Assembly Bill No. 500–Committee on
Health and Human Services

 

(On Behalf of the Health Division)

 

March 24, 2003

____________

 

Referred to Committee on Health and Human Services

 

SUMMARY—Revises provisions relating to use of aversive intervention or forms of restraint on persons with disabilities. (BDR 40‑503)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to persons with disabilities; making various changes to the provisions concerning the use of aversive intervention or forms of restraint on patients with disabilities in certain medical facilities; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1.  NRS 449.730 is hereby amended to read as follows:

1-2  449.730  1.  [Every] Each medical facility, facility for the

1-3  dependent and home for individual residential care shall inform each

1-4  patient or his legal representative, upon his admission to the facility

1-5  or home, of the patient’s rights as listed in NRS 449.700, 449.710

1-6  and 449.720.

1-7  2.  In addition to the requirements of subsection 1, if a person

1-8  with a disability is a patient at a facility, as that term is defined in

1-9  [NRS 449.771,] section 3 of this act, the facility shall inform the

1-10  patient of his rights pursuant to NRS [449.765 to 449.786,

1-11  inclusive.] 433.545 to 433.551, inclusive, and section 3 of this act.

1-12      Sec. 2.  NRS 449.850 is hereby amended to read as follows:

1-13      449.850  1.  The attorney in fact may not consent to:

2-1  (a) Commitment or placement of the principal in a facility for

2-2  treatment of mental illness;

2-3  (b) Convulsive treatment;

2-4  (c) Psychosurgery;

2-5  (d) Sterilization;

2-6  (e) Abortion;

2-7  (f) Aversive intervention, as that term is defined in NRS

2-8  [449.766;] 433.5453; or

2-9  (g) Any other treatment to which the principal, in the power of

2-10  attorney, states that the attorney in fact may not consent.

2-11      2.  The attorney in fact must make decisions concerning the use

2-12  or nonuse of life sustaining treatment which conform to the known

2-13  desires of the principal. The principal may make these desires

2-14  known in the power of attorney.

2-15      Sec. 3.  Chapter 433 of NRS is hereby amended by adding

2-16  thereto a new section to read as follows:

2-17      “Facility” means a division facility or a facility licensed

2-18  pursuant to chapter 449 of NRS that is a psychiatric hospital or

2-19  unit of a hospital that is specifically designated to provide care and

2-20  services to persons with psychiatric or developmental disabilities.

2-21      Sec. 4.  NRS 433.534 is hereby amended to read as follows:

2-22      433.534  1.  The rights of a client or patient at a facility

2-23  enumerated in this chapter must not be denied except to protect the

2-24  client’s or patient’s health and safety or to protect the health and

2-25  safety of others, or both. Any denial of those rights in any facility

2-26  must be entered in the client’s or patient’s record of treatment, and

2-27  notice of the denial must be forwarded to the administrative officer

2-28  of the facility. Failure to report denial of rights by an employee may

2-29  be grounds for dismissal.

2-30      2.  If the administrative officer or administrator of a facility

2-31  receives notice of a denial of rights as provided in subsection 1, he

2-32  shall cause a full report to be prepared which must set forth in detail

2-33  the factual circumstances surrounding the denial. Such a report is

2-34  confidential and must not be disclosed. A copy of the report must be

2-35  sent to the Commission.

2-36      3.  The Commission:

2-37      (a) Shall receive reports of and may investigate apparent

2-38  violations of the rights guaranteed by this chapter;

2-39      (b) May act to resolve disputes relating to apparent violations;

2-40      (c) May act on behalf of clients to obtain remedies for any

2-41  apparent violations; and

2-42      (d) Shall otherwise endeavor to safeguard the rights guaranteed

2-43  by this chapter.

3-1  4.  Pursuant to NRS 241.030, the Commission may close any

3-2  portion of a meeting in which it considers the character, alleged

3-3  misconduct or professional competence of a person in relation to:

3-4  (a) The denial of the rights of a client[;] or patient; or

3-5  (b) The care and treatment of a client[.] or patient.

3-6  The provisions of this subsection do not require a meeting of the

3-7  Commission to be closed to the public.

3-8  5.  As used in this section, “facility” includes a facility

3-9  licensed pursuant to chapter 449 of NRS that is a psychiatric

3-10  hospital or unit of a hospital that is specifically designated to

3-11  provide care and services to persons with psychiatric or

3-12  developmental disabilities.

3-13      Sec. 5.  NRS 433.545 is hereby amended to read as follows:

3-14      433.545  As used in NRS 433.545 to 433.551, inclusive, unless

3-15  the context otherwise requires, the words and terms defined in NRS

3-16  433.5453 to 433.548, inclusive, and section 3 of this act have the

3-17  meanings ascribed to them in those sections.

3-18      Sec. 6.  NRS 433.5453 is hereby amended to read as follows:

3-19      433.5453  “Aversive intervention” means any of the following

3-20  actions if the action is used to punish a person with a disability or to

3-21  eliminate, reduce or discourage maladaptive behavior of a person

3-22  with a disability:

3-23      1.  The use of noxious odors and tastes;

3-24      2.  The use of water and other mists or sprays;

3-25      3.  The use of blasts of air;

3-26      4.  The use of corporal punishment;

3-27      5.  The use of verbal and mental abuse;

3-28      6.  The use of electric shock;

3-29      7.  Requiring a person to perform exercise under forced

3-30  conditions if the:

3-31      (a) Person is required to perform the exercise because he

3-32  exhibited a behavior that is related to his disability;

3-33      (b) Exercise is harmful to the health of the person because of his

3-34  disability; or

3-35      (c) Nature of the person’s disability prevents him from engaging

3-36  in the exercise;

3-37      8.  Any intervention, technique or procedure that deprives a

3-38  person of the use of one or more of his senses, regardless of the

3-39  length of the deprivation, including, without limitation, the use of

3-40  sensory screens; or

3-41      9.  The deprivation of necessities needed to sustain the health of

3-42  a person, regardless of the length of the deprivation, including,

3-43  without limitation, the denial or unreasonable delay in the provision

3-44  of:

3-45      (a) Food or liquid at a time when it is customarily served; or

4-1  (b) Medication.

4-2  The term does not include the withholding or withdrawal of life-

4-3  sustaining treatment in accordance with NRS 449.626.

4-4  Sec. 7.  NRS 433.548 is hereby amended to read as follows:

4-5  433.548  “Verbal and mental abuse” means [verbal] :

4-6  (a) Verbal intimidation or coercion of a person without a

4-7  redeeming purpose[.] ; and

4-8  (b) Actions or utterances that are intended to cause and

4-9  actually cause severe emotional distress to a person.

4-10      Sec. 8.  NRS 433.5483 is hereby amended to read as follows:

4-11      433.5483  A person employed by a facility or any other person

4-12  shall not use any aversive intervention on a person with a disability

4-13  who is a [client.] patient at the facility.

4-14      Sec. 9.  NRS 433.5486 is hereby amended to read as follows:

4-15      433.5486  Notwithstanding the provisions of NRS 433.549 to

4-16  433.5503, inclusive, to the contrary, a facility may use or authorize

4-17  the use of physical restraint, mechanical restraint or chemical

4-18  restraint on a person with a disability who is a [client] patient at the

4-19  facility if the facility is:

4-20      1.  Accredited by a nationally recognized accreditation

4-21  association or agency; or

4-22      2.  Certified for participation in the Medicaid or Medicare

4-23  Program,

4-24  only to the extent that the accreditation or certification allows the

4-25  use of such restraint.

4-26      Sec. 10.  NRS 433.549 is hereby amended to read as follows:

4-27      433.549  A person employed by a facility or any other person

4-28  shall not:

4-29      1.  Except as otherwise provided in NRS 433.5493, use physical

4-30  restraint on a person with a disability who is a [client.] patient at the

4-31  facility.

4-32      2.  Except as otherwise provided in NRS 433.5496 and

4-33  433.5499, use mechanical restraint on a person with a disability who

4-34  is a [client.] patient at the facility.

4-35      3.  Except as otherwise provided in NRS 433.5503, use

4-36  chemical restraint on a person with a disability who is a [client.]

4-37  patient at the facility.

4-38      Sec. 11.  NRS 433.5493 is hereby amended to read as follows:

4-39      433.5493  1.  Except as otherwise provided in subsection 2,

4-40  physical restraint may be used on a person with a disability who is a

4-41  [client] patient at a facility only if:

4-42      (a) An emergency exists that necessitates the use of physical

4-43  restraint;

4-44      (b) The physical restraint is used only for the period that is

4-45  necessary to contain the behavior of the [client] patient so that the

5-1  [client] patient is no longer an immediate threat of causing physical

5-2  injury to himself or others or causing severe property damage; and

5-3  (c) The use of force in the application of physical restraint does

5-4  not exceed the force that is reasonable and necessary under the

5-5  circumstances precipitating the use of physical restraint.

5-6  2.  Physical restraint may be used on a person with a disability

5-7  who is a [client] patient at a facility and the provisions of

5-8  subsection 1 do not apply if the physical restraint is used to:

5-9  (a) Assist the [client] patient in completing a task or response if

5-10  the [client] patient does not resist the application of physical

5-11  restraint or if his resistance is minimal in intensity and duration;

5-12      (b) Escort or carry a [client] patient to safety if the [client]

5-13  patient is in danger in his present location; or

5-14      (c) Conduct medical examinations or treatments on the [client]

5-15  patient that are necessary.

5-16      3.  If physical restraint is used on a person with a disability who

5-17  is a [client] patient at a facility in an emergency, the use of the

5-18  procedure must be reported as a denial of rights pursuant to NRS

5-19  433.534, regardless of whether the use of the procedure is

5-20  authorized by statute. The report must be made not later than 1

5-21  working day after the procedure is used.

5-22      Sec. 12.  NRS 433.5496 is hereby amended to read as follows:

5-23      433.5496  1.  Except as otherwise provided in subsections 2

5-24  and 4, mechanical restraint may be used on a person with a

5-25  disability who is a [client] patient at a facility only if:

5-26      (a) An emergency exists that necessitates the use of mechanical

5-27  restraint;

5-28      (b) A medical order authorizing the use of mechanical restraint

5-29  is obtained from the [client’s] patient’s treating physician before the

5-30  application of the mechanical restraint or not later than 15 minutes

5-31  after the application of the mechanical restraint;

5-32      (c) The physician who signed the order required pursuant to

5-33  paragraph (b) or the attending physician examines the [client]

5-34  patient not later than 1 working day immediately after the

5-35  application of the mechanical restraint;

5-36      (d) The mechanical restraint is applied by a member of the staff

5-37  of the facility who is trained and qualified to apply mechanical

5-38  restraint;

5-39      (e) The [client] patient is given the opportunity to move and

5-40  exercise the parts of his body that are restrained at least 10 minutes

5-41  per every 60 minutes of restraint;

5-42      (f) A member of the staff of the facility lessens or discontinues

5-43  the restraint every 15 minutes to determine whether the [client]

5-44  patient will stop or control his inappropriate behavior without the

5-45  use of the restraint;

6-1  (g) The record of the [client] patient contains a notation that

6-2  includes the time of day that the restraint was lessened or

6-3  discontinued pursuant to paragraph (f), the response of the [client]

6-4  patient and the response of the member of the staff of the facility

6-5  who applied the mechanical restraint;

6-6  (h) A member of the staff of the facility continuously monitors

6-7  the [client] patient during the time that mechanical restraint is used

6-8  on the [client;] patient; and

6-9  (i) The mechanical restraint is used only for the period that is

6-10  necessary to contain the behavior of the [client] patient so that the

6-11  [client] patient is no longer an immediate threat of causing physical

6-12  injury to himself or others or causing severe property damage.

6-13      2.  Mechanical restraint may be used on a person with a

6-14  disability who is a [client] patient at a facility and the provisions of

6-15  subsection 1 do not apply if the mechanical restraint is used to:

6-16      (a) Treat the medical needs of a [client;] patient;

6-17      (b) Protect a [client] patient who is known to be at risk of injury

6-18  to himself because he lacks coordination or suffers from frequent

6-19  loss of consciousness;

6-20      (c) Provide proper body alignment to a [client;] patient; or

6-21      (d) Position a [client] patient who has physical disabilities in a

6-22  manner prescribed in the [client’s] patient’s plan of services.

6-23      3.  If mechanical restraint is used on a person with a disability

6-24  who is a [client] patient at a facility in an emergency, the use of the

6-25  procedure must be reported as a denial of rights pursuant to NRS

6-26  433.534, regardless of whether the use of the procedure is

6-27  authorized by statute. The report must be made not later than 1

6-28  working day after the procedure is used.

6-29      4.  The provisions of this section do not apply to a forensic

6-30  facility, as that term is defined in subsection 5 of NRS 433.5499.

6-31      Sec. 13.  NRS 433.5503 is hereby amended to read as follows:

6-32      433.5503  1.  Chemical restraint may only be used on a person

6-33  with a disability who is a [client if:

6-34      (a) The client] patient at a facility if:

6-35      (a) The patient has been diagnosed as mentally ill, as defined in

6-36  NRS 433A.115, and is receiving mental health services from a

6-37  facility;

6-38      (b) The chemical restraint is administered to the [client] patient

6-39  while he is under the care of the facility;

6-40      (c) An emergency exists that necessitates the use of chemical

6-41  restraint;

6-42      (d) A medical order authorizing the use of chemical restraint is

6-43  obtained from the [client’s] patient’s attending physician or

6-44  psychiatrist;

7-1  (e) The physician or psychiatrist who signed the order required

7-2  pursuant to paragraph (d) examines the [client] patient not later than

7-3  1 working day immediately after the administration of the chemical

7-4  restraint; and

7-5  (f) The chemical restraint is administered by a person licensed to

7-6  administer medication.

7-7  2.  If chemical restraint is used on a person with a disability

7-8  who is a [client,] patient at a facility, the use of the procedure must

7-9  be reported as a denial of rights pursuant to NRS 433.534,

7-10  regardless of whether the use of the procedure is authorized by

7-11  statute. The report must be made not later than 1 working day after

7-12  the procedure is used.

7-13      Sec. 14.  NRS 433.5506 is hereby amended to read as follows:

7-14      433.5506  1.  Each facility shall develop a program of

7-15  education for the members of the staff of the facility to provide

7-16  instruction in positive behavioral interventions and positive

7-17  behavioral supports that:

7-18      (a) Includes positive methods to modify the environment of

7-19  [clients] patients to promote adaptive behavior and reduce the

7-20  occurrence of inappropriate behavior;

7-21      (b) Includes methods to teach skills to [clients] patients so that

7-22  [clients] patients can replace inappropriate behavior with adaptive

7-23  behavior;

7-24      (c) Includes methods to enhance a [client’s] patient’s

7-25  independence and quality of life;

7-26      (d) Includes the use of the least intrusive methods to respond to

7-27  and reinforce the behavior of [clients;] patients; and

7-28      (e) Offers a process for designing interventions based upon the

7-29  [client] patient that are focused on promoting appropriate changes in

7-30  behavior as well as enhancing the overall quality of life for the

7-31  [client.] patient.

7-32      2.  Each facility shall provide appropriate training for the

7-33  members of the staff of the facility who are authorized to carry out

7-34  and monitor physical restraint, mechanical restraint and chemical

7-35  restraint to ensure that those members of the staff are competent and

7-36  qualified to carry out the procedures in accordance with NRS

7-37  433.545 to 433.551, inclusive[.] , and section 3 of this act.

7-38      Sec. 15.  NRS 433.551 is hereby amended to read as follows:

7-39      433.551  1.  A facility where a violation of the provisions of

7-40  NRS 433.545 to 433.551, inclusive, and section 3 of this act occurs

7-41  shall:

7-42      (a) Not later than 24 hours after a violation occurs, or as soon

7-43  thereafter as the violation is discovered, report the violation to the

7-44  Division; and

8-1  (b) Develop, in cooperation with the Division, a corrective plan

8-2  to ensure that within 30 calendar days after the violation occurred,

8-3  appropriate action is taken by the facility to prevent future

8-4  violations.

8-5  2.  The Division shall forward the plan to the Director of the

8-6  Department. The Director or his designee shall review the plan to

8-7  ensure that it complies with applicable federal law and the statutes

8-8  and regulations of this [State.] state. The Director or his designee

8-9  may require appropriate revision of the plan to ensure compliance.

8-10      3.  If the facility where the violation occurred does not meet the

8-11  requirements of the plan to the satisfaction of the Director or his

8-12  designee, the Department may withhold state funding for the facility

8-13  until the facility meets the requirements of the plan.

8-14      Sec. 16.  NRS 433.554 is hereby amended to read as follows:

8-15      433.554  1.  An employee of a public or private mental health

8-16  facility or any other person, except a client, who:

8-17      (a) Has reason to believe that a client of the Division or of a

8-18  private facility offering mental health services has been or is being

8-19  abused or neglected and fails to report it;

8-20      (b) Brings intoxicating beverages or a controlled substance into

8-21  any division facility occupied by clients unless specifically

8-22  authorized to do so by the administrative officer or a staff physician

8-23  of the facility;

8-24      (c) Is under the influence of liquor or a controlled substance

8-25  while employed in contact with clients, unless in accordance with a

8-26  lawfully issued prescription;

8-27      (d) Enters into any transaction with a client involving the

8-28  transfer of money or property for personal use or gain at the expense

8-29  of the client; or

8-30      (e) Contrives the escape, elopement or absence of a

8-31  client,

8-32  is guilty of a misdemeanor, in addition to any other penalties

8-33  provided by law.

8-34      2.  In addition to any other penalties provided by law, an

8-35  employee of a public or private mental health facility or any other

8-36  person, except a client[,] or a patient at a facility who willfully

8-37  abuses or neglects a client[:] or a patient at a facility:

8-38      (a) For a first violation that does not result in substantial bodily

8-39  harm to the client[,] or patient is guilty of a gross misdemeanor.

8-40      (b) For a first violation that results in substantial bodily harm to

8-41  the client[,] or patient is guilty of a category B felony.

8-42      (c) For a second or subsequent violation, is guilty of a category

8-43  B felony.

8-44  A person convicted of a category B felony pursuant to this section

8-45  shall be punished by imprisonment in the state prison for a

9-1  minimum term of not less than 1 year and a maximum term of not

9-2  more than 6 years, or by a fine of not more than $5,000, or by both

9-3  fine and imprisonment.

9-4  3.  A person who is convicted pursuant to this section is

9-5  [ineligible] :

9-6  (a) Ineligible for 5 years for appointment to or employment in a

9-7  position in the state service and, if he is an officer or employee of

9-8  the State, he forfeits his office or position[.] ; and

9-9  (b) Ineligible for 5 years for employment with a facility.

9-10      4.  A conviction pursuant to this section is, when applicable,

9-11  grounds for disciplinary action against the person so convicted and

9-12  the facility where the violation occurred. The Division may

9-13  recommend to the appropriate agency or board the suspension or

9-14  revocation of the professional license, registration, certificate or

9-15  permit of a person convicted pursuant to this section.

9-16      5.  For the purposes of this section:

9-17      (a) “Abuse” means any willful and unjustified infliction of pain,

9-18  injury or mental anguish upon a client[,] or a patient at a facility,

9-19  including, but not limited to:

9-20          (1) The rape, sexual assault or sexual exploitation of the

9-21  client[;] or patient;

9-22          (2) The use of any type of aversive intervention;

9-23          (3) Except as otherwise provided in NRS 433.5486, a

9-24  violation of NRS 433.549; and

9-25          (4) The use of physical, chemical or mechanical restraints or

9-26  the use of seclusion in violation of federal law.

9-27  Any act which meets the standard of practice for care and treatment

9-28  does not constitute abuse.

9-29      (b) “Client” includes any person who seeks, on his own or

9-30  others’ initiative, and can benefit from care, treatment and training

9-31  in a public or private institution or facility offering mental health

9-32  services. The term includes a client of the Division of Child and

9-33  Family Services of the Department.

9-34      (c) “Facility” has the meaning ascribed to it in section 4 of this

9-35  act.

9-36      (d) “Neglect” means any omission to act which causes injury to

9-37  a client or a patient at a facility or which places the client or patient

9-38  at risk of injury, including, but not limited to, the failure to follow:

9-39          (1) An appropriate plan of treatment to which the client or

9-40  patient has consented; and

9-41          (2) The policies of the facility for the care and treatment of

9-42  clients[.] and patients.

9-43  Any omission to act which meets the standard of practice for care

9-44  and treatment does not constitute neglect.

10-1      [(d)] (e)  “Standard of practice” means the skill and care

10-2  ordinarily exercised by prudent professional personnel engaged in

10-3  health care.

10-4      Sec. 17.  NRS 433B.350 is hereby amended to read as follows:

10-5      433B.350  1.  Nothing in this chapter purports to deprive any

10-6  person of any legal rights without due process of law.

10-7      2.  Unless the context clearly indicates otherwise, the provisions

10-8  of NRS 433.456 to 433.543, inclusive, 433.545 to 433.551,

10-9  inclusive, and section 3 of this act, and chapter 433A of NRS apply

10-10  to all persons subject to the provisions of this chapter.

10-11     Sec. 18.  This act becomes effective on July 1, 2003.

 

10-12  H