Section .0100 ‑ Right To Treatment Or Habilitation

Link to law: http://reports.oah.state.nc.us/ncac/title 10a - health and human services/chapter 28 - mental health, state operated facilities and services/subchapter d/subchapter d rules.html
Published: 2015

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SUBCHAPTER 28D ‑ TREATMENT OR HABILITATION RIGHTS

 

SECTION .0100 ‑ RIGHT TO TREATMENT OR HABILITATION

 

10A NCAC 28D .0101       APPROPRIATE EVALUATION AND TREATMENT OR

HABILITATION

(a)  Each client except day clients shall receive a prompt

and comprehensive physical and brief mental status examination, including

laboratory evaluation where appropriate, within 24 hours after admission to the

state facility.  Comprehensive psychological or developmental evaluations shall

be performed when needed, as determined by the treatment/habilitation team. 

The type and dates of all examinations shall be documented in the client

record.  There must be a physical examination of the client before ordering

medication except in an emergency.

(b)  In addition to the treatment rights specified in G.S.

122C‑57(a), all handicapped clients have a right to habilitation and

rehabilitation as specified in G.S. 168‑8.

(c)  Each client shall receive evaluation and

treatment/habilitation in accordance with G.S. 122C‑57(b), G.S. 122C‑60

and G.S. 122C‑61.  Evaluation and treatment/habilitation shall be

provided in the least restrictive environment.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

122C‑60; 122C‑61; 122C‑211; 122C‑221;

122C‑231; 122C‑241; 122C‑266; 122C‑285;

131E‑67; 143B‑147; 168‑8;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

10A NCAC 28D .0102       MEDICAL AND DENTAL

CARE

(a)  The State Facility Director shall assure access to

prompt, adequate and necessary medical and dental care and treatment to the

client for physical and mental ailments and injuries and for the prevention of illness

or disability as specified in G.S. 122C‑61(1).  "Necessary" may

be determined in light of the client's length of stay and condition.  Short

term clients shall be apprised of other medical and dental conditions and

informed of appropriate medical and dental care.

(b)  All medical and dental care and treatment shall be

consistent with accepted standards of medical and dental practice.  The medical

care shall be performed under appropriate supervision of licensed physicians

and the dental care shall be performed under appropriate supervision of

licensed dentists.

(c)  Each client shall receive physical and dental

examinations at least annually.

(d)  In cases of medical emergency or necessity:

(1)           if the necessary equipment or expertise is

not available at the state facility, the attending physician shall arrange

treatment at an appropriate medical facility;

(2)           if the client is at an unreasonable

distance from his home facility, he shall be taken to a nearer appropriate

hospital or clinic; and

(3)           if the events in Subparagraphs (d)(1) or

(2) of this Rule occur, the State Facility Director shall assure that those

persons specified in G.S. 122C‑206(e) are notified.

 

History Note:        Authority G.S. 122C‑57; 122C‑61;

122C‑206; 131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0103       INDIVIDUALIZED TREATMENT OR HABILITATION

PLAN

(a)  The state facility shall provide qualified

professionals to formulate and supervise implementation of the

treatment/habilitation plan in accordance with G.S. 122C‑57(a).

(b)  Each client shall be encouraged and helped to attend

the treatment/habilitation team meeting and to actively and meaningfully

participate in the formulation of his treatment or habilitation plan. The

legally responsible person of a minor or incompetent adult client shall also be

encouraged to attend.  The amount of participation by the client or legally

responsible person shall be documented in the client record.  The internal

client advocate shall be allowed to attend the treatment/habilitation team

meeting in accordance with G.S. 122C‑53(g).

(c)  Each client may, upon request, have an in‑house

review of his individual treatment or habilitation plan or request the opinion

of another person at no cost to the state.

(d)  The client's treatment or habilitation plan shall be

reviewed at least quarterly by the treatment/habilitation team.

(e)  A discharge plan shall be formulated in accordance with

Rule .0105 of this Section.

(f)  Upon request, a copy of the client's treatment or

habilitation plan or an interpretive letter shall be furnished to the legally

responsible person of an incompetent adult client or legally responsible person

of a minor client except for minor clients in alcohol or drug rehabilitation

programs as specified in 42 C.F.R. Part 2 or when minors are receiving

treatment upon their own consent in accordance with G.S. 90‑21.5.

(g)  The treatment/habilitation team shall inform the client

of the availability of his treatment/habilitation plan and shall provide the

client with a copy of his treatment/habilitation plan upon request by the

client when filed in accordance with G.S. 122C‑53(c).

 

History Note:        Authority G.S. 90‑21.5; 122C‑51;

122C‑53; 122C‑57; 122C‑61; 122C‑62; 131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0104       TRANSFER

When transferring clients, the State Facility Director shall

follow the procedures specified in G.S. 122C‑206 and division publication

"Transfer of Clients Between State Facilities, APSM 45‑1",

adopted pursuant to G.S. 150B‑14(c).  The Division publication is

available for inspection in each state facility or in the Publications Office

of the Division.

 

History Note:        Authority G.S. 122C‑206; 131E‑67;

143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0105       DISCHARGE

(a)  When a state facility discharges a client, each client

shall have a discharge plan as specified in G.S. 122C‑61(2) unless the

client:

(1)           is receiving respite services;

(2)           escapes or breaches the conditions of a conditional

release;

(3)           is unanticipatedly discharged by the court

following district court hearing; or

(4)           is immediately discharged upon request of

the client or legally responsible person.

(b)  The discharge plan shall:

(1)           be formulated by qualified professionals;

(2)           inform the client of where and how to

receive treatment or habilitation services in the community;

(3)           identify continuing treatment or

habilitation needs, and address issues such as food, housing, and employment;

(4)           involve the appropriate area program, with

consent of the client or his legally responsible person or in accordance with

G.S. 122C‑55(a) or G.S. 122C‑63; and

(5)           be provided to the client or legally

responsible person as specified in G.S. 122C‑61(2).

(c)  When the client is unexpectedly discharged by the court

in hearing subsequent to the initial hearing, the client's discharge plan shall

contain at least the following:

(1)           address and phone number of the agency in

the community where follow‑up services can be provided, including name of

contact person in Department of Social Services if food and housing are issues;

(2)           current medications, if applicable; and

(3)           recommendations for continued care in

anticipated problem areas.

(d)  With the exception of the State Hospital Director who

shall follow the provisions of 10A NCAC 28F .0113, the State Facility Director

in each of the other state facilities shall establish written policies and

procedures to ensure that reasonable efforts are made to assist the client in

obtaining needed services in the community upon discharge or placement.  The

policy shall include the designation of qualified professional staff to assist

clients in establishing contact with the appropriate area program and

furnishing information to the area program with the client or legally

responsible person's consent or as permitted by G.S. 122C‑55(a).

 

History Note:        Authority G.S. 122C‑55; 122C‑61;

122C‑63; 122C‑132; 131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. July 1, 1989.

 

10A NCAC 28D .0106       CONSENT

(a)  Consents required in Sections .0200, .0300 and .0400 in

this Subchapter shall be obtained in writing or verbally over the telephone.

(b)  Written consent of the client or his legally

responsible person shall be obtained whenever possible.  Information which is

necessary to adequately inform the client shall be documented in the client

record and shall include the following:

(1)           name of the procedure or treatment and its

purpose expressed in laymen's terms;

(2)           evidence that the benefits, risks, possible

complications and possible alternative methods of treatment have been explained

to the client or his legally responsible person;

(3)           notification that the consent may be

withdrawn at any time without reprisal;

(4)           specific length of time for which consent

is valid;

(5)           when anesthesia is indicated, permission to

administer a specified type of anesthesia;

(6)           permission to perform the procedure or

treatment;

(7)           when applicable, authorization for the

examination and disposal of any tissue or body parts that may be removed; and

(8)           signature of the client or his legally

responsible person on written authorizations.

(c)  Whenever written consent cannot be obtained in a timely

manner, verbal (telephone) consent may be obtained from the legally responsible

person.  The legally responsible person shall be asked to sign a written

authorization and return it to the state facility but the treatment or

procedure may be administered in accordance with the verbal consent.  Verbal

consent shall be witnessed by two staff members and documented in the client

record.  The client record shall also include documentation specifying the

reason why written consent could not be obtained.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

131E‑67; 143B‑147;

Eff. July 1, 1989;

Amended Eff. April 1, 1990.

 

section .0200 – protections regarding certain procedures

 

10A ncac 28D .0201       least restrictive alternative and

PROHIBITED PROCEDURES

(a)  Each facility shall provide services/supports that

promote a safe and respectful environment.  These include:

(1)           using the least restrictive and most

appropriate settings and methods;

(2)           promoting coping and engagements skills

that are alternatives to injurious behavior towards self or others;

(3)           providing choices of activities meaningful

to the clients serviced/supported; and

(4)           sharing of control over decisions with the

client/legally responsible person and staff.

(b)  The use of a restrictive intervention procedure

designed to reduce a behavior shall always be accompanied by actions designed

to insure dignity and respect during and after the intervention.  These

include:

(1)           using the intervention as a last resort;

and

(2)           employing the intervention by people

trained in its use.

(c)  Each state facility shall develop policies relative to

prohibited interventions.  Such policies shall specify:

(1)           those interventions which have been

prohibited by statute or rule which shall include:

(A)          any intervention which would be considered corporal

punishment under G.S. 122C‑59;

(B)          the contingent use of painful body contact;

(C)          substances administered to induce painful bodily

reactions exclusive of Antabuse;

(D)          electric shock (excluding medically administered

electroconvulsive therapy);

(E)           insulin shock; and

(F)           psychosurgery; and

(2)           those interventions specified in this

Subchapter determined by the state facility director to be unacceptable for use

in the state facility.  Such policies shall specify interventions prohibited by

funding sources including the use of seclusion or the emergency use of

isolation time out in an ICF/MR facility.

(d)  In addition to the procedures prohibited in Paragraph

(c) of this Rule, the state facility director may specify other procedures

which shall be prohibited.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

122C‑59; 143B‑147;

Eff. October 1, 1984;

Amended Eff. November 1, 1993; July 1, 1989;

Temporary Amendment Eff. January 1, 2001;

Amended Eff. August 1, 2002.

 

10A NCAC 28D .0202       ELECTROCONVULSIVE THERAPY

(a)  The treatment/habilitation team may recommend the use

of electroconvulsive therapy.

(b)  Before electroconvulsive therapy can be utilized two

licensed physicians, one of whom shall be clinically privileged to perform

electroconvulsive therapy, shall approve a written plan, which includes

indication of need, specific goals to be achieved, methods for measuring

treatment efficacy, and indications for discontinuation of treatment.  In

addition, electroconvulsive therapy shall not be administered to any client

under age 18 unless, prior to the treatment, two independent psychiatric

consultants with training or experience in the treatment of adolescents have

examined the client, consulted with the responsible state facility psychiatrist

and have written and signed reports which document concurrence with the use of

such treatment.  For clients under the age of 13, such reviews shall be

conducted by child psychiatrists.

(c)  The internal client advocate shall be informed at the

time of the decision to utilize electroconvulsive therapy whenever the legally

competent client requests such notification or when proposed for use with minor

clients or adults adjudicated incompetent.

(d)  Electroconvulsive therapy shall not be initiated

without prior consent in accordance with G.S. 122C‑57(f).

(e)  If the adult client is determined to be de facto

incompetent by the treatment/habilitation team and is determined to need

electroconvulsive therapy, legal guardianship procedures shall be initiated and

consent requirements of Paragraph (d) of this Rule shall be met.

(f)  All electroconvulsive therapy shall be administered in

accordance with generally accepted medical practice and shall be documented in

the client record.

(g)  The State Facility Director shall maintain a

statistical record of the use of electroconvulsive therapy which shall include,

but not be limited to, the number of treatments by client, unit or like

grouping, responsible physician, and client characteristics.  The statistical

record shall be made available to the Division Director on a monthly basis.

 

History Note:        Authority G.S. 122C‑51; 122C‑56;

122C‑57; 131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. July 1, 1989.

 

10A ncac 28D .0203       GENERAL POLICIES REGARDING INTERVENTIVE

PROCEDURES

(a)  This Rule governs the policies and requirements

regarding the use of the following interventions:

(1)           seclusion;

(2)           physical restraint including:

(A)          mechanical restraint; or

(B)          manual restraint;

(3)           isolation time-out;

(4)           exclusionary time-out for more than 15

minutes;

(5)           time-out

for more than one hour;

(6)           protective

devices when used for behavioral control;

(7)           contingent withdrawal or delay of access to

personal possessions or goods to which the client would ordinarily be entitled;

(8)           consistent deprivation of items or

cessation of an activity which the client is scheduled to receive (other than

basic necessities); and

(9)           overcorrection which the client resists.

(b)  The  state facility director shall develop policies and

procedures for those interventions determined to be acceptable for use in the

state facility.  Such policies and procedures shall include that:

(1)           positive alternatives and less restrictive

alternatives are considered and used whenever possible prior to the use of

seclusion, physical restraint or isolation time-out; and

(2)           consideration is given to the client's

physical and psychological well-being before, during and after utilization of a

restrictive intervention, including:

(A)          review of the client's health history or the

comprehensive health assessment conducted upon admission to a facility. The

health history or comprehensive health assessment shall include the

identification of pre-existing medical conditions or any disabilities and

limitations that would place the client at greater risk during the use of

restrictive interventions;

(B)          continuous assessment and monitoring of the physical

and psychological well-being of the client and the safe use of physical

restraint throughout the duration of the restrictive intervention by staff who

are physically present and trained in the use of emergency safety

interventions;

(C)          continuous monitoring of the client’s physical and

psychological well-being by an individual trained in the use of cardiopulmonary

resuscitation during the use of manual restraint; and

(D)          continued monitoring of the client’s physical and

psychological well-being by an individual trained in the use of cardiopulmonary

resuscitation for a minimum of 30 minutes subsequent to the termination of a

restrictive intervention;

(3)           procedures for ensuring that the competent

adult client or legally responsible person of a minor client or incompetent

adult client is informed in a manner he or she can understand:

(A)          of the general types of intrusive interventions that

are authorized for use by the state facility; and

(B)          that the legally responsible person can request

notification of each use of an intervention as specified in this Rule, in

addition to those situations required by G.S. 122C‑62;

(4)           provisions for humane, secure and safe

conditions in areas used for the intervention, such as ventilation,  light and

a room temperature consistent with the rest of the state facility;

(5)           attention paid to the need for fluid

intake and the provision of regular meals,  bathing and the use of the toilet. 

Such attention shall be documented in the client record; and

(6)           procedures for assuring that when an

intervention as specified in this Rule has been used with a client three or

more times in a calendar month, the following requirements are met:

(A)          A treatment/habilitation plan shall be developed

within 10 working days of the third intervention. The treatment/habilitation

plan shall include, but not be limited to:

(i)            indication of need;

(ii)           specific description of problem behavior;

(iii)          specific goals to be achieved and estimated

duration of procedures;

(iv)          specific early interventions to prevent tension

from escalating to the point of loss of control whenever possible;

(v)           consideration, whenever possible, for client's

preference for the type of physical restraint to be used;

(vi)          specific procedure(s) to be employed;

(vii)         specific methodology of the intervention;

(viii)        methods for measuring treatment efficacy;

(ix)          guidelines for discontinuation of the procedure;

(x)           the accompanying positive treatment or

habilitation methods which shall be at least as strong as the negative aspects

of the plan;

(xi)          description and frequency of debriefing, if

determined to be clinically necessary;

(xii)         specific limitations on approved uses of the

intervention per episode, per day and requirements for on‑site

assessments by the responsible professional; and

(xiii)        description of any requirements in Rule .0206 of

this Section to be incorporated into the plan;

(B)          In emergency situations, with the approval of the

state facility director, the treatment/habilitation team may continue to use

the intervention until the planned intervention is addressed in the

treatment/habilitation plan;

(C)          The treatment/habilitation team shall explain the

intervention and the reason for the intervention to the client and the legally

responsible person, if applicable, and document such explanation in the client

record;

(D)          Before implementation of the planned intervention,

the treatment/habilitation team, with the participation of the client and

legally responsible person if applicable, shall approve the

treatment/habilitation plan and consent shall be obtained as specified in Rule

.0210(e) in this Section;

(E)           The use of the intervention shall be reviewed at

least monthly by the treatment/habilitation team and at least quarterly, if

still in effect, by a designee of the state facility director.  The designee of

the state facility director may not be a member of the client's

treatment/habilitation team.  Reviews shall be documented in the client record;

(F)           Treatment/habilitation plans which include these

interventions shall be subject to review by the Human Rights Committee in

compliance with confidentiality rules as specified in 10A NCAC 28A;

(G)          Each treatment/habilitation team shall maintain a

record of the use of the intervention.  Such records or reports shall be

available to the Human Rights Committee and internal client advocate within the

constraints of 10A NCAC 26B .0209 and G.S. 122C‑53(g);

(H)          The state facility director shall follow the Right

to Refuse Treatment Procedures as specified in Section .0300 of this

Subchapter; and

(I)            The interventions specified in this Rule shall

never be the sole treatment modality designed to eliminate the target

behavior.  The interventions are to be used consistently and shall always be

accompanied by positive treatment or habilitation methods.

(c)  Whenever the interventions specified in this Subchapter

other than seclusion, physical restraint or isolation time-out result in the

restriction of a right specified in G.S. 122C‑62(b) and (d), the

procedures specified in G.S. 122C‑62(e) shall be followed.  The

requirements for restriction of rights associated with the use of seclusion,

physical restraint or isolation time-out are specified in Paragraph (f) of Rule

.0206 of this Section.

(d)  The state facility director shall assure by

documentation in the personnel records that state facility employees who

authorize interventions shall be qualified professionals and state facility

employees who implement interventions shall be trained and shall demonstrate

competence in the area of such interventions, as well as in the use of

alternative approaches.

(e)  The state facility director shall maintain a

statistical record that reflects the frequency and duration of the individual

uses of interventions specified in this Rule.  This statistical record shall be

made available to the Human Rights Committee and the Division at least

quarterly.

 

History Note:        Authority G.S. 122C‑51; 122C‑53;

122C‑60; 122C‑62; 131E-67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. November 1, 1993; July 1, 1989;

Temporary Amendment Eff. January 1, 2001;

Temporary Amendment Expired October 13, 2001;

Amended Eff. April 1, 2003.

 

10A ncac 28D .0204       INDICATIONS FOR USE OF SECLUSION AND

ISOLATION TIME-OUT

Seclusion and isolation time-out shall be used only:

(1)           in those situations specified in G.S. 122C-60;

(2)           after less restrictive measures have been attempted

and have proven ineffective. Less restrictive measures that shall be considered

include:

(a)           counseling;

(b)           environmental changes;

(c)           education techniques; and

(d)           interruptive or re-direction techniques; and

(3)           after

consideration of the client's physical and psychological well-being as

specified in Rule .0203(b) of this Section.

 

History Note:        Authority G.S. 122C‑51; 122C‑53;

122C‑60; 122C‑62; 143B‑147;

Eff. October 1, 1984;

Amended Eff. November 1, 1993; April 1, 1990; July 1, 1989;

Temporary Amendment Eff. January 1, 2001;

Amended Eff. August 1, 2002.

 

10A ncac 28D .0205       INDICATIONS FOR USE OF PHYSICAL

RESTRAINTS

Physical restraints shall be used only:

(1)           in those situations specified in G.S. 122C-60;

(2)           after consideration of the client's physical and

psychological well-being as specified in Rule .0203(b) of this Section; and

(3)           after a less restrictive alternative has been

attempted or has been determined and documented to be clinically inappropriate

or inadequate to avoid injury.  Less restrictive alternatives that shall be

considered include but are not limited to:

(a)           counseling;

(b)           environmental changes;

(c)           education techniques; and

(d)           interruptive or re-direction techniques.

 

History Note:        Authority G.S. 122C‑51; 122C‑53;

122C‑60; 122C‑62; 143B‑147;

Eff. October 1, 1984;

Amended Eff. November 1, 1993; April 1, 1990; July 1, 1989;

Temporary Amendment Eff. January 1, 2001;

Amended Eff. August 1, 2002.

 

10A ncac 28D .0206       PROCEDURES: SECLUSION, physical

RESTRAINTS, OR ISOLATION TIME OUT

(a)  This Rule delineates the procedures to be followed for

use of seclusion, physical restraint or isolation time-out in addition to the

procedures specified in Rule .0203 of this Section.

(b)  This Rule governs the use of physical or behavioral

interventions which are used to terminate a behavior or action in which a

client is in imminent danger of injury to self or other persons or when

property damage is occurring that poses imminent risk of danger, of injury or

harm to self or others, or which are used as a measure of therapeutic

treatment.  Such interventions include seclusion, physical restraint and

isolation time-out.

(c)  If determined to be acceptable for use within the state

facility, the state facility director shall establish written policies and

procedures that govern the use of seclusion, physical restraint or isolation

time-out which shall include the following:

(1)           techniques for seclusion, physical restraint

or isolation time-out;

(2)           provision for required debriefing for

emergency use of seclusion, physical restraint or isolation time-out;

(3)           provision, to both new clinical and

habilitation staff as part of in-service training, and as a condition of continued

employment, for those authorized to use or apply intrusive interventions which

shall include, but not be limited to:

(A)          competency-based training and periodic reviews on

the use of seclusion, physical restraint or isolation time-out; and

(B)          skills for less intrusive interventions specified in

Rules .0203 and .0204 of this Section;

(4)           process for identifying, training and

assessing the competence of state facility employees who are authorized to use

such interventions;

(5)           provisions that a responsible professional

shall:

(A)          meet with the client and review the use of the

intervention as soon as possible but at least within one hour after the

initiation of its use;

(B)          verify the inadequacy of positive alternatives and

less restrictive intervention techniques;

(C)          document in the client record evidence of approval

or disapproval of continued use; and

(D)          inspect to ensure that any devices to be used are in

good repair and free of tears and protrusions;

(6)           procedures for documenting the intervention

which occurred to include, but not be limited to:

(A)          consideration that was given to the physical and

psychological well-being of the client prior to the use of the restrictive

intervention;

(B)          the rationale for the use of the intervention which

addresses attempts at and inadequacy of positive alternatives and less

restrictive intervention techniques; this shall contain a description of the

specific behaviors justifying the use of seclusion, physical restraint or

isolation time-out;

(C)          notation of the frequency, intensity and duration of

the behavior and any precipitating circumstances contributing to the onset of

the behavior;

(D)          description of the intervention and the date, time

and duration of its use;

(E)           estimated amount of additional time needed in

seclusion, physical restraint or isolation time-out;

(F)           signature and title of the state facility employee

responsible for the use of the intervention;

(G)          the time the responsible professional met with the

client; and

(H)          description of the debriefing and planning with the

client and the legally responsible person, if applicable, as specified in

Subparagraph (c)(2) of this Rule, or Subpart (b)(6)(A)(xi) of Rule .0203 of

this Section, to eliminate or reduce the probability of the future use of

restrictive interventions; and

(7)           procedures for the notification of others

to include:

(A)          those to be notified as soon as possible but no more

than one working day after the behavior has been controlled to include:

(i)            the treatment/habilitation team, or its designee,

after each use of the intervention;

(ii)           a designee of the State Facility Director; and

(iii)          the internal client advocate, in accordance

with the provisions of G.S. 122C-53(g); and

(B)          immediate notification of the legally responsible

person of a minor client or an incompetent adult client unless she/he has

requested not to be notified.

(d)  Seclusion, physical restraint and isolation time-out

shall not be employed as coercion, punishment or retaliation or for the

convenience of staff or due to inadequate staffing or be used in a manner that

causes harm or pain to the client.  Care shall be taken to minimize any

physical or mental discomfort in the use of these interventions.

(e)  Whenever a client is in seclusion, physical restraint

or isolation time-out, the client's rights, as specified in G.S. 122C-62, are

restricted.  The documentation requirements in this Rule shall satisfy the

requirements specified in G.S. 122C-62(e) for restriction of rights.

(f)  Whenever seclusion, physical restraint or isolation

time-out is used more than three times in a calendar month:

(1)           a pattern of behavior has developed and

future emergencies can be reasonably predicted;

(2)           dangerous behavior can no longer be

considered unanticipated; and

(3)           emergency procedures shall be addressed as

a planned intervention in the treatment/habilitation plan.

(g)  In addition to the requirements in this Rule,

additional safeguards as specified in Rule .0208 of this Section shall be

initiated whenever:

(1)           a client exceeds spending 40 hours in

emergency seclusion, physical restraint or isolation timeout in a calendar

month; or one episode in which the original order is renewed for up to a total

of 24 hours in accordance with the limits specified in Subparagraph (l)(8) of

this Rule; or

(2)           seclusion, physical restraint or isolation

time-out is:

(A)          used as a measure of therapeutic treatment as

specified in G.S. 122C-60; and

(B)          limited to specific planned behavioral interventions

designed for the extinction of dangerous, aggressive or undesirable behaviors.

(h)  The written approval of the State Facility Director or

designee shall be required when the original order for seclusion, physical

restraint or isolation time-out  is renewed for up to a total of 24 hours in

accordance with the limits specified in Subparagraph (l)(8) of this Rule.

(i)  Standing orders or as needed (PRN) orders shall not be

used to authorize the use of seclusion, physical restraint or isolation

time-out.

(j)   A state facility employee shall remove the client from

seclusion, physical restraint or isolation time-out and seek medical attention

immediately if monitoring of the physical and psychological well-being of the

client indicates there is a risk to health or safety.

(k)  The client shall be removed from seclusion, physical

restraint or isolation time-out when the client no longer demonstrates the

behavior which precipitated the seclusion, physical restraint or isolation

time-out; however, if the client is unable to gain self-control within the time

frame specified in the authorization, a new authorization shall be obtained.

(l)  Whenever seclusion, physical restraint or isolation

time-out are used on an emergency basis prior to inclusion in the treatment/

habilitation plan, the following procedures shall be followed:

(1)           A state facility employee authorized to

administer emergency interventions may employ such procedures for up to 15

minutes without further authorization.

(2)           A qualified professional may authorize the

continued use of seclusion, physical restraint or isolation time-out for up to

one hour from the initial employment of the intervention if the qualified

professional:

(A)          has experience and training in the use of seclusion,

physical restraint or isolation time-out; and

(B)          has been approved to employ and authorize such

interventions.

(3)           If a qualified professional is not

immediately available to conduct a face-to-face assessment of the client, but

after discussion with the state facility employee, the qualified professional

concurs that the intervention is justified for longer than 15 minutes, then the

qualified professional:

(A)          may verbally authorize the continuation of the

intervention for up to one hour;

(B)          shall meet with and assess the client within one

hour after authorizing the continued use of the intervention; and

(C)          shall immediately consult with the professional

responsible for the client's treatment/habilitation plan, if the intervention

needs to be continued for longer than one hour.

(4)           The responsible professional shall

authorize the continued use of seclusion, physical restraint or isolation

time-out for periods over one hour.

(5)           If the responsible professional is not

immediately available to conduct a clinical assessment of the client but, after

consideration of the physical and psychological well-being of the client and

discussion with the qualified professional, concurs that the intervention is

justified for longer than one hour the responsible professional may verbally

authorize the continuation of the intervention until an on-site assessment of

the client can be made.  However, if such authorization cannot be obtained, the

intervention shall be discontinued.

(6)           If the responsible professional and the

qualified professional are the same person, the documentation requirements of

this Rule may be done at the time of the documentation required by Subparagraph

.0206(d)(5) of this Section. 

(7)           The responsible professional, or if the

responsible professional is unavailable, the on-service or covering 

professional, shall meet with and assess the client within three hours after

the client is first placed in seclusion, physical restraint or isolation

time-out, and document:

(A)          the reasons for continuing seclusion, physical

restraint or isolation time-out; and

(B)          the client's response to the intervention.  In

addition, the responsible professional shall provide an evaluation of the

episode and propose recommendations regarding specific means for preventing

future episodes.  Clients who have been placed in seclusion, physical restraint

or isolation time-out and released in less than three hours shall be examined

by the responsible professional who authorized the intervention no later than

24 hours after the episode.

(8)           Each written order for physical restraint,

seclusion or isolation timeout is limited to four hours for adult clients; two

hours for children and adolescent clients ages nine to 17; or one hour for

clients under the age of nine.  The original order shall only be renewed in

accordance with these limits for up to a total of 24 hours.

(9)           Each incident shall be reviewed by the

treatment team, which shall include possible alternative actions and specific

means for preventing future episodes.

(m)  While the client is in seclusion, physical restraint or

isolation time-out, the following precautions shall be followed:

(1)           Whenever a client is in seclusion:

(A)          periodic observation of the client shall occur at

least every 15 minutes to assure the safety of the client. Observation shall

include direct line of sight or the use of video surveillance that ensures that

the client is within the view of the state facility employee observing the

client;

(B)          attention shall be paid to the provision of regular

meals, bathing and the use of the toilet; and

(C)          such observation and attention shall be documented

in the client record.

(2)           Whenever a client is in physical restraint,

the facility shall provide:

(A)          the degree of observation needed to assure the

safety of the client placed in physical restraint. The degree of observation

needed is determined at the time of application of the physical restraint after

consideration of the following:

(i)            the type of physical restraint used;

(ii)           the individual client's situation, including 

physical and psychological well-being; and

(iii)          the existence of any specific manufacturer's

warning concerning the safe use of a  particular product.

Observation shall include direct line of

sight or the use of video surveillance that ensures that the client is within

the view of the state facility employee observing the client.  In no instance

shall observation be less frequent than at 15-minute intervals.

(B)          attention to the provision of regular meals, bathing

and the use of the toilet; and

(C)          documentation of the above observation and attention

in the client  record.

(3)           Whenever a client is in isolation time-out

there shall be:

(A)          a state facility employee in attendance with no

other immediate responsibility than to monitor the client who is placed in

isolation time-out;

(B)          continuous observation and verbal interaction with

the client when necessary to prevent tension from escalating; and

(C)          documentation of such observation and verbal

interaction in the client record.

(n)  After a restrictive intervention is utilized, staff

shall conduct debriefing and planning with the client and the legally

responsible person, if applicable, as specified in Subparagraph (d)(2) of this

Rule, or Subpart (b)(6)(A)(xi) of Rule .0203 of this Section, to eliminate or

reduce the probability of the future use of restrictive interventions. 

Debriefing and planning shall be conducted as appropriate to the level of

cognitive functioning of the client.

(o)  Reviews and reports on the use of seclusion, physical

restraint or isolation time-out shall be conducted as follows:

(1)           the State Facility Director or designee

shall review all uses of seclusion, physical restraint or isolation time-out

and investigate unusual patterns of utilization to determine whether such

patterns are unwarranted.  At least quarterly, the State Facility Director or

designee shall review all uses of seclusion and physical restraint to monitor

effectiveness, identify trends and take corrective action where necessary.

(2)           each State Facility Director shall maintain

a log which includes the following information on each use of seclusion,

physical restraint or isolation time-out:

(A)          name of the client;

(B)          name of the responsible professional;

(C)          date of each intervention;

(D)          time of each intervention;

(E)           duration of each intervention;

(F)           name of the state facility employee who implemented

the restrictive intervention;

(G)          date and time of the debriefing and planning

conducted with the client and the legally responsible person if applicable and

staff to eliminate or reduce the probability of  the future use of restrictive

interventions; and

(H)          negative effects of the restrictive intervention, if

any, on the physical and psychological well-being of the client.

(p)  The facility shall collect and analyze data on the use

of seclusion and physical restraint.  The data collected and analyzed shall

reflect for each incident:

(1)           the type of procedure used and length of

time employed;

(2)           alternatives considered or employed; and

(3)           the effectiveness of the procedure or

alternative employed.

The facility shall analyze the data on at least a quarterly

basis to monitor effectiveness, determine trends and take corrective action

where necessary.  The facility shall make the data available to the Secretary

of the Department of Health and Human Services upon request.

(q)  Nothing in this Rule shall be interpreted to prohibit

the use of voluntary seclusion, physical restraint or isolation time-out at the

client's request; however, the procedures in Paragraphs (a) through (p) of this

Rule shall apply.

 

History Note:        Authority G.S. 122C-51; 122C-53; 122C-57;

122C-60; 122C-62; 131E-67; 143B-147;

Eff. October 1, 1984;

Amended Eff. July 1, 1994; January 4, 1994; November 1, 1993; April 1, 1990;

Temporary Amendment Eff. January 1, 2001;

Temporary Amendment Expired October 13, 2001;

Amended Eff. April 1, 2003.

 

10A ncac 28D .0207       PROTECTIVE DEVICES

(a)  Whenever protective devices that cannot be removed at

will by the client are utilized, the state facility shall:

(1)           assure that the protective device shall be

used only to promote the client's physical safety;

(2)           assure that the factors putting the

client's physical safety at risk are fully explored and addressed in treatment

planning with the participation of the client and legally responsible person if

applicable;

(3)           document the utilization of protective device

in the client's nursing care plan, when applicable, and treatment/habilitation

plan;

(4)           document what positive alternatives and

less restrictive alternatives were considered, whether those alternatives were

tried, and why those alternatives were unsuccessful;

(5)           assure that the protective device is used

only upon the written order of a qualified professional that specifies the type

of protective device and the duration and circumstances under which the

protective device is used;

(6)           assure and document that the staff applying

the protective device is trained and has demonstrated competence to do so;

(7)           inspect to ensure that the devices are in

good repair and free of tears and protrusions;

(8)           determine, at the time of application of

the protective device, the degree of observation needed to assure the safety of

those placed in restraints.  The type of protective device used, the individual

patient situation, and the existence of any specific manufacturer's warning

concerning the safe use of a particular product shall all be considered in

determining the degree of observation needed.  Observation shall include direct

line of sight or the use of video surveillance.  In no instance shall

observation be less frequent than at 30-minute intervals.

(9)           assure that whenever the client is

restrained and subject to injury by another client, a state facility employee

shall remain present with the client continuously.

(10)         assure that the person is released as

needed, but at least every two hours;

(11)         re-evaluate need for and impact on client of

protective device at least every 30 days; and

(12)         assure that observations and interventions

shall be documented in the client record.

(b)  In addition to the requirements specified in Paragraph

(a) of this Rule, protective devices used for behavioral control shall comply

with the requirements specified in Rule .0203 of this Section.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

143B‑147;

Eff. October 1, 1984;

Amended Eff. November 1, 1993; July 1, 1989;

Temporary Amendment Eff. January 1, 2001;

Amended Eff. August 1, 2002.

 

10A NCAC 28D .0208       INTERVENTIONS REQUIRING ADDITIONAL

SAFEGUARDS

(a)  The interventions specified in this Rule present a

significant risk to the client and therefore require additional safeguards.

These procedures shall be followed in addition to the procedures specified in

Rule .0203 of this Section.

(b)  The following interventions are designed for the

primary purpose of reducing the incidence of aggressive, dangerous or

self-injurious behavior to a level which will allow the use of less intrusive

treatment/habilitation procedures.  Such interventions include the use of:

(1)           seclusion, physical restraint or isolation

time-out employed as a measure of therapeutic treatment;

(2)           seclusion, physical restraint or isolation

time-out used on an emergency basis more than 40 hours in a calendar month or

one episode in which the original order is renewed for up to a total of 24

hours in accordance with the limits specified in Subparagraph (l)(8) of Rule

.0206 of this Section;

(3)           unpleasant tasting substances;

(4)           planned non-attention to specific

undesirable behaviors when the target behavior is health threatening;

(5)           contingent deprivation of any basic

necessity;

(6)           contingent application of any noxious

substances which include but are not limited to noise, bad smells or splashing

with water; and

(7)           any potentially physically painful

procedure or stimulus which is administered to the client for the purpose of

reducing the frequency or intensity of a behavior.

(c)  Such interventions shall never be the sole treatment

modality for the elimination of target behavior.

(d)  The intervention shall always be accompa­nied by

positive treatment or habilitation methods which shall include, but not be

limited to:

(1)           the deliberate teaching and reinforcement

of behaviors which are non-injurious;

(2)           the improvement of conditions associated

with non-injurious behaviors such as an enriched educational and social

environment; and

(3)           the alteration or elimination of

environmental conditions which are reliably correlated with self-injury.

(e)  Prior to the implementation of any planned use of the

intervention the following written approvals and notifications shall be

obtained.  Documentation in the client record shall include:

(1)           approval of the plan by the

treatment/habilitation team;

(2)           that each client whose

treatment/habilitation plan includes interventions with reasonably foreseeable

physical consequences shall receive an initial medical examination and periodic

planned monitoring by a physician;

(3)           that the treatment/habilitation team shall

inform the internal client advocate that the intervention has been planned for

the client and the rationale for utilization of the intervention;

(4)           the treatment/habilitation team shall

explain the intervention and the reason for the intervention to the client and

the legally responsible person, if applicable;

(5)           the prior written consent of the client or

his legally responsible person shall be obtained except for those situations

specified in Rule .0206(g)(1) in this Section.  If the client or legally

responsible person refuses the intervention, the State Facility Director shall

follow the right to refuse treatment procedures as specified in this

Subchapter;

(6)           that the plan shall be reviewed and

approved by a review committee, designated by the State Facility Director,

which shall include that:

(A)          at least one member of the review committee shall be

qualified through experience and training to utilize the planned intervention;

and

(B)          no member of the review committee shall be a member

of the client's treatment team;

(7)           that the treatment/habilitation plan may be

reviewed and approved by the State Facility Director; and

(8)           if any of the persons or committees

specified in Subparagraphs (e)(1), (2), (4), (5) or (6) of this Rule do not

approve the continued use of a planned intervention, the planned intervention

shall be terminated.  The State Facility Director shall establish an appeal

mechanism for the resolution of any disagreement over the use of the

intervention.

(f)  Neither the consents nor the approvals specified in

Paragraph (e) of this Rule shall be valid for more than six months.  The

treatment/habilitation team shall re-evaluate the use of the intervention and

obtain the client's and legally responsible person's consent for continued use

of the intervention at least every six months.

(g)  The plan shall be reviewed at the meeting of the Human

Rights Committee following each evaluation within the constraints of 10A NCAC

28A .0209.  The Committee, by majority vote, may recommend approval or

disapproval of the plan to the State Facility Director or may abstain from

making a recommendation.  If the State Facility Director does not agree with

the decision of the Committee, the Committee may appeal the issue to the

Division in accordance with the provisions of 10A NCAC 28A .0208.

(h)  The intervention shall be used only when the

treatment/habilitation team has determined and documented in the client record

the following:

(1)           that the client is engaging in behaviors

that are likely to result in injury to self or others;

(2)           that other methods of treatment or

habilitation employing less intrusive interventions are not appropriate;

(3)           the frequency, intensity and duration of

the target behavior, and the behavior's probable antecedents and consequences;

and

(4)           it is likely that the intervention will

enable the client to stop the target behavior.

(i)  The treatment/habilitation team shall designate a state

facility employee to maintain written records on the application of the

intervention and accompanying positive procedures.  These records shall include

the following:

(1)           data which reflect the frequency, intensity

and duration with which the targeted behavior occurs (scientific sampling

procedures are acceptable);

(2)           data which reflect the frequency, intensity

and duration of the intervention and any accompanying positive procedures; and

(3)           data which reflect the state facility

employees who administered the interventions.

(j)  The interventions shall be evaluated at least weekly by

the treatment team or its designee and at least monthly by the State Facility

Director.  The designee of the State Facility Director shall not be a member of

the client's treatment/habilitation team. Reviews shall be documented in the

client record.

(k)  During the use of the intervention, the Human Rights

Committee shall be given the opportunity to review the treatment/ habilitation

plan within the constraints of 10A NCAC 28A .0209.

 

History Note:        Authority G.S. 122C-51; 122C-53; 122C-60;

122C-62; 143B-147;

Eff. November 1, 1993;

Amended Eff. October 1, 2004; July 1, 1994.

 

10A ncac 28D .0209       TRAINING:  EMPHASIS ON ALTERNATIVES TO

RESTRICTIVE INTERVENTIONS

(a)  Facilities shall implement policies and practices that

emphasize the use of alternatives to seclusion, physical restraint and

isolation time-out.

(b)  Prior to providing services to people with

disabilities, staff including service providers, employees, students or

volunteers, shall demonstrate competence by successfully completing training in

communication skills and other strategies for creating an environment in which

the likelihood of imminent danger of abuse or injury to a person with

disabilities or others, or to property is prevented.

(c)  Provider agencies shall establish training based on

state competencies, monitor for internal compliance and demonstrate they acted

on data gathered.

(d) The training shall be competency based, include

measurable learning objectives, measurable testing (written and by observation

of behavior) on those objectives and measurable methods to determine passing or

failing the course.

(e)  Formal refresher training shall be completed at least

annually by each service provider.

(f)  Content of the training that the service provider plans

to use shall be approved by the Division of MH/DD/SAS pursuant to Paragraph (g)

of this Rule.

(g)  Staff shall demonstrate competence in the following

core areas:

(1)           knowledge and understanding of the people

being served;

(2)           recognizing and interpreting human

behavior;

(3)           recognizing the effect of internal and

external stressors that may affect people with disabilities;

(4)           strategies

for building positive relationships with people with disabilities;

(5)           recognizing

cultural, environmental and organizational factors that may affect people with

disabilities;

(6)           recognizing the importance, and assisting

people with disabilities in making decisions about their life;

(7)           skills in assessing individual risk for

escalating behavior;

(8)           communication strategies for defusing and

de-escalating potentially dangerous behavior; and

(9)           positive behavioral supports (providing

means for people with disabilities to choose activities which directly oppose

or replace behaviors which are unsafe).

(h)  Service providers shall maintain documentation of

initial and refresher training for at least three years.

(1)           Documentation shall include:

(A)          who participated in the training and the outcomes

(pass/fail);

(B)          when and where they attended; and

(C)          instructor's name.

(2)           The Division of MH/DD/SAS may request and

review this documentation at any time.

(i)  Instructor Qualifications and Training Requirements:

(1)           Trainers shall demonstrate competence by

scoring 100% on testing in a training program aimed at preventing, reducing and

eliminating the need for seclusion, physical restraint and isolation time-out.

(2)           Trainers shall demonstrate competence by

scoring a passing grade on testing in an instructor training program.

(3)           The training shall be competency-based,

include measurable learning objectives, measurable testing (written and by

observation of behavior) on those objectives and measurable methods to

determine passing or failing the course.

(4)           The content of the instructor training the

service provider plans to employ shall be approved by the Division of MH/DD/SAS

pursuant to Subparagraph (i)(5) of this Rule.

(5)           Acceptable instructor training programs

shall include but not be limited to presentation of:

(A)          understanding the adult learner;

(B)          methods for teaching content of the course;

(C)          methods for evaluating trainee performance; and

(D)          documentation procedures.

(6)           Trainers shall have coached experience

teaching a training program aimed at preventing, reducing and eliminating the

need for physical restraint, seclusion and isolation time-out at least one

time, with a positive review by the coach.

(7)           Trainers shall teach a training program

aimed at preventing, reducing and eliminating the need for seclusion, physical

restraint and isolation time-out at least once annually.

(8)           Trainers shall complete a refresher

instructor training at least every two years.

(j)  Service

providers shall maintain documentation of initial and refresher instructor

training for at least three years.

(1)     Documentation

shall include:

(A)               

who participated in the training and the outcomes (pass/fail);

(B)               

when and where attended; and

(C)               

instructor's name; and

(2)           The

Division of MH/DD/SAS may request and review this documentation at any time.

(k)  Qualifications of Coaches:

(1)           Coaches shall meet all preparation

requirements as a trainer.

(2)           Coaches shall teach at least three times

the course which is being coached.

(3)           Coaches shall demonstrate competence by

completion of coaching or train-the-trainer instruction.

(l) 

Documentation shall be the same preparation as for trainers.

 

History Note:        Authority G.S 143B-147;

Temporary Adoption Eff. February 1, 2001;

Temporary Adoption Expired October 13, 2001;

Amended Eff. April 1, 2003.

 

10A ncac 28D .0210       training in seclusion, physical

restraint and isolation time-out

(a)  Seclusion, physical restraint and isolation time-out

may be employed only by staff who have been trained and have demonstrated

competence in the proper use of and alternatives to these procedures.

Facilities shall ensure that staff authorized to employ and terminate these

procedures are retrained at least annually and have demonstrated competence.

(b)  Prior to providing direct care to people with

disabilities whose treatment/habilitation plan includes restrictive

interventions, staff including service providers, employees, students or

volunteers, shall complete training in the use of seclusion, physical restraint

and isolation time-out and shall not use these interventions until the training

is completed and competence is demonstrated.

(c)  A prerequisite for taking this training is

demonstrating competence by completion of training in preventing, reducing and

eliminating the need for seclusion, physical restraint and isolation time-out.

(d) The training shall be competency-based, include

measurable learning objectives, measurable testing (written and by observation

of behavior) on those objectives and measurable methods to determine passing or

failing the course.

(e)  Formal refresher training shall be completed by each

service provider periodically (minimum annually).

(f)  Content of the training that the service provider plans

to employ shall be approved by the Division of MH/DD/SAS pursuant to Paragraph

(g) of this Rule.

(g)  Acceptable training programs shall include, but not be

limited to, presentation of:

(1)           refresher information on alternatives to

the use of seclusion, physical restraint and isolation time-out;

(2)           guidelines on when to intervene

(understanding imminent danger to self and others);

(3)           emphasis on safety and respect for the

rights and dignity of all persons involved (using concepts of least restrictive

interventions and incremental steps in an intervention);

(4)           strategies for the safe implementation of

seclusion, physical restraint and isolation time-out;

(5)           the use of emergency safety interventions

which include continuous assessment and monitoring of the physical and

psychological well-being of the client and the safe use of restraint throughout

the duration of the restrictive intervention;

(6)           prohibited procedures;

(7)           debriefing strategies, including importance

and purpose; and

(8)           documentation methods and procedures.

(h)  Service providers shall maintain documentation of

initial and refresher training for at least three years.

(1)           Documentation shall include:

(A)          who participated in the training and the outcomes

(pass/fail);

(B)          when and where they attended; and

(C)          instructor's name.

(2)           The Division of MH/DD/SAS may request and

review this documentation at any time.

(i)  Instructor Qualifications and Training Requirements: 

(1)           Trainers shall demonstrate competence by

scoring 100% on testing in a training program aimed at preventing, reducing and

eliminating the need for seclusion, physical restraint and isolation time-out.

(2)           Trainers shall demonstrate competence by

scoring 100% on testing in a training program teaching the use of seclusion,

physical restraint and isolation time-out.

(3)           Trainers shall demonstrate competence by

scoring a passing grade on testing in an instructor training program.

(4)           The training shall be competency-based,

include measurable learning objectives, measurable testing (written and by

observation of behavior) on those objectives and measurable methods to determine

passing or failing the course. The content of the instructor training the

service provider plans to employ shall be approved by the Division of MH/DD/SAS

pursuant to Subparagraph (i)(6) of this Rule.

(5)           The content of the instructor training the service

provider plans to employ shall be approved by the Division of MH/DD/SAS

pursuant to Subparagraph (i)(6) of this Rule.

(6)           Acceptable

instructor training programs shall include, but not be limited to, presentation

of:

(A)          understanding the adult learner;

(B)          methods for teaching content of the course;

(C)          evaluation of trainee performance; and

(D)          documentation procedures.

(7)           Trainers shall be retrained at least

annually and demonstrate competence in the use of seclusion, physical restraint

and isolation time-out, as specified in Paragraph (a) of this Rule.

(8)           Trainers shall be currently trained in CPR.

(9)           Trainers shall have coached experience in

teaching the use of seclusion, physical restraint and isolation time-out at

least two times with a positive review by the coach.

(10)         Trainers shall teach a program on the use of

seclusion, physical restraint and isolation time-out at least once annually.

(11)         Trainers shall complete a refresher

instructor training at least every two years.

(j)  Service providers

shall maintain documentation of initial and refresher instructor training for

at least three years.

(1)           Documentation

shall include:

(A)          who participated in

the training and the outcome (pass/fail);

(B)          when and where they

attended; and

(C)          instructor's name.

(2)           The Division of MH/DD/SAS may request and

review this documentation at any time.

(k)  Qualifications of Coaches:

(1)           Coaches shall meet all preparation

requirements as a trainer.

(2)           Coaches shall teach at least three times

the course which is being coached.

(3)           Coaches shall demonstrate competence by

completion of coaching or train-the-trainer instruction.

(l) 

Documentation shall be the same preparation as for trainers.

 

History Note:        Authority G.S 143B-147;

Temporary Adoption Eff. February 1, 2001;

Temporary Adoption Expired October 13, 2001;

Eff. April 1, 2003.

 

SECTION .0300 ‑ RIGHT TO REFUSE TREATMENT

 

10A NCAC 28D .0301       THERAPEUTIC AND DIAGNOSTIC PROCEDURES

(a)  In addition to the treatment procedures specified in

G.S. 122C‑57(f), other intrusive procedures which are not routine medical

diagnostic or treatment procedures shall require the express and informed

written consent of the client or his legally responsible person prior to their

initiation except in medical emergencies.  Such procedures shall include but

are not limited to the following:

(1)           procedures that introduce radioactive dyes;

(2)           hyperalimentation;

(3)           endoscopy;

(4)           lumbar puncture;

(5)           prescribing and administration of the

following drugs:

(A)          Antabuse;

(B)          Clonodine when used for non‑FDA approved uses;

and

(C)          Depo‑Provera when used for non‑FDA

approved uses; and

(6)           neuroleptic drug therapy following the

diagnosis of tardive dyskinesia or after the symptoms of tardive dyskinesia

have appeared as observed by using a standardized abnormal involuntary movement

rating scale.

(b)  Non‑emergency surgery, and other therapeutic and

diagnostic procedures as specified in Paragraph (a) of this Rule, shall not be

performed on a client unless the client or his legally responsible person has

been provided with sufficient information concerning the proposed procedure in

order to make an educated decision about the treatment measure and has

consented in writing.

(c)  Emergency surgery may be performed on a client without

consent as specified in Paragraph (b) of this Rule only when:

(1)           immediate action is necessary to preserve

the life or health of the client;

(2)           the client is unconscious or otherwise

incapacitated so as to be incapable of giving consent;

(3)           in the case of a minor or incompetent adult

client, the consent of the legally responsible person cannot be obtained within

the time necessitated by the nature of the medical emergency, subject to the

provisions of G.S. 90‑21.1 et seq.; and

(4)           the attending physician and a second

physician certify in writing that the situation requires emergency surgery.

 

History Note:        Authority G.S. 90‑21.1; 90‑21.13;

122C‑51; 122C‑57; 131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0302       INTRUSIVE INTERVENTIONS

When a client or his legally responsible person refuses

treatment or habilitation utilizing interventions specified in Section .0200 of

this Subchapter in a non‑emergency situation, the following process shall

be followed for both voluntary and involuntary clients:

(1)           The responsible professional shall speak to the

client or legally responsible person, if applicable, and attempt to explain his

assessment of the client's condition, the reasons for recommending the

intervention, the benefits and risks, and the advantages and disadvantages of

alternative courses of action.  If the client or his legally responsible person

still refuses to participate and the responsible professional still believes

that these interventions are a necessary part of the client's treatment or

habilitation plan:

(a)           The responsible professional shall tell the

client and the legally responsible person, if applicable, that the matter will

be discussed at a meeting of the client's treatment/habilitation team;

(b)           If the client's condition permits, the

responsible professional shall invite the client and the legally responsible

person, if applicable, to attend the meeting of the treatment/habilitation

team; and

(c)           The responsible professional shall suggest

that the client and the legally responsible person, if applicable, discuss the

matter with a person of his own choosing such as a relative, friend, or

internal client advocate.

(2)           If a voluntary client or his legally responsible

person still refuses the intervention after the process in Paragraph (1) of

this Rule has been followed and if the use of the intervention is still

determined to be essential to the treatment or habilitation of the voluntary

client by the treatment/habilitation team and no alternative procedures are

appropriate, the treatment/habilitation team shall make a determination as to

whether the client meets the requirements for involuntary commitment.

(a)           If the client meets the requirements for

involuntary commitment, as specified in G.S. Chapter 122C, Article 5, the

treatment/habilitation team may make a written recommendation to the State

Facility Director requesting the initiation of commitment proceedings.

(b)           If the client does not meet the requirements

for involuntary commitment, as specified in G.S. Chapter 122C, Article 5, the

treatment/habilitation team may make a written recommendation to the State

Facility Director requesting the discharge of the client.

(c)           The State Facility Director may designate a

group to investigate the circumstances and to recommend appropriate action. 

Such a group shall include, but not be limited to, representatives from the

Human Rights Committee, client advocates, and qualified professionals in

supervisory positions.

(3)           Interventions as specified in Rules .0203 through

.0206 of this Subchapter shall not be administered to a voluntary client in a

non‑emergency situation if the client or his legally responsible person

refuses the intervention.

(4)           If an involuntary client or his legally responsible

person, if applicable, refuses treatment or habilitation utilizing

interventions specified in Rules .0203 through .0206 of this Subchapter in a

non‑emergency situation, after the process in Paragraph (1) of this Rule

has been followed and if the use of the intervention is still determined to be

essential to the treatment or habilitation of the involuntary client by the

treatment/habilitation team and no alternative approaches are appropriate, the

treatment/habilitation team shall meet to review the involuntary client's or

his legally responsible person's response and assess the need for the

intervention as follows:

(a)           If the client or legally responsible person

is present, the treatment/habilitation team shall attempt to formulate a

treatment or habilitation plan that is acceptable to both the client or legally

responsible person and the treatment/habilitation team.  The client or legally

responsible person may agree to participate in the treatment or habilitation

program unconditionally or under certain conditions that are acceptable to the

treatment/habilitation team.

(b)           If the client or legally responsible person

is not present, the treatment/habilitation team shall review its previous

recommendations and the client's response and shall document their decision in

the client record.

(5)           If, after reassessing the need for the

interventions, the treatment/habilitation team still believes that the

interventions are a necessary part of the involuntary client's treatment or

habilitation plan and the client or his legally responsible person, if

applicable, still refuses, the client's treating physician and another

physician, who may be the Clinical Director or his designee, shall interview

the client and review the record.  If both physicians determine that the

intervention is essential, in accordance with G.S. 122C‑57(e), the

intervention may be administered as part of the client's documented

individualized treatment or habilitation plan.

(6)           The treating physician shall document the decision

relative to the utilization of the intervention in the client record.  Such

documentation shall also include consideration of negative effects related to

the specific treatment/habilitation measure.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

SECTION .0400 ‑ REFUSAL OF PSYCHOTROPIC MEDICATION

 

10A NCAC 28D .0401       ADMINISTRATION OF MEDICATIONS IN AN

EMERGENCY

(a)  For the purposes of the rules in this Section,

"emergency" means a situation in which a client is in imminent danger

of causing physical harm to self or other persons unless there is rapid

intervention by the state facility employee in the form of the administration

of psychotropic medication.

(b)  When a client in a state facility refuses psychotropic

medication in a situation that constitutes an emergency, the Director of

Clinical Services may authorize administration of the psychotropic medication

upon written certification that psychotropic medication is essential in order

to prevent the client from causing imminent physical harm to self or other

persons.

(c)  If it is impossible to comply with the procedure in

Paragraph (b) of this Rule without jeopardizing the life of the client or other

persons, the medication may be administered upon a physician's written or

verbal order.

(d)  In any situation falling within Paragraph (b) or (c) of

this Rule, the physician authorizing the psychotropic medication shall

immediately document the authorization with such documentation including a

statement describing the circumstances making the medication necessary and

setting forth the reasons why lesser intrusive alternative measures would not

have been adequate.

(e)  Within 24 hours, or when imminent danger has passed or

upon expiration of the physician's order, whichever comes first, the use of

psychotropic medication shall be re‑evaluated by the physician. 

Continuation of the administration of psychotropic medication in an emergency

after the re‑evaluation by the physician shall be permitted for up to 48

hours after written approval by the Clinical Director.  If the emergency no

longer exists then the procedures specified in Rules .0403 and .0404 of this

Section shall apply.

(f)  The occurrence of three emergency episodes within a 30‑day

period where psychotropic medications are administered shall constitute the

need for the treatment team to review the treatment/habilitation plan.  The

treatment team shall develop a plan to respond to future crisis situations.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. July 1, 1989.

 

10A NCAC 28D .0402       BEST INTEREST TEST

(a)  The responsible professional shall document in the

client record that the administration of psychotropic medication against the

client's will is in the best interest of the client.  "Psychotropic

medication administration is in the best interest of the client" means

that:

(1)           the client presents an imminent physical

threat to himself, other clients, or state facility employee (Behavior

constituting such threat shall be explicitly documented in the client record);

(2)           the client is incapable without medication

of participating in any treatment or habilitation plan available at the state

facility that will give him a realistic opportunity of improving his condition;

or

(3)           although it is possible to devise a treatment

or habilitation plan without psychotropic medication which will give the client

a realistic opportunity of improving his condition, there is a significant

possibility that the client will harm himself or others before improvement of

his condition is realized if medication is not administered.

(b)  In addition, the following factors shall be considered

when determining if psychotropic medication administration is in the best

interest of the client, and the responsible professional shall document such considerations

in the client record:

(1)           the client's reason for refusing

medication;

(2)           the existence of any less intrusive

treatments; and

(3)           the risks involved and severity of side

effects associated with administration of the proposed medication.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0403       REFUSAL IN STATE FACILITIES OTHER THAN

MR CENTERS

(a)  This Rule applies to all state facilities with the

exception of mental retardation centers.  Mental retardation centers shall

comply with Rule .0404 of this Section.

(b)  In the case of an emergency, procedures specified in

Rule .0401 of this Section shall apply.

(c)  In the case of a client's refusal of psychotropic

medication in a non‑emergency, the best interest test as specified in

Rule .0402 of this Section shall apply.  A court order issued regarding the

administration of medication for forensic patients would take precedence over

this Rule.

(d)  Administration to Involuntary Clients.

(1)           When an involuntary client or his legally

responsible person refuses psychotropic medication in a situation that is not

an emergency, the following procedures are required:

(A)          The attending physician shall speak to the client or

legally responsible person, if applicable, and attempt to explain his

assessment of the client's condition, the reasons for prescribing the

medication, the benefits and risks of taking the medication, and the advantages

and disadvantages of alternative courses of action.  If the client or his

legally responsible person still refuses and the physician still believes that

psychotropic medication administration is in the best interest of the client as

specified in Rule .0402 of this Section:

(i)            the physician shall tell the client and the

legally responsible person, if applicable, that the matter will be discussed at

a meeting of the client's treatment team;

(ii)           if the client's clinical condition permits, the

physician shall invite the client and the legally responsible person, if

applicable, to attend the meeting of the treatment team; and

(iii)          the physician shall suggest that the client and

the legally responsible person, if applicable, discuss the matter with a person

of his own choosing, such as a relative, friend, guardian or client advocate.

(B)          The treatment team shall meet to review the client's

or legally responsible person's response and assess the need for psychotropic

medication.

(i)            If the client or legally responsible person is

present, the treatment team shall attempt to formulate a treatment or

habilitation plan that is acceptable to both the client or legally responsible

person and the treatment team.  The client or legally responsible person may

agree to take medication unconditionally or under certain conditions that are

acceptable to the treatment team.

(ii)           If the client or legally responsible person is

not present, the treatment team shall review its previous recommendations and

the client's response and shall document their decision in the client record.

(C)          If, after assessing the need, the treatment team

still believes that psychotropic medication administration is in the best

interest of the client as specified in Rule .0402 of this Section and the

client or legally responsible person still refuses administration of the

prescribed medication, the Director of Clinical Services or his physician designee,

who is not a member of the client's treatment team, shall interview the client

and review the record, and may approve the administration of the medication

over the objection of the client and legally responsible person.

(2)           Such refusal shall be documented in the

client record.

(e)  Administration to Voluntary Clients.

(1)           When a voluntary client in a state facility

refuses psychotropic medication in a non-emergency situation, the medication

shall not be administered to:

(A)          a competent adult client without the client's

consent;

(B)          an incompetent adult client without consent of the

legally responsible person; or

(C)          a minor client without the consent of the legally

responsible person.

(2)           Such refusal shall be documented in the

client record.

(f)  Independent Psychiatric Evaluation.

(1)           Whenever the Director of Clinical Services

is asked to review a psychotropic medication decision, the Director of Clinical

Services may retain an independent psychiatric consultant to evaluate the

client's need for psychotropic medication.  The use of a psychiatric consultant

may be particularly indicated in cases where there is a disagreement between

the prescribing physician and other members of the treatment team.

(2)           If the client is evaluated by an

independent psychiatric consultant, the Director of Clinical Services shall

file a report in the client record indicating:

(A)          the recommendation of the consultant; and

(B)          why the Director of Clinical Services made a

decision to follow, or not to follow, the consultant's recommendation.

(g)  Case Review by the Director of Clinical Services.

(1)           The Director of Clinical Services or his

physician designee shall review each week the treatment or habilitation program

of each client who is refusing to accept psychotropic medication administration

voluntarily to determine:

(A)          whether the client is still receiving the prescribed

medication;

(B)          whether psychotropic medication is still in the best

interest of the client as specified in Rule .0402 of this Section; and

(C)          whether the other components of the client's

treatment or habilitation plan are being implemented.

(2)           The Director of Clinical Services (not his

designee) shall review quarterly the treatment or habilitation program of each

client who is refusing to accept psychotropic medication administration

voluntarily to determine:

(A)          whether the client is still receiving the prescribed

medication;

(B)          whether psychotropic medication is still in the best

interest of the client as defined in Rule .0402 of this Section; and

(C)          whether the other components of the client's

treatment or habilitation plan are being implemented.

(h)  Documentation.

(1)           Each step of the procedures outlined in

Paragraphs (d) through (g) of this Rule shall be documented in the client

record.

(2)           Whenever the client or his legally

responsible person has refused the administration of psychotropic medication

and later agrees to such administration, the documentation of consent, either

verbal or written, shall be included in the client record.

(i)  A client's willingness to accept medications

administered by mouth in lieu of accepting medications administered by an

intramuscular route does not necessarily constitute consent.  The responsible

professional shall ensure that the client is indeed willing to accept the

medication and is not responding to coercion.

(j)  Statistical Record.  The State Facility Director shall

maintain a statistical record of the use of psychotropic medication against the

client's will which shall include, but not be limited to, the number of

administrations by client, unit of like grouping, responsible physician, and

client characteristics.  The statistical record shall be made available to the

Division Director and Human Rights Committee on a monthly basis.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

131E‑67; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.

 

10A NCAC 28D .0404       REFUSAL IN REGIONAL MENTAL RETARDATION

CENTERS

(a)  This Rule applies to mental retardation centers.  All

other state facilities shall comply with Rule .0403 of this Section.

(b)  In the case of an emergency, procedures specified in Rule

.0401 of this Section shall apply.

(c)  In the case of a client's refusal of psychotropic

medication in a non‑emergency, the best interest test as specified in

Rule .0402 of this Section shall apply.

(d)  Medication Refusal Incident Defined.

(1)           A medication refusal incident is defined as

any behavior on the part of the client, be it verbal or non‑verbal, or

legally responsible person, which is judged to be an attempt to communicate an

unwillingness to have psychotropic medication administered to the client.

(2)           Given the characteristics of the mentally

retarded population, some very common­place acts that may not necessarily

constitute refusal should be considered.  These may include:

(A)          passivity or the lack of active participation in

various activities which may require physical prompting such as hand over hand

manipulation in order to learn a particular skill or complete a particular

task;

(B)          spitting out medication because of objectionable

texture or taste (Therefore, disguising the texture or taste of psychotropic

medica­tion with a pleasant tasting vehicle such as applesauce or pudding may

not necessarily be considered administration against the client's will.); or

(C)          tantrums, self‑injurious behavior, aggressive

acts, etc. which would not automatically be judged to represent a client's

attempt to refuse medication.  However, it is recognized these behaviors in

some cases may indeed be the only form of communication a client may have with

which to express his or her refusal.

(e)  Administration of Medication in Non‑Emergency

Situations.  When a minor or adult client or his legally responsible person

refuses psychotropic medication in a situation that is not an emergency, the

following procedures are required:

(1)           If a state facility employee suspects that

a client may be attempting to refuse psychotropic medication, the state

facility employee shall notify the client's qualified mental retardation

professional (QMRP) and the client's internal advocate.

(2)           If the QMRP agrees that the client may be attempting

to refuse psychotropic medication, the QMRP shall notify the client's internal

advocate and shall assemble the client's treatment team, including the treating

physician, to assess the refusal incident.

(A)          In the case of a client who is suspected of

refusing, the team shall make a decision as to whether the client's behaviors,

be they verbal or non‑verbal, are true indications of refusal.  In those

instances where behavior is determined not to be refusal, authorization for the

continued administration of the psychotropic medication may be given.

(B)          In those cases where behaviors are judged to be

refusal or when refusal originates with the competent adult client or with the

client's legally responsible person, the client when possible or appropriate

and the legally responsible person shall be invited to meet with the team to

resolve the issue.

(C)          The physician shall explain the reasons for

prescribing the medica­tion, the benefits and risks of taking the medication

and the advantages and disadvantages of alternate courses of action.  The team

shall make every effort to develop a habilitation plan or specific form of

treatment that would be agreeable to the client or his legally responsible

person and still be consistent with the treatment needs of the client.

(3)           In those cases where an agreement cannot be

reached between the treatment team, including the physician, and the legally

responsible person, and the team, including the physician, still feels that

psychotropic medication administration is in the best interest of the client,

the issue shall be referred to the State Facility Review Committee appointed by

the State Facility Director.

(A)          The composition of this committee should include a

complement of professionals, including the Medical Director (or his designated

physician) and Human Rights Committee representatives.  The internal client

advocate shall be invited to represent the client's interest but not be

considered a member of the State Facility Review Committee.  The Committee

should not include state facility employees providing direct services to the

client refusing the psychotropic medication.  In any event, the confidentiality

regula­tions as codified in 10A NCAC 26B shall be followed.

(B)          As with the treatment team, the State Facility

Review Committee shall involve the client and the legally responsible person

where appropriate in an attempt to arrive at a mutually acceptable solution.

(C)          If agreement is reached between the legally

responsible person and the State Facility Review Committee, no further

proceedings are necessary. If agreement cannot be reached the State Facility

Review Committee shall forward its recommendations concerning any changes in

treatment or support of existing treatment methods to the Center Director.

(4)           If the State Facility Director receives

recommendations concerning any changes in treatment or support of existing

treatment methods regarding a specific client who has refused psychotropic

medications and this recommendation is still unacceptable to the legally

responsible person, the Center Director shall have, as the last alternative,

the authority to discharge the client under G.S. 122C‑57(d).  In those

cases where the Center Director makes the decision to discharge the client,

information shall be provided to the legally responsible person regarding the

grievance procedures as specified in 10A NCAC 26B .0203, .0204, and .0205.

(f)  Documentation.  Each step of the procedure outlined in

Paragraphs (d) through (e) of this Rule shall be documented in the client

record.

(g)  Statistical Record.  The State Facility Director shall

maintain a statistical record of the use of psychotropic medication against the

client's will which shall include, but not be limited to, the number of

administrations by client, unit of like grouping, responsible physician, and

client characteristics.  The statistical record shall be made available to the

Division Director and Human Rights Committee on a monthly basis.

 

History Note:        Authority G.S. 122C‑51; 122C‑57;

122C‑242; 143B‑147;

Eff. October 1, 1984;

Amended Eff. April 1, 1990; July 1, 1989.