Wisconsin Legislature: DCF 52.415(5)(h)

1. Activities that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities that are typical for children of the same age or age group.

2. Activities that are suitable based on this resident’s cognitive, emotional, physical, and behavioral capacities.

Note: The reasonable and prudent parent standard does not apply to a child receiving respite care services.

(4) Decision-making factors. When applying the reasonable and prudent parent standard to a decision regarding a resident’s participation in an extracurricular, enrichment, cultural, or social activity, an RPPS decision maker shall consider all of the following:

(a) Child-specific factors, including all of the following:

1. The resident’s treatment plan.

2. The resident’s wishes, as gathered by engaging the resident in an age-appropriate discussion about participation in the activity.

3. The age, maturity, and development of the resident.

4. Whether participating in the activity is in the best interest of the resident.

5. The resident’s behavioral history.

6. Court orders and other legal considerations affecting the resident, including the prohibitions in sub. (5).

7. Cultural, religious, and tribal values of the resident and the resident’s family. If the resident and the resident’s family have different cultural, religious, or tribal values, then the placing agency, or the department if the department is the resident’s guardian, is ultimately responsible for decisions concerning the resident’s care.

(b) Activity-specific factors, including all of the following:

1. Potential risk factors of the situation, including whether the resident has the necessary training and safety equipment to safely participate in the activity under consideration.

2. How the activity will help the resident grow.

3. Whether participating in the activity will provide experiences that are similar to the experiences of other residents of the same age, maturity, or development.

4. Other information regarding the parent’s or guardian’s wishes and values, as obtained during the development and review of the resident’s treatment plan under s. DCF 52.22 (1) and (3) and other discussions with the resident’s parent or guardian.

(c) Any other concerns regarding the safety of the resident, other residents in the residential care center, or the community.

(d) Information on the forms required under ch. DCF 37.

Note: The forms required under ch. DCF 37 are DCF-F-872A-E, Information for Out-of-Home Care Providers, Part A and DCF-F-872B-E, Information for Out-of-Home Care Providers, Part B. Both forms are available in the forms section of the department website at http://dcf.wisconsin.gov or by writing the Division of Safety and Permanence, P.O. Box 8916, Madison, WI 53708-8916.

(5) Prohibitions. An RPPS decision maker may not do any of the following:

(a) Permit a resident to participate in an activity that would violate a court order or any federal or state statute, rule, or regulation.

(b) Make a decision that conflicts with the resident’s permanency plan or family interaction plan.

(d) Authorize the resident’s enlistment in the U.S. armed forces.

(e) Authorize medical, psychiatric, or surgical treatment for the resident beyond the terms of the consent for medical services authorized by the resident’s parent or guardian.

(f) Represent the resident in a legal action or make a decision of substantial legal significance.

(g) Determine which school the resident attends or make a decision for the resident regarding an educational right or requirement that is provided in federal or state law.

Note: For example, only a parent or guardian can make decisions about a resident’s individualized educational program under s. 115.787, Stats.

(h) Require or prohibit a resident’s participation in an age or developmentally appropriate activity solely for convenience or a personal reason not applicable to the decision-making factors in sub. (4).

History: EmR1633: emerg. cr., eff. 11-18-16: CR 16-051: cr. Register July 2017 No. 739, eff. 8-1-17.

DCF 52.42 Behavior management and control.

(1) Definitions. In this section:

(a) “Behavior management and control” means techniques, measures, interventions and procedures applied in a systematic fashion to prevent or interrupt a resident’s behavior which threatens harm to the resident or others or to property and which promote positive behavioral or functional change fostering resident self-control.

(b) “Informed consent document” means a document signed by a resident’s parent or guardian and legal custodian or under a court order or under another lawful authority which gives written informed consent for use of a locked unit for a resident based on the following:

1. Stated reasons why the intervention is necessary and why less restrictive alternatives are ineffective or inappropriate.

2. The behaviors needing modification.

3. The behavior outcomes desired.

4. The amount of time in each day and length of time in days or months the resident is expected to remain in the locked unit.

5. The time period for which the informed consent is effective.

6. The right to withdraw informed consent at any time verbally or in writing and possible consequences for the center and resident if consent is withdrawn.

(c) “Locked unit” means a ward or wing designated as a protective environment in which treatment and services are provided and which is secured by means of a key lock in a manner that prevents residents from leaving the unit at will. A facility locked for purposes of external security is not a locked unit provided that residents may exit at will.

(d) “Emergency safety intervention” means that a staff member physically intervenes with a resident when the resident’s behavior presents an imminent danger of harm to self or others and physical restraint or physically enforced separation is necessary to contain the risk and keep the resident and others safe.

(e) “Physically enforced separation” means that a resident is temporarily physically removed to a time-out room or area including, where applicable, a locked unit. “Physically enforced separation” does not include sending a resident on the resident’s own volition to the resident’s room or another area for a cooling off period as part of a de-escalation technique.

(f) “Physical hold restraint” means that a resident is temporarily physically restrained by a staff member.

(g) “Time-out room” means a designated room used for temporarily holding a resident who is in physically enforced separation from other residents.

(2) Monitor and review responsibility.

(a) A center shall assign to a professional staff member the responsibility to monitor and review, on an ongoing basis, the use of all center behavior management measures identified under par. (b) for appropriateness and consistency.

(b) Monitoring and review shall cover violation of house rules and their resulting consequences, the use of physical hold restraint and physically enforced separation in emergency safety intervention, the use of a locked unit when used to facilitate a resident’s treatment plan under sub. (7) (a) 3., and all related center policies and procedures.

(3) Conduct of residents. A center shall have written policies and procedures covering the conduct expected of residents. The policies and procedures shall do all of the following:

(a) Promote the growth, development and independence of residents.

(b) Address the extent to which a resident’s choice will be accommodated in daily decision making. There shall be an emphasis on self-determination and self-management.

(c) Specify center behavior management techniques and approaches available to change, eliminate or modify the behaviors or conditions identified in the center’s program statement and operating plan required under s. DCF 52.41 (1).

(d) Specify criteria for levels of supervision of activities, including off-grounds activities. These criteria shall be directed at protecting the safety and security of residents, center staff, visitors and the community.

(e) Provide for making a record of a resident’s off-grounds activities. The record shall include where the resident will be, duration of the visit, the name, address and phone number of the person responsible for the resident and expected time of the resident’s return.

(f) Specify house rules for the residents. The house rules shall include all of the following:

1. A general description of acceptable and unacceptable conduct.

2. Curfew requirements.

3. A resident’s individual freedoms when the resident is involved in recreational or school activities away from the center.

4. Consequences for a resident who violates a house rule.

Note: There is a difference between a patient right and a privilege. Deprivation of a privilege such as watching television, playing video games, going to the movies or involvement in some other recreational activity may be used as a disciplinary measure.

(g) Provide for distribution of the house rules to all staff and to all residents and their parents or guardians.

(4) Prohibited measures. Center staff may not employ any cruel or humiliating measure such as any of the following:

(a) Physically hitting or harming a resident.

(b) Requiring physical exercise such as running laps or doing push-ups or other activities causing physical discomfort such as squatting or bending, or requiring a resident to repeat physical movements or assigning the resident unduly strenuous physical work.

(d) Denying shelter, clothing, bedding, a meal, or a menu item, center program services, emotional support, sleep or entry to the center.

(e) Use of a chemical or physical restraint or physically enforced separation or a time-out room as punishment.

(f) Authorizing or directing another resident to employ behavior management techniques on a resident.

(g) Penalizing a group for an identified group member’s misbehavior.

(5) Emergency safety intervention.

(a) A center staff member may not use any type of physical restraint or physically enforced separation on a resident unless the resident’s behavior presents an imminent danger of harm to self or others and physical restraint is necessary to contain the risk and keep the resident and others safe.

(ae) A center staff member shall attempt other feasible alternatives to de-escalate a child and situation before using physical restraint or physically enforced separation.

(am) A center staff member may not use physical restraint or physically enforced separation as disciplinary action, for the convenience of center staff, or for therapeutic purposes.

(as) If physical restraint is necessary under par. (a), a center staff member may only use the physical restraint in the following manner:

1. With the least amount of force necessary and in the least restrictive manner to manage the imminent danger of harm to self or others.

2. That lasts only for the duration of time that there is an imminent danger of harm to self or others.

3. That does not include any of the following:

a. Any maneuver or technique that does not give adequate attention and care to protection of the resident’s head.

b. Any maneuver that places pressure or weight on the resident’s chest, lungs, sternum, diaphragm, back, or abdomen causing chest compression.

c. Any maneuver that places pressure, weight, or leverage on the neck or throat, on any artery, or on the back of the resident’s head or neck, or that otherwise obstructs or restricts the circulation or blood or obstructs an airway, such as straddling or sitting on the resident’s torso.

d. Any type of choke hold.

e. Any technique that uses pain inducement to obtain compliance or control, including punching, hitting, hyperextension of joints, or extended use of pressure points for pain compliance.

f. Any technique that involves pushing on or into a resident’s mouth, nose, or eyes, or covering the resident’s face or body with anything, including soft objects, such as pillows, washcloths, blankets, and bedding.

4. Notwithstanding subd. 3. f., if a resident is biting himself or herself or other persons, a center staff member may use a finger in a vibrating motion to stimulate the resident’s upper lip and cause the resident’s mouth to open and may lean into the bite with the least amount of force necessary to open the resident’s jaw.

(b) Use of physically enforced separation shall meet the following additional conditions:

1. The staff member using physically enforced separation of a resident shall review need for continued use every 10 minutes while the resident is in physically enforced separation and shall log the time of each review and the emotional status of the resident.

2. Except as otherwise provided for a locked unit under sub. (7) (a) 2. b., initial use of physically enforced separation may not extend for more than one hour without authorization from the center director or a professional staff person designated by the center director.

3. Except as otherwise provided for a locked unit under sub. (7) (a) 2. b., if a resident is authorized under subd. 2. to be in physically enforced separation for more than one hour and the physically enforced separation lasts for more than 2 hours, or if the resident experiences multiple episodes in a day which prompt use of physically enforced separation for a cumulative period of more than 2 hours during the day, center staff shall consider the need to arrange another more appropriate placement for the resident.