Certain provisions of this section are included to implement regulations of the federal centers for medicare and medicaid services (CMS) and may be amended when appropriate to reflect subsequent changes in the federal CMS regulations. These provisions are intended to implement, and to be consistent with the Child Health Act of 2000 and the CMS Interim Final Rule issued May 22, 2001, and are subject to further modifications as dictated by CMS.

1. A. The agency protects and promotes the rights of each client in the program, including the right to be free from physical or mental abuse, corporal punishment, and any personal restraint or seclusion imposed for purposes of discipline or convenience. The agency establishes and follows policies and procedures governing the use of behavior management practices including therapeutic hold, personal restraint and seclusion (when allowed as delineated below). This will include documentation of each therapeutic hold, personal restraint and seclusion in the client’s record.

2. B. For those behavior management practices that are allowed for each type of program and are described above, the program supports their limited and justified use through:

   (1) staff orientation and education that create a culture emphasizing prevention of the need for therapeutic hold, personal restraint and seclusion and their appropriate use;

   (2) assessment processes that identify and prevent potential behavioral risk factors; and

   (3) the development and promotion of preventive strategies and use of less restrictive alternatives.

3. C. Agency policy and procedures identify qualified staff authorized to approve the protocols and apply the criteria for use of therapeutic hold, personal restraint and seclusion.
4. D. Performance-improvement processes identify opportunities to reduce or eliminate the use of personal restraint or seclusion.
5. E. The agency establishes and follows policies and procedures for the safe, effective, limited, and least restrictive use of behavior management practices. The policies and procedures include measures to ensure that treatment planning includes regular review of the necessity for, type and frequency of behavior management practices used in individual cases.
6. F. When behavior management practices are used, the agency protects the safety, dignity, and privacy of clients to the maximum extent possible at all times during each procedure.
7. G. Treatment plans document the use of seclusion, personal restraint and therapeutic holds and include: consideration of the client’s medical condition(s); the role of the client’s history of trauma in his/her behavioral patterns; the treatment team’s solicitation and consideration of specific suggestions from the client regarding prevention of future physical interventions.
8. H. Seclusion, personal restraint and therapeutic holds are implemented only by staff who have been trained and certified by a state recognized body in the prevention and use of therapeutic holds, personal restraint and seclusion. This training emphasizes de-escalation techniques and alternatives to physical contact with clients as a means of managing behavior. Clients do not participate in the therapeutic holding, personal restraint or seclusion of other clients.
9. I. Mechanical and chemical restraints are prohibited in all programs except the program created under the Adolescent Treatment Hospital Act, which has been mandated by NMSA 1978 Sections 23-9-1 et.seq., to serve adolescents who are violent or have a history of violence, and which provides 24-hour on-site professional medical services in accordance with Section 3207 of the Children’s Health Act of 2000.
10. J. Personal restraint and seclusion, as defined in these certification requirements, are used in JCAHO-accredited or non-JCAHO-accredited residential treatment centers and group homes; in emergency circumstances to ensure the immediate physical safety of the client, other clients, staff member(s) or others; and when less restrictive interventions have been determined to be ineffective. Personal restraint and seclusion are used in accordance with these provisions and with federal law, rule or regulation which may supersede state or accreditation regulations. Personal restraint and seclusion are imposed only by an individual trained and certified by a state-recognized body in the prevention and use of personal restraint and seclusion and in the curriculum that may be set forth in federal regulations to be promulgated under Title V of the Public Health Service Act (42 U.S.C. 290aa et seq. as amended by section 3208, Part I, section 595). When federal regulations are promulgated under Title V as described above, the curriculum set forth there shall be included in the training.
11. K. Physical escort is allowed as a safe means of moving a client to a safe location.
12. L. Personal restraint or seclusion are not to be used for staff convenience and/or as coercion, discipline, or retaliation by staff.

13. M. This sub-section (M) applies, for personal restraint, to facilities accredited by JCAHO, and to all residential treatment centers for seclusion. These entities require orders that are consistent with Department regulation, agency policy, and regulations of the centers for medicare and medicaid services (CMS) 42 CFR, Parts 441 and 483. These orders are issued by a restraint/seclusion clinician within one hour of initiation of personal restraint or seclusion, and include documented clinical justification for the use of personal restraint or seclusion.

    (1) If the client has a treatment team physician and he or she is available, only he or she can order personal restraint or seclusion.

    (2) If personal restraint or seclusion is ordered by someone other than the client’s treatment team physician, the restraint/seclusion clinician will consult with the client’s treatment team physician as soon as possible and inform him or her of the situation requiring the client to be restrained or placed in seclusion and document in the client’s record the date and time the treatment team physician was consulted and the information imparted.

    (3) The restraint/seclusion clinician must order the least restrictive emergency safety intervention that is most likely to be effective in resolving the situation.

    (4) If the order for personal restraint is verbal, the verbal order must be received by a restraint/seclusion clinician or a New Mexico licensed registered nurse (RN) or practical nurse (LPN). The restraint/seclusion clinician must verify the verbal order in a signed, written form placed in the client’s record within 24 hours after the order is issued.

    (5) A restraint/seclusion clinician’s order must be obtained by a restraint/seclusion clinician or New Mexico licensed RN or LPN prior to or while the personal restraint or seclusion is being initiated by staff, or immediately after the situation ends.

    (6) Each order for personal restraint or seclusion must be documented in the client’s record and will include:

    (a) the name of the restraint/seclusion clinician ordering the personal restraint or seclusion;

    (b) the date and time the order was obtained;

    (c) the emergency safety intervention ordered, including the length of time;

    (d) the time the emergency safety intervention actually began and ended;

    (e) the time and results of any one-hour assessment(s) required; and

    (f) the emergency safety situation that required the client to be restrained or put in seclusion; and

    (g) the name, title, and credentials of staff involved in the emergency safety intervention.

    (7) Supervision and assessment of personal restraint or seclusion

    (a) The restraint/seclusion clinician must be available to staff for consultation, at least by telephone, throughout the period of the emergency safety intervention.

    (b) A New Mexico registered nurse or a restraint/seclusion clinician other than a doctoral level psychologist, must conduct a face-to-face assessment of the physical well being of the client within one hour of the initiation of the emergency safety intervention and immediately after the personal restraint is removed or the client is removed from seclusion. A restraint/seclusion clinician or a New Mexico registered nurse must conduct a face-to-face assessment of the psychological well being of the client within one hour of the initiation of the emergency safety intervention and immediately after the personal restraint is removed or the client is removed from seclusion. When the personal restraint or seclusion is less than one hour in duration, and the restraint/seclusion clinician is not immediately available at the end of the period of restraint or seclusion, the restraint/seclusion clinician will evaluate the client’s well-being as soon as possible after the conclusion of the restraint/seclusion, but in no case later than one hour after its initiation.

    (c) If the situation requiring emergency safety intervention continues beyond the time limit of the order for the use of personal restraint or seclusion, the New Mexico RN or LPN must immediately contact the ordering restraint/seclusion clinician or the client’s treatment team physician to receive further instructions. If clinical circumstances justify renewal of personal restraint or seclusion, then the renewal order must be obtained within the time frames outlined in 24.O (1) below.

14. N. This sub-section (N) applies to personal restraint in residential treatment services not accredited by JCAHO. In these residential treatment services, personal restraint requires the following, which is consistent with department regulation and agency policy.

    (1) A New Mexico licensed independent practitioner, licensed professional mental health counselor (LPC), licensed master social worker (LMSW), or registered nurse must be available to staff for consultation, at least by telephone, throughout the period of the emergency safety intervention.

    (2) A New Mexico licensed independent practitioner, or a licensed professional mental health counselor (LPC), licensed master social worker (LMSW), in consultation with a licensed independent practitioner, or a registered nurse trained in the use of emergency safety interventions must conduct a face-to-face assessment of the well-being of the client within one hour of the initiation of the emergency safety intervention and immediately after the personal restraint is removed or the client is removed from seclusion. When the personal restraint or seclusion is less than one hour in duration, and the restraint/seclusion clinician is not immediately available at the end of the period of restraint or seclusion, the restraint/seclusion clinician will evaluate the client’s well-being as soon as possible after the conclusion of the restraint/seclusion, bu in no case later than one hour after its initiation.

15. O. The following sub-section (O) applies to all residential treatment centers and group homes.

    (1) The personal restraint or seclusion is limited to a maximum of two hours for clients age of 17 and one hour for clients under nine years of age.

    (2) Post-intervention debriefings with the client will take place after each emergency safety intervention and the staff will document in the client’s record that the debriefing sessions took place.

    (3) The agency will have affiliations or written transfer agreements in effect with one or more hospitals approved for participation under the medicaid program that reasonably ensure that:

    (a) A client will be transferred from the facility to the hospital and admitted in a timely manner when a transfer is medically necessary for medical care or acute psychiatric care;

    (b) Medical and other information needed for care of the client in light of such transfer will be exchanged between the organizations in accordance with state medical privacy law, including any information needed to determine whether the appropriate care can be provided in a less restrictive setting; and

    (c) Services will be available to each client 24 hours a day, seven days a week.

    (4) The agency will document in the client’s record all client injuries that occur as a result of an emergency safety intervention.

    (5) All agencies will attest in writing that the facility is in compliance with CMS standards governing the use of personal restraint and seclusion. This attestation will be signed by the agency director.

    (6) If the client is a minor, the agency will notify the parent(s) or legal guardian(s) that personal restraint or seclusion has been ordered as soon as possible after the initiation of each emergency safety intervention. This will be documented in the client’s record, including the date and time of notification, the name of the staff person providing the notification, and who was notified.

    (7) Agencies will provide for client health and safety by requiring direct service staff to demonstrate competencies related to the use of emergency safety interventions on a semiannual basis. Direct service staff will demonstrate, on an annual basis, their competency in the use of cardiopulmonary resuscitation. The agency will document in the staff personnel records that the training required was successfully completed.

    (8) The agency must maintain an aggregate record of all situations requiring emergency safety intervention, the interventions used and their outcomes.

    (9) Programs must report the death of any client to the CMS regional office by no later than close of business the next business day after the client’s death. The report must include the name of the client and the name, street address and telephone number of the agency. The parent or legal guardian will also be notified. Staff must document in the client’s record that the death was reported to the CMS regional office.

[7.20.11.24 NMAC - N, 03/29/02]