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.
