HOUSE BILL No. 4796

 

 

June 20, 2017, Introduced by Reps. Faris, Lasinski, Sneller and Hoadley 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, 2018, 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, 2019, 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 shall 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.