POSITION OF THE NEW JERSEY COUNCIL ON DEVELOPMENTAL DISABILITIES REGARDING THE USE OF RESTRAINTS, SECLUSION, EQUIPMENT  AND AVERSIVE TECHNIQUES

BACKGROUND

In enacting the Developmental Disabilities Assistance and Bill of Rights Act of 2000, the United States Congress found that "individuals with developmental disabilities are at greater risk than the general population of abuse, neglect, financial and sexual exploitation, and the violation of their legal and human rights."  Significantly, the Developmental Disabilities Assistance and Bill of Rights Act also sets forth Congress' express finding that both the federal and state governments:

have an obligation to ensure that public funds are provided only to institutions … that provide treatment, services and habilitation that … meet minimum standards relating to [the] prohibition of the use of physical restraint and seclusion … unless absolutely necessary to ensure the immediate physical safety of the individual or others, and prohibition of the use of such restraint and seclusion as a punishment or as a substitute for a habilitation program.

[42 U.S.C. §15009(a)(3) (emphasis added)]

POSITION

Consistent with these principles, it is the position of the New Jersey Council on Developmental Disabilities (Council) that the use of restraints, seclusion, restrictive equipment and aversive techniques must be carefully defined and closely monitored to prevent misuse of these practices. It is also the position of the Council that the need for and use of such techniques must be minimized in favor of less restrictive practices and that certain restrictive and aversive techniques must be prohibited.

It is the further position of the Council that the State, through its applicable agencies, is required to define and prohibit those aversive techniques, chemical, physical, and mechanical restraints, seclusion practices, and safeguarding, therapeutic, and supportive equipment that pose an unacceptable risk of physical, psychological or emotional harm to people with developmental disabilities who reside in State funded or regulated facilities or who receive State services or public education.

RECOMMENDATIONS

To achieve this position the Council calls upon the State to clarify, expand, and effectively monitor and enforce protections for children and adults who are vulnerable to being subjected to unnecessary restraint, seclusion and aversive measures. Specifically, the Council calls upon the State to take regulatory action to:

1.    1. develop appropriate and clear definitions of aversive measures, chemical, physical, and mechanical restraints, seclusion, and safeguarding, therapeutic and supportive equipment in order to facilitate appropriate and effective regulation of methods that pose an unacceptable risk of physical, psychological or emotional harm

2.  prohibit the use of certain defined aversive techniques, certain forms of seclusion, and certain defined restraints and equipment that have been shown to present an unacceptable risk of  emotional harm or  physical  injuries

3.  appropriately and effectively regulate the use of identified and permitted practices.

4.    4. prohibit the inclusion of certain defined restraints as a standing order in  any  plan for an individual receiving services from a facility operated by any public or private entity that provides services to people with developmental disabilities   

5.   5. clearly define how and when specific restraints or equipment may be used in emergency situations to stop or prevent an immediate threat of personal injury

6.  clearly define how and when specific restraints or equipment may be used to enable physicians or other appropriately licensed health care professionals to administer medical examinations or treatments 

7.   clearly define when seclusion may be used and establish appropriate and effective protocols 

8.  clearly define when safeguarding, therapeutic or supportive equipment may be used and establish appropriate and effective protocols 

9.  require that any restraint or equipment utilized only be applied and monitored by staff trained in the use and proper application of the particular restraint or equipment and in accordance with recognized standards for lessening, exercise and monitoring

10.  establish standards for appropriate counseling and debriefing of affected individuals after the use of restraint, seclusion or  equipment ("affected individuals" includes the person subjected to the procedure, individuals with developmental disabilities who witness the procedure, and staff involved in the procedure) 

12. require ongoing training for all staff at facilities and agencies providing services for people with developmental disabilities in alternate approaches to challenging behavior, including positive behavioral supports and functional behavior analyses

14. require that individuals assigned to inspect, monitor, investigate or make decisions regarding the use of restraints, seclusion or  equipment on a person with a developmental disability possess appropriate expertise and training in the use of restraints, seclusion and   equipment and in alternate approaches to challenging behavior including positive behavioral supports and functional behavior analyses

15. require the State to create and maintain a system for tracking all incidents involving the use of restraints, seclusion or safeguarding, therapeutic and supportive equipment by individual and by facility, and for analyzing incident data for the purpose of quality improvement, including the identification of environments where individuals are at risk of harm, and for independent oversight and public reporting of all incidents involving the use of restraints, seclusion or safeguarding, therapeutic and supportive equipment

16.  16. require the State to create and maintain a public internet site that includes statistical information about the use of restraints, seclusion, or safeguarding, therapeutic and supportive equipment at individual facilities and provider agencies serving people with developmental disabilities

18. require the State to discourage requests and grants of waivers of laws, regulations or policy directives concerning prohibited practices

19. in the rare circumstances when such waivers are considered,  require that  providers  conduct a functional behavioral analysis as a prerequisite for any waiver that would allow restraints to be used in a plan for an individual with developmental disabilities and require providers to include as part of any such waiver specific steps to limit or terminate the use of these procedures and plans to replace them with positive behavioral supports

ADOPTED:  MARCH 24, 2005

SUPERSEDES INTERIM POSITION ADOPTED JANUARY 22, 2004