(REPRINTED WITH ADOPTED AMENDMENTS)
FIRST REPRINT S.B. 116
Senate Bill No. 116–Committee on Human
Resources and Facilities
(On Behalf of Department of Human
Resources—Mental
Health and Developmental Services)
February 13, 2001
____________
Referred to Committee on Human Resources and Facilities
SUMMARY—Revises provisions governing use of restraints and interventions on persons with disabilities. (BDR 39‑346)
FISCAL NOTE: Effect on Local Government: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to persons with disabilities; prescribing the circumstances under which a secure facility for mentally disordered offenders may use mechanical restraint on clients who have disabilities; revising provisions governing the duty of the board of trustees of a school district and the administrator of a private school in response to a report of the use of physical restraint or mechanical restraint on a pupil with a disability; revising provisions governing the reporting of certain violations involving pupils with disabilities; 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. Chapter 433 of NRS is hereby amended by adding thereto a
1-2 new section to read as follows:
1-3 1. Except as otherwise provided in subsection 3, mechanical restraint
1-4 may be used on a person with a disability who is a client of a forensic
1-5 facility only if:
1-6 (a) An emergency exists that necessitates the use of the mechanical
1-7 restraint;
1-8 (b) The client’s behavior presents an imminent threat of causing
1-9 physical injury to himself or to others or causing severe property damage
1-10 and less restrictive measures have failed to modify the client’s behavior;
1-11 (c) The client is in the care of the facility but not on the premises of
1-12 the facility and mechanical restraint is necessary to ensure security; or
1-13 (d) The client is in the process of being transported to another
1-14 location and mechanical restraint is necessary to ensure security.
2-1 2. If mechanical restraint is used pursuant to subsection 1, the
2-2 forensic facility shall ensure that:
2-3 (a) The mechanical restraint is applied by a member of the staff of the
2-4 facility who is trained and qualified to apply mechanical restraint;
2-5 (b) A member of the staff of the facility continuously monitors the
2-6 client during the time that mechanical restraint is used on the client;
2-7 (c) The record of the client contains a notation that indicates the time
2-8 period during which the restraint was used and the circumstances
2-9 warranting the restraint; and
2-10 (d) The mechanical restraint is used only for the period that is
2-11 necessary.
2-12 3. Mechanical restraint may be used on a person with a disability
2-13 who is a client of a forensic facility, and the provisions of subsections 1
2-14 and 2 do not apply if the mechanical restraint is used to:
2-15 (a) Treat the medical needs of a client;
2-16 (b) Protect a client who is known to be at risk of injury to himself
2-17 because he lacks coordination or suffers from frequent loss of
2-18 consciousness;
2-19 (c) Provide proper body alignment to a client; or
2-20 (d) Position a client who has physical disabilities in a manner
2-21 prescribed in the client’s plan of services.
2-22 4. If mechanical restraint is used in an emergency on a person with a
2-23 disability who is a client of a forensic facility, the use of the procedure
2-24 must be reported as a denial of rights pursuant to NRS 433.534,
2-25 regardless of whether the use of the procedure is authorized by statute.
2-26 The report must be made not later than 1 working day after the
2-27 procedure is used.
2-28 5. As used in this section, “forensic facility” means a secure facility
2-29 of the division for mentally disordered offenders and defendants who are
2-30 ordered to the facility pursuant to chapter 178 of NRS.
2-31 Sec. 2. NRS 433.545 is hereby amended to read as follows:
2-32 433.545 As used in NRS 433.545 to 433.551, inclusive, and section 1
2-33 of this act, unless the context otherwise requires, the words and terms
2-34 defined in NRS 433.5453 to 433.548, inclusive,have the meanings
2-35 ascribed to them in those sections.
2-36 Sec. 3. NRS 433.547 is hereby amended to read as follows:
2-37 433.547 “Mechanical restraint” means the use of devices, including,
2-38 without limitation, mittens, straps , [and] restraint chairs , handcuffs, belly
2-39 chains and four-point restraints to limit a person’s movement or hold a
2-40 person immobile.
2-41 Sec. 4. NRS 433.549 is hereby amended to read as follows:
2-42 433.549 A person employed by a facility or any other person shall not:
2-43 1. Except as otherwise provided in NRS 433.5493, use physical
2-44 restraint on a person with a disability who is a client.
2-45 2. Except as otherwise provided in NRS 433.5496 [,] and section 1 of
2-46 this act, use mechanical restraint on a person with a disability who is a
2-47 client.
2-48 3. Except as otherwise provided in NRS 433.5503, use chemical
2-49 restraint on a person with a disability who is a client.
3-1 Sec. 5. NRS 433.5496 is hereby amended to read as follows:
3-2 433.5496 1. Except as otherwise provided in [subsection 2,]
3-3 subsections 2 and 4, mechanical restraint may be used on a person with a
3-4 disability who is a client only if:
3-5 (a) An emergency exists that necessitates the use of mechanical
3-6 restraint;
3-7 (b) A medical order authorizing the use of mechanical restraint is
3-8 obtained from the client’s treating physician before the application of the
3-9 mechanical restraint or not later than 15 minutes after the application of the
3-10 mechanical restraint;
3-11 (c) The physician who signed the order required pursuant to paragraph
3-12 (b) or the attending physician examines the client not later than 1 working
3-13 day immediately after the application of the mechanical restraint;
3-14 (d) The mechanical restraint is applied by a member of the staff of the
3-15 facility who is trained and qualified to apply mechanical restraint;
3-16 (e) The client is given the opportunity to move and exercise the parts of
3-17 his body that are restrained at least 10 minutes per every 60 minutes of
3-18 restraint;
3-19 (f) A member of the staff of the facility lessens or discontinues the
3-20 restraint every 15 minutes to determine whether the client will stop or
3-21 control his inappropriate behavior without the use of the restraint;
3-22 (g) The record of the client contains a notation that includes the time of
3-23 day that the restraint was lessened or discontinued pursuant to paragraph
3-24 (f), the response of the client and the response of the member of the staff of
3-25 the facility who applied the mechanical restraint;
3-26 (h) A member of the staff of the facility continuously monitors the
3-27 client during the time that mechanical restraint is used on the client; and
3-28 (i) The mechanical restraint is used only for the period that is necessary
3-29 to contain the behavior of the client so that the client is no longer an
3-30 immediate threat of causing physical injury to himself or others or causing
3-31 severe property damage.
3-32 2. Mechanical restraint may be used on a person with a disability who
3-33 is a client and the provisions of subsection 1 do not apply if the mechanical
3-34 restraint is used to:
3-35 (a) Treat the medical needs of a client;
3-36 (b) Protect a client who is known to be at risk of injury to himself
3-37 because he lacks coordination or suffers from frequent loss of
3-38 consciousness;
3-39 (c) Provide proper body alignment to a client; or
3-40 (d) Position a client who has physical disabilities in a manner prescribed
3-41 in the client’s plan of services.
3-42 3. If mechanical restraint is used on a person with a disability who is a
3-43 client in an emergency, the use of the procedure must be reported as a
3-44 denial of rights pursuant to NRS 433.534, regardless of whether the use of
3-45 the procedure is authorized by statute. The report must be made not later
3-46 than 1 working day after the procedure is used.
3-47 4. The provisions of this section do not apply to a forensic facility, as
3-48 that term is defined in subsection 5 of section 1 of this act.
4-1 Sec. 6. NRS 388.5275 is hereby amended to read as follows:
4-2 388.5275 1. Except as otherwise provided in subsection 2, physical
4-3 restraint may be used on a pupil with a disability only if:
4-4 (a) An emergency exists that necessitates the use of physical restraint;
4-5 (b) The physical restraint is used only for the period that is necessary to
4-6 contain the behavior of the pupil so that the pupil is no longer an
4-7 immediate threat of causing physical injury to himself or others or causing
4-8 severe property damage; and
4-9 (c) The use of force in the application of physical restraint does not
4-10 exceed the force that is reasonable and necessary under the circumstances
4-11 precipitating the use of physical restraint.
4-12 2. Physical restraint may be used on a pupil with a disability and the
4-13 provisions of subsection 1 do not apply if the physical restraint is used to:
4-14 (a) Assist the pupil in completing a task or response if the pupil does not
4-15 resist the application of physical restraint or if his resistance is minimal in
4-16 intensity and duration;
4-17 (b) Escort or carry a pupil to safety if the pupil is in danger in his
4-18 present location; or
4-19 (c) Conduct medical examinations or treatments on the pupil that are
4-20 necessary.
4-21 3. If physical restraint is used on a pupil with a disability in an
4-22 emergency, the use of the procedure must be reported in the pupil’s
4-23 cumulative record and a confidential file maintained for the pupil not later
4-24 than 1 working day after the procedure is used. A copy of the report must
4-25 be provided to the board of trustees of the school district, the pupil’s
4-26 individualized education program team and the parent or guardian of the
4-27 pupil. The board of trustees shall review the report during a closed
4-28 meeting to determine whether a denial of the pupil’s rights has occurred.
4-29 The board of trustees shall:
4-30 (a) At least 5 school days before the date of the meeting, provide
4-31 notice of the meeting to the pupil’s individualized education program
4-32 team and the parent or legal guardian of the pupil; and
4-33 (b) Allow the pupil’s individualized education program team, or
4-34 members thereof, and the parent or legal guardian of the pupil to attend
4-35 and participate in the meeting.
4-36 If the board of trustees determines that a denial of the pupil’s rights has
4-37 occurred, the board of trustees [may] shall submit a confidential report to
4-38 the department in accordance with NRS 388.5315.
4-39 4. The provisions of chapter 241 of NRS do not apply to a meeting
4-40 held by the board of trustees of a school district pursuant to subsection 3.
4-41 Sec. 7. NRS 388.528 is hereby amended to read as follows:
4-42 388.528 1. Except as otherwise provided in subsection 2, mechanical
4-43 restraint may be used on a pupil with a disability only if:
4-44 (a) An emergency exists that necessitates the use of mechanical
4-45 restraint;
4-46 (b) A medical order authorizing the use of mechanical restraint is
4-47 obtained from the pupil’s treating physician before the application of the
4-48 mechanical restraint or not later than 15 minutes after the application of the
4-49 mechanical restraint;
5-1 (c) The physician who signed the order required pursuant to paragraph
5-2 (b) or the attending physician examines the pupil as soon as practicable;
5-3 (d) The mechanical restraint is applied by a member of the staff of the
5-4 school who is trained and qualified to apply mechanical restraint;
5-5 (e) The pupil is given the opportunity to move and exercise the parts of
5-6 his body that are restrained at least 10 minutes per every 60 minutes of
5-7 restraint, unless otherwise prescribed by the physician who signed the
5-8 order;
5-9 (f) A member of the staff of the school lessens or discontinues the
5-10 restraint every 15 minutes to determine whether the pupil will stop or
5-11 control his inappropriate behavior without the use of the restraint;
5-12 (g) The record of the pupil contains a notation that includes the time of
5-13 day that the restraint was lessened or discontinued pursuant to paragraph
5-14 (f), the response of the pupil and the response of the member of the staff of
5-15 the school who applied the mechanical restraint;
5-16 (h) A member of the staff of the school continuously monitors the pupil
5-17 during the time that mechanical restraint is used on the pupil; and
5-18 (i) The mechanical restraint is used only for the period that is necessary
5-19 to contain the behavior of the pupil so that the pupil is no longer an
5-20 immediate threat of causing physical injury to himself or others or causing
5-21 severe property damage.
5-22 2. Mechanical restraint may be used on a pupil with a disability and
5-23 the provisions of subsection 1 do not apply if the mechanical restraint is
5-24 used to:
5-25 (a) Treat the medical needs of the pupil;
5-26 (b) Protect a pupil who is known to be at risk of injury to himself
5-27 because he lacks coordination or suffers from frequent loss of
5-28 consciousness;
5-29 (c) Provide proper body alignment to a pupil; or
5-30 (d) Position a pupil who has physical disabilities in a manner prescribed
5-31 in the pupil’s individualized education program.
5-32 3. If mechanical restraint is used on a pupil with a disability in an
5-33 emergency, the use of the procedure must be reported in the pupil’s
5-34 cumulative record and a confidential file maintained for the pupil not later
5-35 than 1 working day after the procedure is used. A copy of the report must
5-36 be provided to the board of trustees of the school district, the pupil’s
5-37 individualized education program team and the parent or guardian of the
5-38 pupil. The board of trustees shall review the report during a closed
5-39 meeting to determine whether a denial of the pupil’s rights has occurred.
5-40 The board of trustees shall:
5-41 (a) At least 5 school days before the date of the meeting, provide
5-42 notice of the meeting to the pupil’s individualized education program
5-43 team and the parent or legal guardian of the pupil; and
5-44 (b) Allow the pupil’s individualized education program team, or
5-45 members thereof, and the parent or legal guardian of the pupil to attend
5-46 and participate in the meeting.
5-47 If the board of trustees determines that a denial of the pupil’s rights has
5-48 occurred, the board of trustees [may] shall submit a confidential report to
5-49 the department in accordance with NRS 388.5315.
6-1 4. The provisions of chapter 241 of NRS do not apply to a meeting
6-2 held by the board of trustees of a school district pursuant to subsection 3.
6-3 Sec. 8. NRS 388.5295 is hereby amended to read as follows:
6-4 388.5295 1. A school where a violation of NRS 388.521 to
6-5 388.5315, inclusive, occurs shall report the violation to the board of
6-6 trustees of the school district [not] , the parent or legal guardian of the
6-7 pupil against whom the action was taken and the pupil’s individualized
6-8 education program team. The report must be made:
6-9 (a) Not later than 24 hours after the violation occurred, or as soon
6-10 thereafter as the violation is discovered.
6-11 (b) To the parent or legal guardian of the pupil and the pupil’s
6-12 individualized education program team in a manner that does not violate
6-13 the confidentiality of any other pupil involved in the incident.
6-14 2. The board of trustees of the school district where the violation
6-15 occurred shall develop, in cooperation with the superintendent of schools
6-16 of the school district, a corrective plan to ensure that within 30 calendar
6-17 days after the violation occurred, appropriate action is taken by the school
6-18 and the board of trustees to prevent future violations.
6-19 3. The superintendent of schools of the school district shall submit the
6-20 plan to the department. The department shall review the plan to ensure that
6-21 it complies with applicable federal law and the statutes and regulations of
6-22 this state. The department may require appropriate revision of the plan to
6-23 ensure compliance.
6-24 4. If the school where the violation occurred does not meet the
6-25 requirements of the plan to the satisfaction of the department, the
6-26 department may appoint a licensed administrator to oversee the school to
6-27 ensure that the school meets the requirements of the plan. An administrator
6-28 serves at the pleasure of the superintendent of public instruction and is
6-29 entitled to receive such compensation as may be set by the superintendent.
6-30 A school district that contains a school for which an administrator is
6-31 appointed pursuant to this subsection shall reimburse the department for
6-32 any expenses incurred by the department pursuant to this subsection.
6-33 Sec. 9. NRS 388.5315 is hereby amended to read as follows:
6-34 388.5315 1. A denial of rights of a pupil with a disability pursuant to
6-35 NRS 388.521 to 388.5315, inclusive, must be entered in the pupil’s
6-36 cumulative record and a confidential file maintained for that pupil. Notice
6-37 of the denial must be provided to the board of trustees of the school district
6-38 [.] , the parent or legal guardian of the pupil and the pupil’s
6-39 individualized education program team.
6-40 2. If the board of trustees of a school district receives notice of a denial
6-41 of rights pursuant to subsection 1, it shall cause a full report to be prepared
6-42 which must set forth in detail the factual circumstances surrounding the
6-43 denial. A copy of the report must be provided to the department.
6-44 3. The department:
6-45 (a) Shall receive reports made pursuant to subsection 2;
6-46 (b) May investigate apparent violations of the rights of pupils with
6-47 disabilities; and
6-48 (c) May act to resolve disputes relating to apparent violations.
7-1 Sec. 10. NRS 394.368 is hereby amended to read as follows:
7-2 394.368 1. Except as otherwise provided in subsection 2, physical
7-3 restraint may be used on a pupil with a disability only if:
7-4 (a) An emergency exists that necessitates the use of physical restraint;
7-5 (b) The physical restraint is used only for the period that is necessary to
7-6 contain the behavior of the pupil so that the pupil is no longer an
7-7 immediate threat of causing physical injury to himself or others or causing
7-8 severe property damage; and
7-9 (c) The use of force in the application of physical restraint does not
7-10 exceed the force that is reasonable and necessary under the circumstances
7-11 precipitating the use of physical restraint.
7-12 2. Physical restraint may be used on a pupil with a disability and the
7-13 provisions of subsection 1 do not apply if the physical restraint is used to:
7-14 (a) Assist the pupil in completing a task or response if the pupil does not
7-15 resist the application of physical restraint or if his resistance is minimal in
7-16 intensity and duration;
7-17 (b) Escort or carry a pupil to safety if the pupil is in danger in his
7-18 present location; or
7-19 (c) Conduct medical examinations or treatments on the pupil that are
7-20 necessary.
7-21 3. If physical restraint is used on a pupil with a disability in an
7-22 emergency, the use of the procedure must be reported in the pupil’s
7-23 cumulative record not later than 1 working day after the procedure is used.
7-24 A copy of the report must be provided to the superintendent, the
7-25 administrator of the private school, the pupil’s individualized education
7-26 program team, if applicable, and the parent or guardian of the pupil. The
7-27 administrator of the private school shall hold a meeting with the pupil’s
7-28 individualized education program team, if applicable, and the parent or
7-29 legal guardian of the pupil to review the report and consider whether a
7-30 denial of the pupil’s rights has occurred. The administrator of the private
7-31 school shall provide notice of the meeting to the pupil’s individualized
7-32 education program team, if applicable, and the parent or legal guardian
7-33 of the pupil at least 5 school days before the meeting. The meeting must
7-34 be conducted in a manner that does not violate the confidentiality of the
7-35 pupil. The administrator of the private school shall review the report and
7-36 determine whether a violation of the pupil’s rights has occurred,
7-37 regardless of whether the pupil’s individualized education program team
7-38 or the parent or legal guardian of the pupil attend or participate in the
7-39 meeting. If the administrator of the private school determines that a denial
7-40 of the pupil’s rights has occurred, the administrator shall submit a
7-41 confidential report to the superintendent in accordance with NRS 394.378.
7-42 Sec. 11. NRS 394.369 is hereby amended to read as follows:
7-43 394.369 1. Except as otherwise provided in subsection 2, mechanical
7-44 restraint may be used on a pupil with a disability only if:
7-45 (a) An emergency exists that necessitates the use of mechanical
7-46 restraint;
7-47 (b) A medical order authorizing the use of mechanical restraint is
7-48 obtained from the pupil’s treating physician before the application of the
8-1 mechanical restraint or not later than 15 minutes after the application of the
8-2 mechanical restraint;
8-3 (c) The physician who signed the order required pursuant to paragraph
8-4 (b) or the attending physician examines the pupil as soon as practicable
8-5 after the application of the mechanical restraint;
8-6 (d) The mechanical restraint is applied by a member of the staff of the
8-7 private school who is trained and qualified to apply mechanical restraint;
8-8 (e) The pupil is given the opportunity to move and exercise the parts of
8-9 his body that are restrained at least 10 minutes per every 60 minutes of
8-10 restraint, unless otherwise prescribed by the physician who signed the
8-11 order;
8-12 (f) A member of the staff of the private school lessens or discontinues
8-13 the restraint every 15 minutes to determine whether the pupil will stop or
8-14 control his inappropriate behavior without the use of the restraint;
8-15 (g) The record of the pupil contains a notation that includes the time of
8-16 day that the restraint was lessened or discontinued pursuant to paragraph
8-17 (f), the response of the pupil and the response of the member of the staff of
8-18 the private school who applied the mechanical restraint;
8-19 (h) A member of the staff of the private school continuously monitors
8-20 the pupil during the time that mechanical restraint is used on the pupil; and
8-21 (i) The mechanical restraint is used only for the period that is necessary
8-22 to contain the behavior of the pupil so that the pupil is no longer an
8-23 immediate threat of causing physical injury to himself or others or causing
8-24 severe property damage.
8-25 2. Mechanical restraint may be used on a pupil with a disability and
8-26 the provisions of subsection 1 do not apply if the mechanical restraint is
8-27 used to:
8-28 (a) Treat the medical needs of the pupil;
8-29 (b) Protect a pupil who is known to be at risk of injury to himself
8-30 because he lacks coordination or suffers from frequent loss of
8-31 consciousness;
8-32 (c) Provide proper body alignment to a pupil; or
8-33 (d) Position a pupil who has physical disabilities in a manner prescribed
8-34 in the pupil’s service plan developed pursuant to 34 C.F.R. § 300.455 or
8-35 the pupil’s individualized education program, whichever is appropriate.
8-36 3. If mechanical restraint is used on a pupil with a disability in an
8-37 emergency, the use of the procedure must be reported in the pupil’s
8-38 cumulative record not later than 1 working day after the procedure is used.
8-39 A copy of the report must be provided to the superintendent, the
8-40 administrator of the private school, the pupil’s individualized education
8-41 program team, if applicable, and the parent or guardian of the pupil. The
8-42 administrator of the private school shall hold a meeting with the pupil’s
8-43 individualized education program team, if applicable, and the parent or
8-44 legal guardian of the pupil to review the report and consider whether a
8-45 denial of the pupil’s rights has occurred. The administrator of the private
8-46 school shall provide notice of the meeting to the pupil’s individualized
8-47 education program team, if applicable, and the parent or legal guardian
8-48 of the pupil at least 5 school days before the meeting. The meeting must
8-49 be conducted in a manner that does not violate the confidentiality of the
9-1 pupil. The administrator of the private school shall review the report and
9-2 determine whether a violation of the pupil’s rights has occurred,
9-3 regardless of whether the pupil’s individualized education program team
9-4 or the parent or legal guardian of the pupil attend or participate in the
9-5 meeting. If the administrator of the private school determines that a denial
9-6 of the pupil’s rights has occurred, the administrator shall submit a
9-7 confidential report to the superintendent in accordance with NRS 394.378.
9-8 4. As used in this section, “individualized education program” has the
9-9 meaning ascribed to it in 20 U.S.C. § 1414(d)(1)(A).
9-10 Sec. 12. NRS 394.376 is hereby amended to read as follows:
9-11 394.376 1. A private school where a violation of NRS 394.353 to
9-12 394.378, inclusive, occurs shall report the violation to the superintendent
9-13 [not] , the parent or legal guardian of the pupil against whom the action
9-14 was taken and the pupil’s individualized education program team, if
9-15 applicable. The report must be made:
9-16 (a) Not later than 24 hours after the violation occurred, or as soon
9-17 thereafter as the violation is discovered.
9-18 (b) To the parent or legal guardian of the pupil and the pupil’s
9-19 individualized education program team in a manner that does not violate
9-20 the confidentiality of any other pupil involved in the incident.
9-21 2. The private school where a violation occurred shall develop, in
9-22 cooperation with the superintendent, a corrective plan to ensure that within
9-23 30 calendar days after the violation occurred, appropriate action is taken by
9-24 the private school to prevent future violations.
9-25 3. The superintendent shall submit the plan to the department. The
9-26 department shall review the plan to ensure that it complies with applicable
9-27 federal law and the statutes and regulations of this state. The department
9-28 may require appropriate revision of the plan to ensure compliance.
9-29 Sec. 13. NRS 394.378 is hereby amended to read as follows:
9-30 394.378 1. A denial of rights of a pupil with a disability pursuant to
9-31 NRS 394.353 to 394.378, inclusive, must be entered in the pupil’s
9-32 cumulative record. Notice of the denial must be provided to the
9-33 administrator of the private school [.] , the parent or legal guardian of the
9-34 pupil and the pupil’s individualized education program team, if
9-35 applicable.
9-36 2. If the administrator of a private school receives notice of a denial of
9-37 rights pursuant to subsection 1, he shall cause a full report to be prepared
9-38 which must set forth in detail the factual circumstances surrounding the
9-39 denial. A copy of the report must be provided to the superintendent.
9-40 3. The superintendent:
9-41 (a) Shall receive reports made pursuant to subsection 2;
9-42 (b) May investigate apparent violations of the rights of pupils with
9-43 disabilities; and
9-44 (c) May act to resolve disputes relating to apparent violations.
9-45 Sec. 14. This act becomes effective upon passage and approval.
9-46 H