S.B. 91

1

REGULATION OF RESTRAINT, SECLUSION,
2 AND EMERGENCY MEDICATION
3 2006 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Thomas V. Hatch
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill regulates the use of chemical and physical restraints in health care facilities
11 licensed under the Health Care Facility Licensing and Inspection Act and in human
12 service programs licensed by the Department of Human Services.
13 Highlighted Provisions:
14 This bill:
15 . gives the Departments of Health and Human Services administrative rulemaking
16 authority to implement and enforce the Regulation of Chemical and Physical
17 Restraints Act;
18 . makes compliance with the Regulation of Chemical and Physical Restraints Act a
19 condition of licensing for human service programs and health care facilities; and
20 . creates the Regulation of Chemical and Physical Restraints Act which:
21 . defines terms;
22 . establishes standards for the use of orders for chemical or physical restraint;
23 . provides for enforcement of the act through the licensing entities for
24 health care facilities and human service programs; and
25 . prohibits a private right of action for a violation of the act.
26 Monies Appropriated in this Bill:
27 None

28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 AMENDS:
32 26-21-5, as last amended by Chapter 209, Laws of Utah 1997
33 26-21-13, as last amended by Chapter 114, Laws of Utah 1990
34 62A-2-106, as last amended by Chapters 188 and 212, Laws of Utah 2005
35 62A-2-108, as last amended by Chapter 188, Laws of Utah 2005
36 ENACTS:
37 26-48-101, Utah Code Annotated 1953
38 26-48-102, Utah Code Annotated 1953
39 26-48-103, Utah Code Annotated 1953
40 26-48-104, Utah Code Annotated 1953
41
42 Be it enacted by the Legislature of the state of Utah:
43 Section 1. Section 26-21-5 is amended to read:
44 26-21-5. Duties of committee.
45 The committee shall:
46 (1) make rules in accordance with Title 63, Chapter 46a, Utah Administrative
47 Rulemaking Act:
48 (a) for the licensing of health care facilities; [and]
49 (b) requiring the submission of architectural plans and specifications for any proposed
50 new health care facility or renovation to the department for review; and
51 (c) for regulation and enforcement of the provisions of Chapter 48, Regulation of
52 Chemical and Physical Restraints Act, for health care facilities as defined in Section
53 26-48-102 ;
54 (2) approve the information for applications for licensure pursuant to Section 26-21-9 ;
55 (3) advise the department as requested concerning the interpretation and enforcement
56 of the rules established under this chapter; and
57 (4) advise, consult, cooperate with, and provide technical assistance to other agencies
58 of the state and federal government, and other states and affected groups or persons in carrying

59 out the purposes of this chapter.
60 Section 2. Section 26-21-13 is amended to read:
61 26-21-13. License issued to facility in compliance or substantial compliance with
62 chapter and rules.
63 (1) The department shall issue a standard license for a health care facility which is
64 found to be in compliance with the provisions of:
65 (a) this chapter and with all applicable rules adopted by the committee[.]; and
66 (b) Chapter 48, Regulation of Chemical and Physical Restraints Act, and all applicable
67 rules adopted by the committee.
68 (2) The department may issue a provisional or conditional license for a health care
69 facility which is in substantial compliance if the interests of the public will not be jeopardized.
70 Section 3. Section 26-48-101 is enacted to read:
71 CHAPTER 48. REGULATION OF CHEMICAL AND PHYSICAL RESTRAINTS ACT
72 26-48-101. Title.
73 This chapter is known as the "Regulation of Chemical and Physical Restraints Act."
74 Section 4. Section 26-48-102 is enacted to read:
75 26-48-102. Definitions.
76 As used in this chapter:
77 (1) "Chemical restraint":
78 (a) means any drug that is not a standard treatment for an individual's medical or
79 psychiatric condition and that is used for:
80 (i) discipline;
81 (ii) coercion;
82 (iii) retaliation; or
83 (iv) convenience to control behavior; and
84 (b) does not include tranquilizers or other medication prescribed by a practitioner
85 licensed to prescribe drugs under Title 58, Occupations and Professions, if the patient has
86 consented to the medication.
87 (2) "Emergency" means a situation in which there is unanticipated resident or patient
88 behavior:
89 (a) that places the resident, patient, or others at imminent threat of serious violence or

90 injury if no intervention occurs;
91 (b) for which preventive, verbal, nonseclusion, or other restraint methods of
92 responding to the behavior have proven ineffective; and
93 (c) that calls for immediate restraint or seclusion to prevent the imminent threat of
94 serious violence or injury.
95 (3) "Health care facility":
96 (a) includes the facilities defined in Subsection 26-21-2 (13);
97 (b) an intermediate care facility for the mentally retarded licensed under Section
98 26-21-13.5 ; and
99 (c) the state hospital.
100 (4) "Human services program" is defined in Section 62A-2-101 .
101 (5) "Physical restraint":
102 (a) means any manual method, including physical force, physical or mechanical device,
103 material or equipment attached or adjacent to an individual's body that the individual cannot
104 remove easily, which restricts freedom of movement or normal access to the individual's body;
105 (b) includes seclusion in a room in which egress is prevented; and
106 (c) does not include:
107 (i) a protective device;
108 (ii) a quiet room used at the individual's request or with the individual's knowing
109 concurrence when considered in the best interest of the individual; or
110 (iii) escorting a person from one place to another without undue force.
111 (6) "Protective device" means a device used to prevent involuntary self injury, or to
112 permit wounds to heal.
113 (7) "Restraint" includes both physical restraint and chemical restraint.
114 Section 5. Section 26-48-103 is enacted to read:
115 26-48-103. Regulation of chemical and physical restraints.
116 (1) (a) The entities that license and regulate health care facilities and human services
117 programs shall adopt administrative rules:
118 (i) in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act; and
119 (ii) in accordance with this section.
120 (b) The rules adopted in accordance with this section shall be consistent with the

121 standards and requirements for participation in the federal Medicare program, but shall
122 supercede the standards required by the federal Medicare program when:
123 (i) the requirements of this section are more restrictive than the federal Medicare
124 program; and
125 (ii) permitted by the federal Medicare program.
126 (2) The rules adopted under Subsection (1) shall:
127 (a) identify devices and practices that constitute:
128 (i) a physical restraint;
129 (ii) a chemical restraint; and
130 (iii) the appropriate use of protective devices; and
131 (b) establish when physical restraints, chemical restraints, or protective devices may be
132 used.
133 (3) The rules adopted in accordance with this section shall at a minimum, provide that:
134 (a) orders for the use of physical or chemical restraint must be implemented in the least
135 restrictive manner possible;
136 (b) orders for restraint may only be selected when:
137 (i) less restrictive measures have been found to be ineffective; and
138 (ii) the behavior of the individual creates an emergency as defined in Section
139 26-48-102 ;
140 (c) orders for restraint may never be written as a standing order or on an as needed
141 basis;
142 (d) the treating physician must be consulted as soon as possible if the restraint is not
143 ordered by the individual's treating physician;
144 (e) a physician or independent practitioner must see and evaluate the need for the order
145 for restraint within one hour after the initiation of the order for restraint; and
146 (f) each order for restraint:
147 (i) is limited to:
148 (A) two hours for adults, and children ages 9 to 17; or
149 (B) one hour for children under nine years of age;
150 (ii) may only be renewed for up to the limits provided for in Subsection (3)(f)(i), for a
151 total of six hours, including the original order;

152 (iii) after the original order expires, may only be renewed if a physician or licensed
153 independent practitioner sees and assesses the individual before issuing a new order;
154 (iv) may not include both seclusion in a room in which egress is prohibited and any
155 other form of restraint unless:
156 (A) the individual is continually monitored face to face by an assigned staff member;
157 (B) the individual is continually monitored by staff using both video and audio
158 equipment while the staff is in close proximity to the individual; and
159 (C) the individual's vital signs are recorded every 15 minutes;
160 (v) must include water and bathroom privileges at least every two hours; and
161 (vi) must include a consultation with a physician or independent practitioner who is not
162 a part of the individual's treatment team if restraint is ordered and administered for the
163 individual more than twice in any 30-day period.
164 Section 6. Section 26-48-104 is enacted to read:
165 26-48-104. Enforcement.
166 (1) (a) The provisions of this chapter as applied to health care facilities licensed under
167 Chapter 21, Health Care Facility Licensing and Inspection Act, and human services programs
168 licensed under Title 62A, Chapter 2, Licensure of Programs and Facilities, shall be enforced by
169 the applicable licensing authority for the health care facility or human services program.
170 (b) A violation of this act is a violation of the standards for licensing of the facility or
171 program.
172 (2) This act does not create a private right of action for enforcement of the act.
173 Section 7. Section 62A-2-106 is amended to read:
174 62A-2-106. Office responsibilities.
175 (1) Subject to the requirements of federal and state law, the office shall:
176 (a) make rules in accordance with Title 63, Chapter 46a, Utah Administrative
177 Rulemaking Act, to establish:
178 (i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for
179 licensees, that shall be limited to:
180 (A) fire safety;
181 (B) food safety;
182 (C) sanitation;

183 (D) infectious disease control;
184 (E) safety of the:
185 (I) physical facility and grounds; and
186 (II) area and community surrounding the physical facility;
187 (F) transportation safety;
188 (G) emergency preparedness and response;
189 (H) the administration of medical standards and procedures, consistent with the related
190 provisions of this title;
191 (I) staff and client safety and protection;
192 (J) the administration and maintenance of client and service records;
193 (K) staff qualifications and training, including standards for permitting experience to
194 be substituted for education, unless prohibited by law;
195 (L) staff to client ratios; and
196 (M) access to firearms;
197 (ii) basic health and safety standards for therapeutic schools, that shall be limited to:
198 (A) fire safety, except that the standards are limited to those required by law or rule
199 under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act;
200 (B) food safety;
201 (C) sanitation;
202 (D) infectious disease control, except that the standards are limited to:
203 (I) those required by law or rule under Title 26, Utah Health Code or Title 26A, Local
204 Health Authorities; and
205 (II) requiring a separate room for clients who are sick;
206 (E) safety of the physical facility and grounds, except that the standards are limited to
207 those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks
208 Act;
209 (F) transportation safety;
210 (G) emergency preparedness and response;
211 (H) access to appropriate medical care, including:
212 (I) subject to the requirements of law, designation of a person who is authorized to
213 dispense medication; and

214 (II) storing, tracking, and securing medication;
215 (I) staff and client safety and protection that permits the school to provide for the direct
216 supervision of clients at all times;
217 (J) the administration and maintenance of client and service records;
218 (K) staff qualifications and training, including standards for permitting experience to
219 be substituted for education, unless prohibited by law;
220 (L) staff to client ratios; and
221 (M) access to firearms;
222 (iii) procedures and standards for permitting a licensee to:
223 (A) provide in the same facility and under the same conditions as children, residential
224 treatment services to a person 18 years old or older who:
225 (I) begins to reside at the licensee's residential treatment facility before the person's
226 18th birthday;
227 (II) has resided at the licensee's residential treatment facility continuously since the
228 time described in Subsection (1)(a)(iii)(A)(I);
229 (III) has not completed the course of treatment for which the person began residing at
230 the licensee's residential treatment facility; and
231 (IV) voluntarily consents to complete the course of treatment described in Subsection
232 (1)(a)(iii)(A)(III); or
233 (B) (I) provide residential treatment services to a child who is:
234 (Aa) 12 years old or older; and
235 (Bb) under the custody of the Division of Juvenile Justice Services; and
236 (II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I),
237 residential treatment services to a person who is:
238 (Aa) at least 18 years old, but younger than 21 years old; and
239 (Bb) under the custody of the Division of Juvenile Justice Services;
240 (iv) minimum administration and financial requirements for licensees; [and]
241 (v) guidelines for variances from rules established under this Subsection (1); and
242 (vi) regulation and enforcement of the use of physical and chemical restraints in human
243 service programs that:
244 (A) are regulated by this chapter; and

245 (B) are regulated by Title 26, Chapter 48, Regulation of Chemical and Physical
246 Restraints Act;
247 (b) enforce rules approved by the licensing board;
248 (c) issue licenses in accordance with this chapter;
249 (d) if the United States Department of State executes an agreement with the office that
250 designates the office to act as an accrediting entity in accordance with the Intercountry
251 Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to
252 provide intercountry adoption services pursuant to:
253 (i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and
254 (ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L.
255 No. 106-279;
256 (e) make rules to implement the provisions of Subsection (1)(d);
257 (f) conduct surveys and inspections of licensees and facilities in accordance with
258 Section 62A-2-118 ;
259 (g) collect licensure fees;
260 (h) provide necessary administrative support to the licensing board;
261 (i) notify licensees of the name of a person within the department to contact when
262 filing a complaint;
263 (j) investigate complaints regarding any licensee or human services program;
264 (k) have access to all records, correspondence, and financial data required to be
265 maintained by a licensee;
266 (l) have authority to interview any client, family member of a client, employee, or
267 officer of a licensee; and
268 (m) have authority to deny, condition, revoke, suspend, or extend any license issued by
269 the department under this chapter by following the procedures and requirements of Title 63,
270 Chapter 46b, Administrative Procedures Act.
271 (2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a
272 licensee to establish and comply with an emergency response plan that requires clients and staff
273 to:
274 (a) immediately report to law enforcement any significant criminal activity, as defined
275 by rule, committed:

276 (i) on the premises where the licensee operates its human services program;
277 (ii) by or against its clients; or
278 (iii) by or against a staff member while the staff member is on duty;
279 (b) immediately report to emergency medical services any medical emergency, as
280 defined by rule:
281 (i) on the premises where the licensee operates its human services program;
282 (ii) involving its clients; or
283 (iii) involving a staff member while the staff member is on duty; and
284 (c) immediately report other emergencies that occur on the premises where the licensee
285 operates its human services program to the appropriate emergency services agency.
286 Section 8. Section 62A-2-108 is amended to read:
287 62A-2-108. Licensure requirements -- Expiration -- Renewal.
288 (1) Except as provided in Section 62A-2-110 , a person, agency, firm, corporation,
289 association, or governmental unit, acting severally or jointly with any other person, agency,
290 firm, corporation, association, or governmental unit, may not establish, conduct, or maintain a
291 human services program in this state without a valid and current license issued by and under
292 the authority of the office as provided by this chapter and the rules of the licensing board.
293 (2) (a) For purposes of this Subsection (2), "member" means a person or entity that is
294 associated with another person or entity:
295 (i) as a member;
296 (ii) as a partner;
297 (iii) as a shareholder; or
298 (iv) as a person or entity involved in the ownership or management of a residential
299 treatment program owned or managed by the other person or entity.
300 (b) A license issued under this chapter may not be assigned or transferred.
301 (c) An application for a license under this chapter shall be treated as an application for
302 reinstatement of a revoked license if:
303 (i) (A) the person or entity applying for the license had a license revoked under this
304 chapter; and
305 (B) the revoked license described in Subsection (2)(c)(i)(A) is not reinstated before the
306 application described in this Subsection (2)(c) is made; or

307 (ii) a member of an entity applying for the license:
308 (A) (I) had a license revoked under this chapter; and
309 (II) the revoked license described in Subsection (2)(c)(ii)(A)(I) is not reinstated before
310 the application described in this Subsection (2)(c) is made; or
311 (B) (I) was a member of an entity that had a license revoked under this chapter at any
312 time before the license was revoked; and
313 (II) the revoked license described in Subsection (2)(c)(ii)(B)(I) is not reinstated before
314 the application described in this Subsection (2)(c) is made.
315 (3) A current license shall at all times be posted in the facility where each human
316 services program is operated, in a place that is visible and readily accessible to the public.
317 (4) (a) Each license issued under this chapter expires at midnight 12 months from the
318 date of issuance unless it has been:
319 (i) previously revoked by the office; or
320 (ii) voluntarily returned to the office by the licensee.
321 (b) A license shall be renewed upon application and payment of the applicable fee,
322 unless the office finds that the licensee:
323 (i) is not in compliance with the:
324 (A) provisions of this chapter; or
325 (B) rules made under this chapter;
326 (ii) has engaged in a pattern of noncompliance with the:
327 (A) provisions of this chapter; or
328 (B) rules made under this chapter;
329 (iii) has engaged in conduct that is grounds for denying a license under Section
330 62A-2-112 ; or
331 (iv) has engaged in conduct that poses a substantial risk of harm to any person.
332 (5) Any licensee that is in operation at the time rules are made in accordance with this
333 chapter shall be given a reasonable time for compliance as determined by the rule.
334 (6) (a) A license for a human services program issued under this section shall apply to
335 a specific human services program site.
336 (b) A human services program shall obtain a separate license for each site where the
337 human services program is operated.

338 (7) A human services program subject to the provisions of this chapter, and to the
339 provisions of Title 26, Chapter 48, Regulation of Chemical and Physical Restraints Act, shall
340 comply with:
341 (a) the provisions of this chapter and rules made under this chapter; and
342 (b) the provisions of Title 26, Chapter 48, Regulation of Chemical and Physical
343 Restraints Act, and rules adopted by the office under the provisions of that act and Section
344 62A-2-106 .




Legislative Review Note
as of 1-25-06 10:52 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel