Freedom of movement

1. Freedom of movement Training Module DDS Office for Human rights September 11, 2013

2. This module is intended to support the fundamental right to freedom of movement for all people. It gives program managers, house managers, administrators, human rights coordinators, human rights committee members and clinical staff of agencies an awareness of the boundaries for potential restrictions of movement that they may feel compelled to consider.

3. Only when a person is at risk of serious physical harm due to either a physiological, or medical condition, or procedure, or a threat to cause physical or emotional harm to their selves or others through their own behavior, can an ISP team consider restricting a person’s right to the freedom of movement. In a well defined emergency, programs do not need permission of the ISP team. They must be well trained, however, and prepared to handle such.

4. Rules Governing Limitations to the Right to Freedom of Movement~ * ~ * ~ * ~ * ~ * Broader Legal Scheme For Restrictions on Movement

5. Legal Framework Rules Governing Limitation of Movement Any action or device that limits the freedom of movement of any person must fit into one of the five categories authorized in 115 CMR 2.01 Limitation of Movement. The constitution thinks of this as part of the “Liberty” interest and the due process requirements are delegated to the states to detail. Therefore, any procedure that limits a person’s freedom of movement that is not reached by these categories may not be implemented! • Category 1. Emergency restraint, governed by 115 CMR 5.11 • Category 2. Transportation restraint governed by 115 CMR 5.13

6. Legal Framework Rules Governing Limitation of Movement (Continued) • Category 3. Support needed to achieve proper body position, or otherwise allow a person to safely participate in programming, or other daily living activity, per 115 CMR 5.12. • Category 4. Health Related Protections also per 115 CMR 5.12 • Category 5. Limitations implemented in accordance with behavior planning, per 115 CMR 5.14 • The Use of Any and All Categories of Limitation of Movement must be reported to the provider agency’s Human Rights Committee according to prescribed procedures

7. Rules Governing Limitation of MovementLegal Framework for category 1. LOMEmergency Restraint

8. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Emergency Defined Emergency means a reasonable person would perceive one or more of the following: • Present occurrence of serious self-injurious behavior • Present occurrence of serious physical assault. • Imminent threat of serious self-injurious behavior or behavior likely to lead to self-injury as person has ability and shown present inclination or intention to carry out this behavior immediately

9. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Emergency Defined (continued) D. Imminent threat of serious physical assault, person has present ability to assault, and has engaged in any act which indicates a present intention to carry out assault, immediately (imminent threat or occurrence of property damage, itself, is not an emergency, unless it has the potential to harm that person or others) • Imminent threat can involve a lot of judgment. A clinician, or clinical/ISP team may provide guidance in the form of a description, with observable criteria, for consideration as to how to determine imminent risk of harm to that person, or others, may be present!

10. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Other Rules (continued) Other rules include: • Use permitted only in an emergency; • Use only when less restrictive measures have failed, or professional judgment concludes these are not appropriate to the existing circumstance; • Use only for the period necessary to accomplish the purpose, but never longer than times allowed in 115 CMR 5.11 (6) (1 hour without renewal when authorized by “authorized staff person,” no more than 6 consecutive hours, or 8 hours of a 24 hour period); • No “P.R.N.” authorization (standing “as needed” order) is allowed.

11. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Other Rules (continued) • Seclusionof a person alone in a room or other area with egress blocked, absent a time out provision in a duly authorized behavior plan is prohibited. • Locked buildings prohibited, except as necessary for the safety of the occupants. • Restraint is not allowed as punishment. • Restraint is not allowed for convenience of staff.

12. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Other Rules (continued) • If a person is headed unassisted to a door to a busy street, or other specific point that could be harmful to them without help, and you use force over active resistance to prevent this, this is an emergency restraint. • If a person is headed to a door or other specific point and you gently guide them physically while encouraging them to go in another direction and they willingly go without struggle, this is not a restraint. • If you need to move a person to a specific destination to move them away from a situation and use force over active resistance, this is a physical escort form of emergency restraint.

13. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Other Rules (continued) • If one or two staff are holding a person in a comforting or gentle manner, they may do so for up to five minutes without it being considered an emergency restraint. • Comforting or gentle holding can be supports to a person experiencing a seizure, or to guide a person’s arms when they are having an episode of spasticity. It can also represent hand over hand instruction and other non-restrictive supports. • Restraint is not justified to address property damage, unless such damage includes throwing objects that have the capacity to cause serious harm to others.

14. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Documentation • All agencies are responsible for documenting any emergency restraint event in the on-line HCSIS restraint module. The agency has three calendar days to finalize the initial restraint form. • The Restraint Manager (intended to fill the role of the Head of Provider (HOP) in monitoring restraints-see definition in 115 CMR 2.01) has five calendar days from the event, to review and finalize their report on what happened. • Restraint Manager/HOP review should include a post-restraint review of the incident with those who were involved in the restraint.

15. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Documentation (continued) • The provider’s Human Rights Committee also needs to review each restraint and the Human Rights Coordinator shall report their findings into the HRC portion of the HCSIS restraint form. • Any safety checks should also be documented in the form.

16. Legal Framework Rules Governing Limitation on Movement Emergency Restraint • In order for any provider agency to utilize emergency restraints or physical holding in an addendum to a behavior support program, any staff being called on to implement such holding must be trained under the provisions of a program for restraint training curricula that is certified by DDS for these purposes. • No restraint technique may be used that is not found in the curriculum they use to train for these purposes.

17. For further rules governing use of emergency restraints see “Restraint Authorizer Legal” training atmass.gov/ddsand click on the human rights link. The curriculum can be found toward the bottom of the page.

18. Legal Framework for Category 1. LOMEmergency Restraint Application of Chemical Restraint

19. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Chemical Restraint • Chemical restraint is the involuntary administration (ie. person is not typically consulted) of a chemical agent to at least partially incapacitate a person in crisis. • Chemical restraint may only be initiated when a physician determines it the most appropriate alternative available for a person. This is typically rare and limited to supporting persons with frail bones when holding may be dangerous, or when restraints are historically exceptionally long.

20. Legal Framework Rules Governing Limitation on Movement Emergency Restraint – Chemical Restraint(continued) • Physician must either be present, or be consulted by phone by a registered nurse, nurse practitioner, or certified physician’s assistant who is present with the person. • If ordered by phone, the medication to use must be documented in the person’s medication treatment plan prior to implementation. • Order must be documented by the physician or medical professional consulting the physician

21. Legal Framework Chemical Restraint v. Other Boundaries Regarding Medication • PRN for treatment purpose is not a form of restraint. It must be bound by a clinically derived set of observable criteria issued to staff for use to determine when it may be needed. • Difference between PRN and chemical restraint is that a PRN helps person become more able to engage in program, while chemical restraint incapacitates a person.

22. Legal Framework Chemical Restraint v. Other Boundaries Regarding Medication(Continued) • Chemical relaxation for medical or dental treatment is not a restraint, but is deemed incidental to treatment. This means the role it plays is to help one more comfortably participate in the treatment intervention, it isn’t intended as treatment, itself. Use of the medication must still be consented to.

23. Legal Framework for Category 1. LOMEmergency Restraint Mechanical Restraint

24. Legal Framework Rules Governing Limitation on Movement 1. Emergency Restraint – Mechanical Restraint • No community provider may issue a mechanical restraint, other than for use of mitts, absent a waiver from the DDS Office for Human Rights, per 115 CMR 5.11 (6)(b)2. Please contact your Human Rights Specialist if you need more information on this. • Mitts or mechanical restraints, where applied, must be checked at least every 15 minutes for comfort, body alignment, and circulation by authorized staff person or staff in attendance (see 115 CMR 5.11 (6)(e)1. for staff in attendance and Restraint Legal Authorizer’s Curriculum for other rules)

25. Rules Governing Limitation on Movement Category 2. LOM Transportation Restraint

26. Rules Governing Category 2. LOM Transportation Restraint • Transportation restraint is a planned strategy involving more than a standard passenger seat belt, to support a person to safely participate in vehicular transport from one site to another. • The Team needs to identify the least restrictive means for accomplishing this, according to how and why they make their selves unsafe, and address it in a modification of the person’s ISP. • The Team further needs to identify any possible skill development, or strategies available for reducing or eliminating the need for such a restriction. • No HCSIS form is required if documentation for the intervention has fulfilled the above planning requirements. • HRC will review the plan and advocate for changes if needed.

27. Rules Governing Limitation on Movement Transportation Restraint – Unplanned • If a program responsible for transporting an individual experiences difficulty on the van on several occasions and conceives of a strategy for keeping the person safe, such as safety belts the person can’t undo, they may test their intervention, without the full planning/participation of the Team. • Any such trial is considered an unplanned use of a transportation restraint and must be reported in an incident report in HCSIS as “Unplanned Transportation Restraint.” These will be reviewed by the HRC as with all such incidents.

28. Rules Governing Limitation on MovementTransportation v.Emergency Restraint • Any time an emergency occurs during transport and the program has not prepared a strategy to use for this individual, nor is there any transportation restraint in the person’s ISP, it should be considered to be an emergency restraint and a HCSIS restraint form must be reported. • If this occurs more than twice in a week or three times a month after the first 24 hours, the Team should be convened to discuss the least restrictive manner for addressing this. • The agency’s Human Rights Committee will review with other restraints.

29. Rules Governing Category 2. LOM Transportation Restraint • The regulation discusses strategies to promote safe transport to and from the van. This was created to assist people safely to vans when subject to risks from wheelchair use, unsafe gait or when their anxieties, etc., may lead them to be unsafe in such transitions. • 115 CMR 5.11 (1) Definition of Terms: Transportation Restraint clearly states that this LOM may not be used for convenience of staff • Provision is not intended to provide cover for agency to move un-cooperative persons to and from the van or other vehicle by means of force, simply because they are choosing not to leave when it is time to do so.

30. Rules Governing Category 3. LOM Application of Supports for Proper Body Positioning and Safe Participation in Programming per 115 CMR 5.12

31. Rules Governing Category 3. LOMSupports for Proper Body Positioning and Safe Participation in Programming • This classification is intended to support persons who may need devices or other procedures to maintain body position in wheelchairs, helmets for drop seizures, or other devices, etc. to help a person safely participate in programming, due to whatever physical or medical frailty may cause the threat to their safety, absent the device or strategy. • While 115 CMR 5.12 (1) calls for a restraint form when using physical holding over active resistance for this process, this is in conflict with other regulatory citations and therefore, no longer required.

32. Rules Governing Category 3. LOMSupports for Proper Body Positioning and Safe Participation in Programming – (continued) • Any support in this category must be crafted by the Team, including a “qualified practitioner” (including possibly OT or PT, etc.) and placed in the ISP as the least intrusive approach to allow safe participation. • Procedures for safety checks and relief from any devices must be spelled out in the description. Trained staff should be supervised by qualified practitioner to oversee use of this procedure. • Team should consider if there are any strategies available to reduce or eliminate the need for such a support. • Tracking of the use of the strategy and its impacts should be maintained.

33. Rules Governing Category 3. LOMSupports for Proper Body Positioning and Safe Participation in Programming – (continued) • No support under this provision may be implemented and be in place contingent upon the presence of emergency behavior. Such a response reflects an emergency intervention, not a support.

34. Rules Governing Category 4. LOM Application of Health Related Protections

35. Rules Governing Category 4. LOMHealth Related Protections • These are physical or mechanical strategies ordered by a dentist or physician to support an individual during a dental or medical procedure, or while recovering from a wound or surgery. • Any staff assisting an individual in an appointment during which such an order is made should cooperate with the physician, unless they are aware of physical or emotional contraindications for the specific intervention ordered for this particular person. They should inform the dentist or physician of any such knowledge and determine the best course of action together.

36. Rules Governing Category 4. LOMHealth Related Protections(Continued) • If this is not already in the person’s ISP and it is the first time such an intervention under order of a dentist or physician is used, participating staff should report this to supervisors, and a HCSIS incident report form should be submitted under “Potential Mistreatment,” if concern exists whether appropriate, or “other,” whichever best reflects the judgment of those involved. • In this case the Team should meet and discuss if this is the least intrusive and most effective approach to use with this individual.

37. Rules Governing Limitation on MovementHealth Related Protections (Continued) • If the Team determines a more effective and less intrusive approach, they should identify an appropriate party to discuss this with the dentist or physician in advance of the next such procedure. • If the Team supports the medical professional’s judgment, all staff attending such appointments should be prepared to implement such a procedure (or any replacement procedure agreed to with the medical professional), which also has been placed in the person’s ISP, if there is an on-going need for the procedure.

38. Rules Governing Limitation on MovementHealth Related Protections (Continued) • 115 CMR 5.12 (1) orders staff to fill out a restraint form whenever using physical holding over active resistance has been required for such a procedure. This is in conflict with other regulatory references, so this is no longer required. • As with any limitation of movement the agency needs to present the plan for any such limitation to their Human Rights Committee for their review.

39. Rules Governing Category 5. LOMPer 115 CMR 5.14 Application of Behavioral Interventions Involving Holding or Other Limitations on Freedom of Movement

40. Rules Governing Category 5. LOMRestrictive Behavioral Interventions • Holding as an intervention must have a treatment purpose as derived from the functional assessment of the behavior to decrease, if intervention involves any form of physical or mechanical holding. • Such holding must not be contingent on the presence or imminent risk of physical or emotional harm, such as found in an emergency. Emergency responses are subject to Category 1. LOM, emergency restraints, under 115 CMR 5.11. This would represent a failure of treatment and is not consistent with a treatment purpose. • Must meet the requirements of the series of reviews found in 115 CMR 5.14 (4) (d), including Peer Review and HRC review and approval.

41. Rules Governing Category 5. LOMRestrictive Behavioral Interventions (Continued) • As with all restrictive interventions, such a plan must include interventions related to the functional role of the person’s behavior that provide for teaching new skills to replace the challenging or otherwise socially inappropriate behavior. • In the very near future these rules will be strengthened and physical holding against active resistance in emergency situations will not be allowed to be declared as having a treatment purpose and will always be treated as emergency restraints.

42. Rules Governing Category 5. LOMRestrictive Behavioral Interventions (Continued) • Use of time out procedures per 115 CMR 5.14 (2); 115 CMR 5.14 (3); and115 CMR 5.14 (4) (b) 10. are not deemed as seclusion, or a form of emergency restraint, though if the person is alone in the room with the door open, or the door is closed and staff is in the room, it still must not exceed 15 minutes. • No door may be closed by a lock, or by a device that keeps it closed when staff leave area.

43. Rules Governing Category 5. LOMRestrictive Behavioral Interventions (Continued) • Closed door time outs with the staff not present in the room have been determined to present more than a minimal risk of serious physical or emotional harm and as such deemed Level II interventions or subject to the rules for Intensive Behavior Support Plans. No such time out may exceed one fifteen minute period. Multiple time out periods consisting of more than 15 cumulative minutes are not allowed. • Staff not in the room must be able to see the person at all times.

44. Rules Governing Category 5. LOMRestrictive Behavioral Interventions (Continued) • As with all intrusive interventions, before time outs are proposed for use in a Level II or intensive behavior support plan, there must be a replacement behavior in the plan to provide teaching in a manner that replaces the function of the target behavior to decrease. This may eliminate or reduce the need for the time out provision.

45. Rules Governing Category 5. LOMRestrictive Behavioral Interventions (Continued) • Behavior Support Plans involving any intervention that is more than minimally restrictive, intrusive or limiting of freedom of movement must include all the provisions of 115 CMR 5.14 (4) for what is currently recognized as Level II behavior support plans (under current regulations for Behavior Modification). • Provision of baseline data in any plan is critical for use to measure the course of treatment over time. This includes data on treatment behavior to decrease, treatment behavior to increase and on-going data on the use of any intervention.

46. Rules Governing Category 5. LOMRestrictive Behavioral Interventions Positive Behavioral Supports • The Department is moving toward implementation of Positive Behavioral Supports which are defined as follows: Positive Behavioral Supports - A systematic, person-centered approach to understanding reasons for behavior and applying evidence-based practices for prevention, proactive intervention, teaching, and responding to behavior, with the goal of achieving meaningful social outcomes, facilitating learning, and enhancing quality of life across the life span.

47. Rules Governing Category 5. LOMRestrictive Behavioral Interventions Positive Behavioral Supports Positive Behavior Supports is Based on Three Tiers of Analysis and Response • Creating positive environments that take into consideration the needs and concerns of each individual, in relation to others. • Generic responses to low level behavioral concerns, based on a simple analysis of the reasons for the behavior including teaching and reinforcement procedures.

48. Rules Governing Category 5. LOMRestrictive Behavioral Interventions Positive Behavioral Supports • Intensive supports for a small number of people, focused on teaching new skills and safe supports that minimize or eliminate the need for restrictive management procedures. • As with current Level II interventions, these intensive plans will continue to be reviewed and approved or denied by HRC.

49. Rules Governing Category 5. LOMRestrictive Behavioral Interventions Positive Behavioral Supports • As DDS works in the next years to fully implement PBS more will be said in this module. For now, please understand that at core, for the most challenging behavior the goal is the same. We work hard to understand why someone is acting in harmful ways and work to determine how we may provide new skills to give them more healthy ways to communicate their needs.

50. Conclusions • All limitations on freedom of movement must be focused on the person and represent the least restrictive approach to solving a compelling problem • There are standards for who can craft each type of limitation, these guidelines are important. • All forms of limitation on the freedom of movement should be monitored at the implementing agency to ensure they obtain the stated goal.