SB812 SD2.DOC

SECTION 1. The department of health's position on behavior support is to ensure that behavior interventions are implemented appropriately to assist and support individuals receiving services and those providing support to them. This position:

(1) Emphasizes positive behavior supports that promote the growth, development, and independence of individuals; individual choice in daily decision-making; self-management; and individual responsibility for behaviors;

(2) Provides for working with persons with challenging behavior (with a focus on teaching replacement behaviors that serve as the function for what the individual is communicating rather than the suppression or elimination of undesirable behaviors), and specification of prohibited interventions; and

(3) Enables appropriate safeguards and oversight if aversive procedures (planned or crisis) are used, with planning for the eventual elimination of seclusion and restraints.

When an individual with intellectual or developmental disabilities is a danger to oneself or to others, restraints or seclusion may be recommended. Before and after such methods are administered, a behavior support review committee is convened to evaluate such cases and make recommendations.

The behavior support review committee membership may include a parent of an individual receiving service from the department of health's developmental disabilities division, a developmental disabilities division service provider who provides at least two services to participants, a community member with no direct involvement with the developmental disabilities division's waiver provider programs, a department of health facilitator with experience or training in best practices to support behaviors of individuals with developmental disabilities, a department of health case manager with experience in supporting participants with behavior concerns, and a person receiving services from the developmental disabilities division.

The purpose of this Act is to describe the behavior support review process and to provide behavior support review committee members with immunity from liability.

SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . behavior support review committee for persons with developmental or intellectual disabilities

§321- Definitions. Whenever used in this part, unless the context otherwise requires:

"Department" means the department of health.

"Developmental disability" shall be as defined in section 333F-1.

"Director" means the director of health or the director's designated representative.

"Intellectual disability" shall be as defined in section 333F-1.

"Person with developmental or intellectual disabilities" means a youth or an adult with a developmental or intellectual disability.

"Restraint" means:

(1) Manual or physical restraint by holding a person to restrict the person's freedom of movement;

(2) Application of a device specifically designed to safely restrain or assist in restraining; or

(3) Chemical restraint by using a psychotropic medication prescribed without the appropriate Diagnostic and Statistical Manual of Mental Disorders diagnosis or prescribed on an as needed basis;

provided that restraint does not include brief and minimally restrictive physical contact in order to calm or comfort the person, or holding a person's hand to safely escort the person from one area to another.

"Seclusion" means any involuntary confinement to a room or area where a person is physically prevented from leaving.

§321- Behavior support review. The department of health may convene a committee to conduct multidisciplinary and multiagency reviews of restraints or seclusion of persons with developmental or intellectual disabilities in order to ensure appropriate use and to reduce the risk of harm or death to persons with developmental or intellectual disabilities.

§321- Access to information. (a) Upon written request of the director, all providers of supports and state and county agencies shall disclose to the department and those individuals appointed by the director to participate in the behavior support review committee of a person with developmental or intellectual disabilities the circumstances of restraints or seclusion used or to be used for a person with developmental or intellectual disabilities to allow the department to conduct multidisciplinary reviews of restraints or seclusion used or to be used for persons with developmental or intellectual disabilities pursuant to section 321-31 and this part.

(b) To the extent that this section conflicts with other state confidentiality laws, this section shall prevail.

§321- Exception. Information regarding an ongoing civil or criminal investigation shall be disclosed at the discretion of the applicable state, county, or federal law enforcement agency.

§321- Use and review of information and records and activities pertaining to behavior support review of persons with developmental or intellectual disabilities. (a) Except as otherwise provided in this part, all information and records acquired by the department during its multidisciplinary, multiagency reviews of the restraint or seclusion of persons with developmental or intellectual disabilities pursuant to this part shall be kept confidential and may be disclosed only as necessary to carry out the purposes of this part.

(b) Information and statistical compilations of data from the multidisciplinary reviews of restraints or seclusion of persons with developmental or intellectual disabilities that do not contain any information that would permit the identification of any person shall be public record.

(c) No individual participating in the department's multidisciplinary review of the restraint or seclusion of a person with developmental or intellectual disabilities shall be questioned in any civil or criminal proceeding regarding information presented in, or opinions formed, as a result of meetings of the multidisciplinary review of restraints or seclusion. Nothing in this subsection shall be construed to prevent a person from testifying to information obtained independently of the department's multidisciplinary behavior support review, or that is public information, or where disclosure is required by law or court order.

(d) Information held by the department as a result of a multidisciplinary review of the restraint or seclusion of a person with developmental or intellectual disabilities conducted under this part shall not be subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding.

§321- Immunity from liability. All agencies and individuals participating in multidisciplinary reviews of the restraint or seclusion of persons with developmental or intellectual disabilities pursuant to this part shall be immune from civil or criminal liability for the use and review of information and records pertaining to behavior support review of persons with developmental or intellectual disabilities as required under this part. All agencies and individuals participating in multidisciplinary reviews or seclusions of persons with developmental or intellectual disabilities pursuant to this part shall be presumed to be acting in good faith and shall be immune from civil liability for taking or recommending actions as part of the behavior support review committee. The presumption of good faith may be rebutted upon a showing by preponderance of the evidence that the agency or individual relied upon information or opinion that it knew was false or misleading."

SECTION 3. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	812
TWENTY-EIGHTH LEGISLATURE, 2015		S.D. 2
STATE OF HAWAII