HOUSE BILL NO. 4147

February 06, 2019, Introduced by Reps. Kennedy, Garza, Brenda Carter, Brixie, Gay-Dagnogo, Hertel, Coleman, Peterson, Cynthia Johnson, Chirkun, Yancey, Koleszar, Hood and Anthony and referred to the Committee on Families, Children, and Seniors.

"An act to provide for the protection of children through the licensing and regulation of child care organizations; to provide for the establishment of standards of care for child care organizations; to prescribe powers and duties of certain departments of this state and adoption facilitators; to provide penalties; and to repeal acts and parts of acts,"

(MCL 722.111 to 722.128) by adding sections 2f, 2g, 2h, 2i, 2j, 2k, 2l, and 2m.

the people of the state of michigan enact:

Sec. 2f. As used in this section and sections 2g to 2m:

(a) "Chemical restraint" means the administration of medication for the purpose of restraint.

(b) "Corporal punishment" means the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline.

(c) "De-escalation techniques" means evidence- and research-based strategically employed verbal or nonverbal interventions used to reduce the intensity of threatening behavior before, during, and after a crisis situation occurs.

(d) "Documentation" means documentation developed by the department that is uniform across the state.

(e) "Emergency physical restraint" means a last resort emergency safety intervention involving physical restraint that is necessitated by an ongoing emergency situation and that provides an opportunity for the child to regain self-control while maintaining the safety of the child and others. Emergency physical restraint does not include physical restraint that is used for the convenience of the child care center's, group child care home's, or family child care home's staff, as a substitute for an educational program, as a form of discipline or punishment, as a substitute for less restrictive alternatives, as a substitute for adequate staffing, or as a substitute for staff training in positive behavioral intervention and support. Emergency physical restraint does not include a practice prohibited under section 2h. Emergency physical restraint does not include physical restraint when contraindicated based on a child's disability, health care needs, or medical or psychiatric condition, as documented in a record or records made available to the child care center, group child care home, or family child care home.

(f) "Emergency seclusion" means a last resort emergency safety intervention involving seclusion that is necessitated by an ongoing emergency situation and that provides an opportunity for the child to regain self-control while maintaining the safety of the child and others. To qualify as emergency seclusion, there must be continuous observation by the child care center, group child care home, or family child care home staff of the child in seclusion, and the room or area used for confinement must comply with state and local fire and building codes; must not be locked; must not prevent the child from exiting the area if staff become incapacitated or leave that area; and must provide for adequate space, lighting, ventilation, viewing, and the safety and dignity of the child and others, in accordance with department guidelines. Emergency seclusion does not include the confinement of children who are severely self-injurious or suicidal; seclusion that is used for the convenience of staff, as a substitute for an educational program, as a form of discipline or punishment, as a substitute for less restrictive alternatives, as a substitute for adequate staffing, or as a substitute for staff training in positive behavioral intervention and support; or a practice prohibited under section 2h. Emergency seclusion does not include seclusion when contraindicated based on a child's disability, health care needs, or medical or psychiatric condition, as documented in a record or records made available to the child care center, group child care home, or family child care home.

(g) "Emergency situation" means a situation in which a child's behavior poses imminent risk to the safety of the individual child or to the safety of others. An emergency situation requires an immediate intervention.

(h) "Functional behavioral assessment" means an evidence- and research-based systematic process for identifying the events that trigger and maintain problem behavior in an educational setting. A functional behavioral assessment shall describe specific problematic behaviors, report the frequency of the behaviors, assess environmental and other setting conditions where problematic behaviors occur, and identify the factors that are maintaining the behaviors over time.

(i) "Key identified personnel" means those individuals who have received the mandatory training described in section 2m(b)(i) to (xvi).

(j) "Mechanical restraint" means the use of any device, article, garment, or material attached to or adjacent to a child's body to perform restraint.

(k) "Physical restraint" means restraint involving direct physical contact.

(l) "Positive behavioral intervention and support" means a framework to assist staff in adopting and organizing evidence-based behavioral interventions into an integrated continuum of intensifying supports based on child need that unites examination of the function of the problem behavior and the teaching of alternative skill repertoires to enhance academic and social behavior outcomes for all children.

(m) "Positive behavioral intervention and support plan" means a child-specific support plan composed of individualized, functional behavioral assessment-based intervention strategies, including, as appropriate to the child, guidance or instruction for the child to use new skills as a replacement for problem behaviors, some rearrangement of the antecedent environment so that problems can be prevented and desirable behaviors can be encouraged, and procedures for monitoring, evaluating, and modifying the plan as necessary.

(n) "Prone restraint" means the restraint of an individual facedown.

(o) "Regularly and continuously work under contract" means any of the following:

(i) To work at a child care center, group child care home, or family child care home on a more than intermittent or sporadic basis as an owner or employee of an entity that has a contract with the child care center, group child care home, or family child care home to provide food, custodial, transportation, counseling, or administrative services, or to provide instructional services to children or related and auxiliary services.

(ii) To work at a child care center, group child care home, or family child care home on a more than intermittent or sporadic basis as an individual under a contract with a child care center, group child care home, or family child care home to provide food, custodial, transportation, counseling, or administrative services, or to provide instructional services to children or related and auxiliary services.

(p) "Restraint" means an action that prevents or significantly restricts a child's movement. Restraint does not include the brief holding of a child in order to calm or comfort, the minimum contact necessary to physically escort a child from 1 area to another, the minimum contact necessary to assist a child in completing a task or response if the child does not resist or resistance is minimal in intensity or duration, or the holding of a child for a brief time in order to prevent an impulsive behavior that threatens the child's immediate safety, such as running in front of a car. Restraint does not include the administration of medication prescribed by and administered in accordance with the directions of a physician, an adaptive or protective device recommended by a physician or therapist when it is used as recommended, or safety equipment used by the general child population as intended, such as a seat belt or safety harness on school transportation. Restraint does not include necessary actions taken to break up a fight, to stop a physical assault, as defined in section 1310 of the revised school code, 1976 PA 451, MCL 380.1310, or to take a weapon from a child. Restraint does not include actions that are an integral part of a sporting event, such as a referee pulling football players off of a pile or a similar action.

(q) "Restraint that negatively impacts breathing" means any restraint that inhibits breathing, including floor restraints, facedown position, or any position in which an individual is bent over in such a way that it is difficult to breathe. This includes a seated or kneeling position in which an individual being restrained is bent over at the waist and restraint that involves sitting or lying across an individual's back or stomach.

(r) "Seclusion" means the confinement of a child in a room or other space from which the child is physically prevented from leaving. Seclusion does not include the general confinement of children if that confinement is an integral part of an emergency lockdown drill or of another emergency security procedure that is necessary to protect the safety of children.

(s) "Staff" or "staff member" includes all individuals employed in a child care center, group child care home, or family child care home or assigned to regularly and continuously work under contract or under agreement in a child care center, group child care home, or family child care home or child care center, group child care home, or family child care home personnel providing service at a child care center, group child care home, or family child care home.

Sec. 2g. Not later than December 1, 2019, the department shall develop a state policy regarding the use of seclusion and restraint in child care centers, group child care homes, and family child care homes that includes all of the elements under sections 2g to 2m, along with guidelines as the department considers appropriate. Not later than June 1, 2020, a child care center, group child care home, and family child care home shall adopt and implement a policy regarding the use of seclusion and restraint that is consistent with the state policy under this section. A person that fails to comply with this section or that fails to comply with any of the requirements of the state policy developed under this section is considered to have failed to comply with and to have violated this act.

Sec. 2h. The state policy developed under section 2g shall include a clear statement that all of the following practices are prohibited for staff in the child care centers, group child care homes, or family child care homes of this state under all circumstances, including emergency situations:

(a) Corporal punishment.

(b) The deprivation of basic needs.

(d) Seclusion, other than emergency seclusion.

(e) The intentional application of any noxious substance or stimulus that results in physical pain or extreme discomfort. A noxious substance or stimulus is prohibited whether it is generally acknowledged or is specific to the child.

(f) Mechanical restraint.

(g) Chemical restraint.

(h) Any restraint that negatively impacts breathing.

(i) Prone restraint.

(j) Physical restraint, other than emergency physical restraint.

(k) Any other type of restraint.

Sec. 2i. The state policy developed under section 2g shall include at least all of the following provisions concerning use of emergency seclusion and emergency physical restraint:

(a) Emergency seclusion and emergency physical restraint may be used only under emergency situations and only if essential to providing for the safety of the child or safety of another.

(b) Emergency seclusion and emergency physical restraint may not be used in place of appropriate less restrictive interventions.

(c) Emergency seclusion and emergency physical restraint shall be performed in a manner that, based on research and evidence, is safe, appropriate, and proportionate to and sensitive to the child's severity of behavior, chronological and developmental age, physical size, gender, physical condition, medical condition, psychiatric condition, and personal history, including any history of physical or sexual abuse or other trauma.

(d) A requirement that staff shall seek help from key identified personnel from within the child care center, group child care home, or family child care home either immediately at the onset of an emergency situation or, if it is reasonable under the particular circumstances for staff to believe that diverting their attention to calling for help would increase the risk to the safety of the child or to the safety of others, as soon as possible once the circumstances no longer support that belief.

(e) A requirement that the child care center, group child care home, or family child care home must ensure that substitute staff are informed of and understand the procedures regarding use of emergency seclusion and emergency physical restraint. This requirement may be satisfied using online training and an online acknowledgment of understanding developed or approved by the department and completed by the substitute staff member.

(f) A requirement that emergency seclusion shall not be used longer than necessary, based on research and evidence, to allow a child to regain control of his or her behavior to the point that the emergency situation necessitating the use of emergency seclusion has ended and generally no longer than 10 minutes for a child who is younger than a school-age child, 15 minutes for an elementary school child, or 20 minutes for a middle school or high school child. If an emergency seclusion lasts longer than 10 minutes for a child who is younger than a school-age child, 15 minutes for an elementary school child, or 20 minutes for a middle school or high school child, the state policy shall require both of the following:

(i) Additional support, which may include a change of staff, or introducing a nurse, specialist, or additional key identified personnel.

(ii) Documentation to explain the use of emergency seclusion beyond the time limit allowed in the state policy.

(g) A requirement that emergency physical restraint shall not be used longer than necessary, based on research and evidence, to allow a child to regain control of his or her behavior to the point that the emergency situation necessitating the use of emergency physical restraint has ended and generally no longer than 10 minutes. If an emergency physical restraint lasts longer than 10 minutes, the state policy shall require both of the following:

(i) Additional support, that may include a change of staff, or introducing a nurse, specialist, or additional key identified personnel.

(ii) Documentation to explain the use of emergency physical restraint beyond the time limit allowed in the state policy.

(h) While using emergency seclusion or emergency physical restraint, staff must do all of the following:

(i) Involve key identified personnel to protect the care, welfare, dignity, and safety of the child.

(ii) Continually observe the child in emergency seclusion or emergency physical restraint for indications of physical distress and seek medical assistance if there is a concern.

(iii) Document observations.

(iv) Ensure to the extent practicable, in light of the ongoing emergency situation, that the emergency physical restraint does not interfere with the child's ability to communicate using the child's primary mode of communication.

(v) Ensure that at all times during the use of emergency seclusion or emergency physical restraint there is staff present who can communicate with the child using the child's primary mode of communication.

Sec. 2j. The state policy developed under section 2g shall include at least all of the following provisions concerning documentation and reporting of seclusion and restraint:

(a) Each use of seclusion or restraint and the reason for each use shall be documented in writing and reported immediately in writing or orally to the child care center, group child care home, or family child care home and the child's parent or guardian. Each use of seclusion or restraint shall be documented in a written report, including multiple uses within a given day. This written report must be provided to the child's parent or guardian within 1 weekday of the use of seclusion or restraint.

(b) After any use of seclusion or restraint, staff must make reasonable efforts to debrief and consult with the parent or guardian, or with the parent or guardian and the child, as appropriate, regarding determining future actions. The debriefing and consultation shall be done in accordance with department guidelines and documented on forms developed by the department.

(c) If a child exhibits a pattern of behavior that poses a substantial risk of creating an emergency situation in the future that could result in the use of emergency seclusion or emergency physical restraint, staff are encouraged to do all of the following:

(i) Conduct a functional behavioral assessment.

(ii) Develop or revise a positive behavioral intervention and support plan to facilitate eliminating the use of seclusion and restraint.

(iii) Develop an assessment and planning process conducted by a team knowledgeable about the child, including at least the parent or guardian; the child, if appropriate; the individuals responsible for implementation of the positive behavioral intervention and support plan; and individuals knowledgeable in positive behavioral intervention and support.

Sec. 2k. The state policy developed under section 2g shall include at least all of the following provisions concerning development and implementation of an emergency intervention plan:

(a) If a child exhibits a pattern of behavior that poses a substantial risk of creating an emergency situation in the future that could result in the use of emergency seclusion or emergency physical restraint, staff should develop a written emergency intervention plan to protect the health, safety, and dignity of the child. The emergency intervention plan must be developed in partnership with the parent or guardian by a team that includes a staff member, an individual knowledgeable about the legally permissible use of emergency seclusion and emergency physical restraint, and an individual knowledgeable about the use of positive behavioral intervention and support to eliminate the use of seclusion and restraint. The emergency intervention plan must be developed and implemented by taking all of the following documented steps:

(i) Describe in detail the procedures to be followed in an emergency situation.

(ii) Describe in detail the legal limit on the use of emergency seclusion and emergency physical restraint, including examples of legally permissible and prohibited use.

(iii) Make inquiry to the child's medical personnel, with parental consent, regarding any known medical or health contraindications for the use of emergency seclusion or emergency physical restraint.

(iv) Conduct a peer review by knowledgeable staff.

(v) Provide the parent or guardian with all of the following, in writing and orally:

(A) A detailed explanation of the positive behavioral intervention and support strategies that will be utilized to reduce the risk of the child's behavior creating an emergency situation.

(B) An explanation of what constitutes an emergency situation, including examples of situations that are considered emergency situations and examples of situations that are not considered emergency situations.

(C) A detailed explanation of the procedures to be followed in an emergency situation under the emergency intervention plan, including the potential use of emergency seclusion and emergency physical restraint.

(D) A detailed explanation of the legal limit on the use of emergency seclusion and emergency physical restraint, including examples of legally permissible and prohibited use.

(E) A description of possible discomforts or risks associated with the use of emergency seclusion and emergency physical restraint.

(F) Answers to the parent's questions.

(b) A child who is the subject of an emergency intervention plan should be told or shown the circumstances under which emergency seclusion or emergency physical restraint could be used.

(c) Emergency seclusion or emergency physical restraint must only be used in response to an ongoing emergency situation and not as a planned response for the convenience of staff, as discipline or punishment, or as a substitute for an appropriate educational program. The development of an emergency intervention plan shall be solely for the purpose of protecting the health, safety, and dignity of the child and does not expand the legally permissible use of emergency seclusion or emergency physical restraint.

Sec. 2l. The state policy developed under section 2g shall include at least all of the following provisions concerning data collection:

(a) A child care center, group child care home, or family child care home, in accordance with department guidelines, shall collect and report data on and related to the use of restraint and seclusion in the child care center, group child care home, or family child care home. In collecting and reporting this data, a child care center, group child care home, or family child care home shall use existing data collection and reporting systems whenever possible. Incidents of use of restraint or seclusion shall, at a minimum, be reported by race, age, grade, gender, disability status, medical condition, identity of the staff member initiating the use of the seclusion or restraint, and identity of the child care center, group child care home, or family child care home where the use of seclusion or restraint occurred.

(b) All of the following must occur with respect to the data collected under subdivision (a):

(i) The data must be analyzed by the child care center, group child care home, or family child care home in which the child is provided care to determine the efficacy of the system of behavioral support.

(ii) The data must be analyzed by the child care center, group child care home, or family child care home for the purposes of continuous improvement of training and technical assistance toward the elimination of seclusion and restraint.

(iii) The data must be analyzed by the child care center, group child care home, or family child care home on a schedule determined by the department.

(iv) The data must be reported electronically by the child care center, group child care home, or family child care home to the department in accordance with department guidelines.

(c) The department shall make available redacted, aggregate data on the reported use of seclusion and restraint, compiled by the child care center, group child care home, or family child care home on a quarterly basis.

Sec. 2m. The state policy developed under section 2g shall include at least all of the following training provisions concerning seclusion and restraint, that may include online training developed or approved by the department:

(a) In accordance with department guidelines, a child care center, group child care home, or family child care home shall implement a comprehensive training framework that includes awareness training for all staff who have regular contact with children and comprehensive training for key identified personnel as described in subdivision (b).

(b) A child care center, group child care home, or family child care home shall identify sufficient key personnel to ensure that trained personnel are generally available for an emergency situation. Before using emergency seclusion or emergency physical restraint with children, key identified personnel who may be required to respond to an emergency situation must be trained in all of subparagraphs (i) to (xvi) as follows and should be trained in all of subparagraphs (xvii) to (xx) as follows:

(i) Proactive practices and strategies that ensure the dignity of children.

(ii) De-escalation techniques.

(iii) Techniques to identify child behavior that may trigger an emergency situation.

(iv) Related safety considerations, including information regarding the increased risk of injury to a child or staff when seclusion or restraint is used.

(v) Instruction in the use of emergency seclusion and emergency physical restraint.

(vi) Identification of events and environmental factors that may trigger an emergency situation.

(vii) Instruction on the state policy on the use of seclusion and restraint.

(viii) Description and identification of dangerous behaviors.

(ix) Methods for evaluating the risk of harm to determine whether the use of emergency seclusion or emergency physical restraint is warranted.

(x) Types of seclusion.

(xi) Types of restraint.

(xii) The risk of using seclusion or restraint in consideration of a child's known and unknown physical or mental health condition or psychological limitation.

(xiii) The effects of seclusion and restraint on all children.

(xiv) How to monitor for and identify the physical signs of distress and the implications for children generally and for children with particular physical or mental health conditions or psychological limitations.

(xv) How to obtain appropriate medical assistance.

(xvi) Cardiopulmonary resuscitation and first aid.

(xvii) Conflict resolution.

(xviii) Mediation.

(xix) Social skills training.

(xx) Positive behavioral intervention and support strategies.

Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.