DRAFT - HCBS Settings Rule: Right to Freedom from Restraint

Illinois Department of Human Services

Information Bulletin

Division of Developmental Disabilities

DD.23.00X DRAFT

Purpose:

This Information Bulletin (IB) outlines the requirement that providers will ensure all individuals receiving waiver funded Home and Community Based Services (HCBS) are free from restraint. This includes individuals receiving any services in individually controlled Community Integrated Living Arrangements (CILAs), provider owned/controlled CILAs, Child Group Homes (CGHs), Community Living Facilities (CLFs), Community Day Services (CDS), and through the Home-based Support Services (HBS) program.

Background:

The Centers for Medicare and Medicaid Services (CMS) has specific rights that must be afforded individuals receiving services funded by the HCBS waiver, regardless of the setting type. Among those rights is the expectation waiver participants are assured the right to be free from restraint.

Details of the HCBS Settings Rule requirements may be reviewed at 42 CFR §441.301(c)(4)(i-v) and include: 3d) Ensures an individual's right of freedom from restraint.

Policy:

Right to Freedom from Restraint

Restraint is defined as the direct restriction through mechanical or chemical means or personal physical force of the limbs, head, or body of an individual except as part of a medically prescribed procedure for the treatment of an existing physical disorder or the amelioration of a physical disability. Use of physician prescribed medication for a medical condition is not considered restraint unless it results in significant sedation which interferes with an individual's functioning. In this case, it would be considered a chemical restraint. The partial or total immobilization of an individual for the purpose of performing a medical or surgical procedure does not constitute restraint. Similarly, the use of a prn psychotropic medication that allows an individual to get a dental procedure or travel to a CDS provider, for instance, is not considered a chemical restraint. Momentary periods of physical restriction by direct person-to-person contact, without the aid of material or mechanical devices, accomplished with limited force, and that are designed to prevent an individual from completing an act that would result in potential physical harm to the individual or another do not constitute restraint, but must be documented in the individual's record.

Individuals have the right to be free from restraint unless there is a clearly identified and documented safety concern. In such cases, the safety concern must be based on individually assessed needs and documented in the Personal Plan and Implementation Strategy, as indicated in the Modification section of this bulletin.

All providers must have a policy affirmatively stating individuals shall be free from restraint and staff must be trained on the policy as well as the definition of restraint.

Implementation:

People have the right to be free from restraint in their homes and while receiving services outside their home. This includes all forms of restraint (mechanical, chemical or personal physical). The Independent Service Coordination (ISCs) agencies share the IDHS: Rights of Individuals Form (IL462-1201) (state.il.us) document annually and require a signature from the person and/or guardian. Providers also should share the document and review it with individuals whom they support as well as staff. This document should be shared with all individuals when they initiate services, whether residential or community day services, and annually thereafter. Guardians should also be provided a copy of the rights document. Providers are welcome to develop and share additional information with individuals as well.

Providers must train all staff on what a restraint is and on the Settings Rule requirement that individuals receiving waiver services have the right to be free from restraint.

Complaints

If an individual, guardian or concerned person does not feel a person is receiving services compliant with the HCBS Settings Rule, they can complain to the provider or to the ISC. They can also go through the formal HCBS Settings complaint process by using the web form: IDHS: DHS DD Services Complaints (state.il.us), email: DHS.HCBScomplaints@illinois.gov or phone number: (877) 657-0005.

Effective Date:

This Information Bulletin is effective upon final posting.