(Cross-posted from The COFAR Blog)
The Baker administration is proposing major changes to regulations governing behavior modification techniques and restraints that are used on persons with developmental disabilities.
The Department of Developmental Services claims these changes will enable disabled individuals “to grow and reach their maximum potential,” and will limit or eliminate the use of certain types of controversial restraints, which are used during behavioral emergencies. We read the proposed changes differently, however.
In our view, the proposed changes would eliminate a large number of specific requirements and restrictions on behavioral techniques and restraints, and replace them in most cases with more vaguely worded provisions that will provide less protection against potential abuse.
For instance, DDS is proposing to scrap the current regulatory definitions of chemical, mechanical, and physical restraints as well as many of the procedures specified in the current regulations regarding those restraints. These procedures would be replaced by a process called the “Crisis Prevention, Response and Restraint curriculum” (CPRR).
It’s not clear in the proposed regulations what the CPRR curriculum is. The proposed language states that the CPRR curriculum uses “Positive Behavior Supports as the framework,” but, as I discuss below, the proposed regulations are equally vague about what the Positive Behavior Supports (PBS) involve.
According to the proposed regulations, the CPRR curriculum will or already does contain a list of “acceptable restraint techniques.” But the proposed regulations don’t appear to specify what those acceptable techniques are. Nevertheless, the proposed regulations state that there is a list of DDS-qualified CPRR Curriculum providers who will apparently instruct DDS residential and day program providers in CPRR procedures.
As noted, a lot of specific requirements in the current regulations would be deleted in the proposed regulations. For instance, requirements would be deleted that mechanical and physical restraints be authorized by either the provider agency head, an authorized physician, or a designated staff member who has had training in the safe use of those procedures.
Also deleted is language stating that any mechanical device used as a restraint must must allow for “the physical and emotional comfort of the individual in restraint.” In addition, the current regulations state that locked mechanical restraint devices requiring the use of a key for their release are prohibited. This statement is deleted as well in the proposed regulations.
It’s possible that all of these requirements are contained in the CPRR curriculum; but we think these requirements should still be spelled out in regulations, which carry the force of law.
The CPRR curriculum, whatever it is, could be changed at any time and would seem to leave it up to the discretion of DDS and the unspecified curriculum providers as to what types of restraints are acceptable and how they should be used. That could make it difficult for families or guardians to challenge the use of restraints on their loved ones if they believe those restraints are being used excessively or abusively.
This does not appear to us to be a good direction for DDS to take given the fact that the use of restraints has become increasingly controversial in recent years.
Regarding the allowable duration of restraints, the proposed regulations would appear at first glance to be an improvement over the current regulations; but even here, the proposed language appears more ambiguous than the current language.
The proposed language states that no individual can be restrained for more than 60 minutes. The current regulations allow for continuous restraints lasting up to 6 hours, and state that non-continuous restraints cannot last more than eight hours in a 24-hour period. But while the proposed language would appear to be an improvement in that regard, the language does not specify whether the 60-minute time limit applies to use of non-continuous restraints. In other words, the proposed language does not appear to prohibit multiple uses of restraints on an individual in one 24-hour period, with each use lasting 60 minutes.
Also, the proposed regulations would prohibit “chemical restraints,” which involve the use of anti-psychotic medications during behavioral emergencies. But anti-psychotic medications would still be permitted as part of an individual’s behavioral treatment.
NOTE: We do support a proposed change in the regulations that appears to introduce a specific prohibition against physical restraints that causes pressure on the lungs. Specifically prohibited under this section would be restraint in a prone position in which the individual is lying on their stomach.
Proposed changes in behavioral modification regulations
In the same set of regulations, DDS is proposing to scrap the term “behavior modification” and replace it with “positive behavior supports” (PBS). As noted above, these proposed changes raise similar concerns for us in that there seems to be less specificity in the proposed PBS system than in the current requirements, many of which would similarly be deleted.
The proposed regulations don’t even appear to clearly define PBS as much as make vague statements about the proposed system. The proposed language states, for instance, that:
PBS emphasizes the use of positive behavior approaches and recognizes that behavior is often an individual’s response or reaction to the environment and the need to communicate his or her preferences and wants to others, and, therefore, PBS focuses on environmental modifications and antecedents.
At the same time, the proposed regulations delete all references to “Level I and Level II behavioral interventions,” which are described in detail in the current regulations. These Level I and II categories appear to be replaced by “Universal and Targeted Supports,” which seem to have much more vague definitions.
The current regulations specify that Level I interventions include such things as positive reinforcement, corrective feedback, and “contingent exercise,” and “time outs” of 15 minutes or less with staff present in the room. The current regulations also state that Level II interventions include procedures that require some “physical enforcement,” and time outs of 15 minutes or less with staff present just outside the room.
In contrast, no actual examples are provided in the proposed regulations of Universal or Targeted supports. Targeted supports are defined as “practices that are implemented fairly rapidly on an ‘as needed’ basis for an individual or group of individuals at risk for developing problem behavior…” There is no indication what those practices might be.
The proposed regulations do appear to leave in place current language regarding Level III interventions, which is the most intensive level of behavior modification techniques under the current regulations. The current regulations state that Level III interventions include such things as contingent skin shock and time outs lasting more than 15 minutes. It is not clear, though, whether there is a relationship in the proposed regulations between Level III interventions and a new category called ”Intensive Supports” in the proposed regulations.
In fact, there appears to be no definition or examples of Intensive Supports in the proposed regulations. The proposed regulations state that Intensive Supports should be used ”when there are concerns that the health, safety, or emotional well-being of the individual, or others, is at risk, or the individual’s quality of life is seriously impeded due to challenging behavior.”
There also appears to be some confusion in the proposed regulations over the permissibility of skin shock and some other Level III interventions. In one section, the proposed language states that contingent skin shock and seclusion are prohibited practices that “are not be permitted under any circumstances.”
Yet, contingent skin shock is still listed under Level III interventions in the proposed regulations as being acceptable if it is determined that the risks as weighed against the benefits of the procedure would not pose an “unreasonable degree of physical or psychological harm.”
Also, while seclusion would be prohibited under the proposed regulations, the regulations would, as noted above, still permit time outs, which are defined as the placement of an individual alone in a room. Under the Level III intervention requirements, time outs of longer than 15 minutes are permitted if they don’t pose an unreasonable degree of physical or psychological harm.
Other deletions in the proposed changes to the behavioral modification regulations
Also included in the deleted language in this section is a requirement that behavior modification treatment plans are subject to Individual Support Plan (ISP) requirements. ISPs are written plans of supports and services for individuals that are subject to separate regulatory requirements.
The proposed behavioral modification regulations state that a “PBS Plan” would be needed for Targeted and Intensive Supports, but the proposed language does not indicate how such a plan would relate to an individual’s ISP.
Other proposed changes in the this section of the regulations include the apparent replacement of an Advisory Panel for behavior modification interventions with a “Leadership Team” for PBS interventions. At least some of the current requirements regarding qualifications of clinicians on the Advisory Panels appear to be lessened in the proposed language regarding the PBS Leadership Teams.
For instance, membership of the proposed Leadership Teams must include one senior level “qualified clinician.” A qualified clinician is defined in the proposed regulations as holding a master’s degree in psychology or another “relevant discipline” and having at least 5 years of clinical background in developmental disabilities.
Under the current regulations, the behavioral modification Advisory Panels must have at least five members, “a majority of whom shall possess doctoral level degrees in psychology, with significant training and experience in applied behavior analysis and behavioral treatment” (my emphasis).
Proposed change to privacy rights of persons with developmental disabilities
Finally, we strongly oppose a proposed change a separate section of the regulations regarding the privacy rights of persons with developmental disabilities.
Current language in this section requires that “assistance (be provided) by same gender staff for hygiene and medication administration when the partial or complete disrobing of the individual is required.” DDS is proposing to add the phrase “to the extent possible” to this language. We believe this change would have a potentially negative impact on the privacy and dignity of persons in the DDS system, and would increase the potential for abuse of those persons.
In our view, the proposed language would give providers virtually complete discretion to determine whether same-gender privacy protections were possible to provide; and we believe providers would base their decisions regarding the use of same-gender staff on their staffing needs rather than on the privacy and dignity of persons in their care.
We recognize that there may be appropriate and warranted preferences by individuals or their families or guardians for care by staff of a different gender, and we would welcome new language in the existing section of the regulation that would reflect those preferences.
In sum, we think DDS needs to go back to the drawing board with respect to this entire set of regulatory changes. At the very least, the Department should re-insert the specific protections it has deleted regarding restraints and behavioral supports.