined by the department.
(iv) The data must be reported electronically by the child
care center, group child care home, or family child care home to
the department in accordance with department guidelines.
(c) The department shall make available redacted, aggregate
data on the reported use of seclusion and restraint, compiled by
the child care center, group child care home, or family child care
home on a quarterly basis.
Sec. 2m. The state policy developed under section 2g shall
include at least all of the following training provisions
concerning seclusion and restraint, that may include online
training developed or approved by the department:
(a) In accordance with department guidelines, a child care
center, group child care home, or family child care home shall
implement a comprehensive training framework that includes
awareness training for all staff who have regular contact with
children and comprehensive training for key identified personnel as
described in subdivision (b).
(b) A child care center, group child care home, or family
child care home shall identify sufficient key personnel to ensure
that trained personnel are generally available for an emergency
situation. Before using emergency seclusion or emergency physical
restraint with children, key identified personnel who may be
required to respond to an emergency situation must be trained in
all of subparagraphs (i) to (xvi) as follows and should be trained
in all of subparagraphs (xvii) to (xx) as follows:
(i) Proactive practices and strategies that ensure the dignity
of children.
(ii) De-escalation techniques.
(iii) Techniques to identify child behavior that may trigger
an emergency situation.
(iv) Related safety considerations, including information
regarding the increased risk of injury to a child or staff when
seclusion or restraint is used.
(v) Instruction in the use of emergency seclusion and
emergency physical restraint.
(vi) Identification of events and environmental factors that
may trigger an emergency situation.
(vii) Instruction on the state policy on the use of seclusion
and restraint.
(viii) Description and identification of dangerous behaviors.
(ix) Methods for evaluating the risk of harm to determine
whether the use of emergency seclusion or emergency physical
restraint is warranted.
(x) Types of seclusion.
(xi) Types of restraint.
(xii) The risk of using seclusion or restraint in
consideration of a child's known and unknown physical or mental
health condition or psychological limitation.
(xiii) The effects of seclusion and restraint on all children.
(xiv) How to monitor for and identify the physical signs of
distress and the implications for children generally and for
children with particular physical or mental health conditions or
psychological limitations.
(xv) How to obtain appropriate medical assistance.
(xvi) Cardiopulmonary resuscitation and first aid.
(xvii) Conflict resolution.
(xviii) Mediation.
(xix) Social skills training.
(xx) Positive behavioral intervention and support strategies.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
