Mo. Code Regs. tit. 13 § 35-71.070

Current through Register Vol. 49, No. 20, October 15, 2024

Section 13 CSR 35-71.070 - Protection and Care of the Child

PURPOSE: This rule sets forth the provisions for protection of the child, including child abuse or neglect, or both, exploitation, confidentiality, discipline and control, physical restraint, fire safety/emergency preparedness procedures, transportation, work experience and allowances. Also, provision for the care of the child, including living arrangements, personal hygiene, clothing, food and nutrition, personal possessions, family identity, religious requirements, educational program, recreational and activity programs transitional living services, smoking policy, and prohibition of practices with negative impact on residents.

(1) Protecting the Child in Care. An agency shall submit an immediate oral report (within six (6) hours), to the division followed by a written report, within five (5) working days after the occurrence of an unusual incident, such as the death or serious injury of a child, alleged child abuse or neglect, loss of any electricity, gas, water, telephone, or any other conditions affecting the health and safety of children for a period of longer than twelve (12) hours or requires the removal of residents, or any emergency that requires summoning first responders.

(A) Protecting the Child in Care-Child Abuse or Neglect, or Both.

1. The agency shall require each staff person to read and sign a statement defining child abuse and neglect and outlining responsibilities to report all child abuse and neglect incidents as required by statute.

2. An agency shall have written procedures for any alleged incident of child abuse or neglect, or both, which shall include:

A. Reporting the alleged incident as required by the child abuse/neglect reporting law, sections 210.110-210.165, RSMo;

B. Conducting an internal investigation of the alleged incident; and

C. Providing a written report to the licensing unit of the agency's internal investigation of the alleged incident.

D. An internal investigation shall include, but not be limited to:

(I) Names of staff and residents involved;

(II) Date incident occurred;

(III) Date division notified;

(IV) A copy of the critical incident report including but not limited to: injury of a child during physical restraint; serious physical or sexual aggression by or toward the child; significant physical injuries requiring medical attention; allegations of sexual abuse; criminal conduct involving the child; elopement; attempted suicide; fire setting; child death; and information which must be reported to the child abuse and neglect hotline pursuant to section 210.115, RSMo;

(V) A summary of administrative interviews with staff and residents(s) to determine the situation;

(VI) Any action taken to protect the child(ren); and

(VII) Any immediate corrective action of any licensing violations or agency policy.

E. An internal investigation should be completed by an objective third party not involved in the incident, so as to avoid any potential for conflict of interest.

3. If the safety of the children is threatened, as determined by the executive director, no person who is alleged as a perpetrator in an incident of child abuse or neglect, or both, shall work directly with children until an investigation is complete.

4. If the investigation results in an affirmative finding consistent with current statutory standard of proof the agency shall submit a written report to the licensing unit, outlining corrective action taken by the agency. If the agency fails to take appropriate action to prevent future abuse or neglect, or both, the division may deny, suspend, or revoke the license.

5. The agency shall create and maintain a centralized log of all critical incidents.

(B) Exploitation of Children.

1. Exploitation of children shall be prohibited.

2. As used in these rules, exploitation of children shall include, but not be limited to:

A. The use of a child or his/her picture or name for solicitation for funds without the written consent of the child's parent(s), guardian or legal custodian;

B. The use of a child to advance an agency's religious beliefs; and

C. The placement of unreasonable demands for work upon a child.

(C) Confidentiality.

1. An agency shall have written procedures for the maintenance and security of clients' records. This shall include a staff review of the procedures for confidentiality and a signed and dated statement indicating that staff have reviewed the procedures. The agency shall secure records against loss, tampering, or unauthorized use by-

A. Protection of the confidentiality of records when in use and keeping them under lock when not in use;

B. Staff and professional consultants seeking access only to the records with which they are professionally involved;

C. Staff not disclosing or permitting the disclosure of any information concerning the child or his/her family, directly or indirectly, to any unauthorized person; and

D. Staff being informed of the requirement that they must observe the procedures for protecting confidentiality after termination of employment.

2. Records shall be made available to the division or its authorized and identified agents, either upon written or verbal request. This includes division staff who are involved in child abuse/neglect reporting/investigation.

3. All requests for access to a child's records shall be documented in the record providing the name of the individual making the request, the date, and the desired materials. If access was refused, the grounds for refusal shall be documented.

4. A consent for release form signed and dated by the parent(s), legal guardian, or legal custodian must be provided before a child's records are released or a child's photographs are displayed, or any video tape and/or audio recording of a child for the purpose of health, safety, welfare, enhanced supervision, and/or other therapeutic purpose pursuant to the child's case plan is released, to any person other than those specified in these rules. The consent must specify what information may be released, to whom, for what purpose, and for what period of time.

(D) Discipline and Control.

1. An agency shall have written policies regarding discipline, supervision, and behavior management, which shall be explained and made available to a child's parent(s), or guardian or legal custodian, or both, staff, and to the child. The procedures shall be within each child's ability to understand and achieve.

2. The policies shall identify the type of children served, describe the anticipated behavioral problems, set forth acceptable methods of dealing with the behaviors, and detail the required qualifications and training of staff. All discipline shall be consistent with the treatment/safety plan developed for the resident.

3. All discipline shall be reasonable and appropriate to the child's age and level of development. All discipline shall be limited to the least restrictive appropriate method and administered by appropriately trained staff.

4. Encouragement and praise of good behavior shall be used instead of focusing on unacceptable behavior.

5. The agency shall have written policies and procedures prohibiting discipline which may adversely affect a child's health or physical or psychological well-being. A copy shall be given to all residents, families, staff and placing agencies. The following forms of discipline shall not be used:

A. Cruel and unusual punishment;

B. Excessive or inappropriate work;

C. Denial of meals, daily needs, and the program provided by the individual service plan;

D. Verbal abuse, ridicule, or humiliation;

E. Permission for a child to discipline another child;

F. Chemical restraints;

G. Mechanical restraints;

H. Denial of planned visits, telephone calls, or mail contacts with family shall not be used as a consequence for negative behaviors;

I. The use of foods intended to produce an adverse reaction;

J. Physical or emotional abuse;

K. Confinement in any space not designed for isolation and observation;

L. Requirement that a child remain silent for long periods of time or other unreasonable verbal restrictions;

M. Corporal punishment including, but not limited to, slapping, hitting, spanking, paddling, shaking, belting, marching, standing rigidly in one (1) spot, use of excessive physical exercises such as running laps or doing push-ups or any method which harms or endangers the child;

N. Locked isolation for the purpose of discipline;

O. Withholding of an opportunity for a minimum of eight (8) hours of sleep in a twenty-four- (24-) hour period;

P. Withholding of shelter, clothing, essential personal needs, essential program services; or

Q. Withholding of meals, mail, allowances, or family visits.

(E) Physical Restraint.

1. All agencies using physical control techniques must have written policies defining the method of control utilizing a recognized physical restraint training program, approved by the division. The agency shall identify persons used in implementing these methods; and establish the training required for these persons. These policies shall address the use of crisis intervention, including techniques to be used prior to physical restraint and include:

A. The use of two (2) staff, one (1) of whom is fully qualified;

B. An immediate notice to the supervisor; and

C. A written report to the administrator.

2. For agencies permitting the use of physical restraint, the administrator and/or program director shall review its usage at least quarterly.

3. The agency shall maintain a centralized record when physical restraint is used, which shall include:

A. The name of the child, the date and time the child was physically restrained;

B. The circumstances that led to the placement of the child in a physical restraint and the de-escalation attempts used to try to prevent the use of physical restraint;

C. The name of the staff person who initiated the physical restraint, the staff per-son(s) who assisted with the physical restraint, and any other staff and/or residents who witnessed the physical restraint;

D. The amount of time the child remained in the physical restraint, any changes in the staff participation, and the time of and reasons for release;

E. Documented behavioral observations of the child at each five- (5-) minute interval;

F. Specific notation of any extension of any physical restraints lasting longer than five (5) minutes including reasons for the extension;

G. Documentation of results of debriefing that includes recommendations of staff and resident for avoiding a similar situation; and

H. Documentation of any medical care provided to the child.

4. Physical restraint shall include all efforts to minimize the possibility of injury to a child.

5. All instances of physical restraint shall be documented on incident reports and filed in the child's record.

6. Physical restraint may be used as a management method after all other verbal de-escalation measures have been exhausted, never to replace other more positive measures of control. Physical restraint methods shall be used only to end disturbances that threaten physical injury to the child, physical injury to others, or to take from a child a dangerous object which the child has threatened to use against him/herself or against others.

7. An agency shall not use mechanical restraint.

8. Strap-boards, strait-jackets, or homemade restraint devices such as tape shall not be used.

9. Within twenty-four (24) hours of each physical restraint incident, treatment staff shall debrief the incident with the resident.

10. For agencies permitting the use of physical restraint, the administrator and/or program director shall review its usage at least quarterly.

11. If the agency does not meet all the requirements for the use of physical restraint, the division shall give written notice of specific deficiencies and the agency shall not use physical restraint until corrections are made and approved by the division.

(F) Fire Safety-Emergency Evacuation Procedure.

1. Each operating site shall be inspected biennially and shall be in compliance with the requirements of the State Fire Marshal.

2. Written instructions for fire and other emergency evacuations shall be posted in a conspicuous place in each operating site. Children shall be instructed in evacuation procedures at the time of admission. An evacuation drill shall be held at least monthly, and a record of all drills shall be on file at each agency.

3. The agency shall train staff in fire prevention and to report fires and shall teach children fire safety.

4. The agency shall establish emergency preparedness policy, to include but not to be limited to:

A. Emergency contact information;

B. Evacuation procedures; and

C. Medication management during emergencies.

(G) Transportation.

1. General requirements.

A. The agency shall provide transportation as indicated by the individual needs of the children, for example, medical and dental appointments, educational or training programs, counseling, family therapy, and court proceedings. If the agency cannot, for any reason, transport a child to any required services, the agency shall work with the child's treatment team members, legal guardian, and/or legal custodian to make appropriate and timely arrangements.

B. The agency shall be responsible for the care, safety, and supervision of children on field trips or at any time children are transported away from the operating site.

2. Vehicle and vehicle operator.

A. Staff transporting children shall have a valid driver's license as required by Missouri law.

B. All vehicles used to transport children shall be licensed and operated in accordance with Missouri law.

C. Children shall not be transported in campers, trailers, or in the back of trucks.

3. Safety and supervision.

A. All children shall be seated in a permanent seat and restrained by seat belts or child restraint devices as required by Missouri law.

B. Staff/child ratios shall be maintained at any time the agency transports children away from the operating site.

C. Children shall be required to remain seated while the vehicle is in motion.

D. Doors shall be locked when the vehicle is moving.

E. Order shall be maintained when the vehicle is moving.

F. Children shall not be left unattended in a vehicle at any time.

G. Children shall enter and leave the vehicle from the curbside unless the vehicle is in a protected area or driveway.

H. Children shall be assisted, when necessary, while entering or leaving the vehicle.

I. Head counts shall be taken before leaving the operating site, after entering the vehicle, during a field trip, after taking the children to bathrooms, after returning to the vehicle and when back at the operating site.

J. When children leave the vehicle, the vehicle shall be inspected to ensure that no children are left on or under seats.

(H) Work Experience.

1. An agency shall provide the opportunity for work experiences for each child appropriate to the age, health, and abilities of the individual child.

2. Work experience shall not interfere with a child's time for school, study periods, play, sleep, community contacts, or visits with his/her family, and shall be designed to serve the child's interest.

3. If work experience is a part of the child's treatment plan, it shall be identified in the treatment plan. A schedule shall be maintained for all children who work paying jobs for review by licensing staff.

4. Children shall not be used as substitutes for staff.

5. An agency shall differentiate between chores children are expected to perform, specific work assignments made as a means of earning money, and jobs performed in or out of the operating site to gain vocational training.

6. Work training programs and employment of children shall be approved by the executive director or designated staff when the child is employed outside the operating site.

7. Children shall be given some choice in their chores and work experiences, and duties shall be changed periodically to provide the child a variety of experience.

8. An agency shall limit the length of time children spend on regular nonpaid chores to one (1) hour a day during the school year and not more than two (2) hours a day during the summer months for all children.

9. An agency shall comply with the applicable child labor laws, sections 294.011-294.140, RSMo. Children working paying jobs shall receive pay in accordance with community rates.

10. A complete record of a child's earnings and dispersals from this fund shall be maintained and made available upon request to the child, the parent(s), the guardian, or legal custodian and the licensing unit.

11. Children shall be provided proper supervision when working with, or in proximity to, power-driven machinery, upon scaffolding, in the operation of a motor vehicle, or in any other occupation which is dangerous to the life or health of a child.

(I) Allowances and Money.

1. If a child does not work and earn his/her own spending money, each child shall receive a regular allowance. The child shall be allowed to use discretion in spending some of the allowance for items other than basic needs.

2. Money belonging to a child being discharged shall be transferred to the child, the parent(s), or the agency authorized to act as custodian.

3. Documentation of all deposits and withdrawals should be maintained and available for review upon request. At the time of discharge from the agency, documentation shall be made part of the child's record.

(J) Critical Incident Report.

1. In the event that a critical incident occurs that includes, but is not limited to: injury of a child during physical restraint; serious physical or sexual aggression by or toward the child; significant physical injuries requiring medical attention; allegations of sexual abuse; criminal conduct involving the child; elopement; attempted suicide; fire setting; child death; and information which must be reported to the child abuse and neglect hotline pursuant to section 210.115, RSMo, a critical incident report is completed by the agency. When a child is not in Children's Division custody, the agency shall then verbally notify, within six (6) hours, the regional licensing consultant, the child's treatment team, case manager, parent, legal guardian, guardian ad litem, and legal custodian and provide them with a copy of the critical incident report within twenty-four (24) hours of the occurrence of the critical incident. In the event a child is in Children's Division custody, the agency contact, in addition to the regional licensing consultant, is the case manager. The agency contacts the regional licensing consultant and case manager within six (6) hours. The case manger then notifies the other pertinent team members. The agency then provides the regional licensing consultant and case manger with a copy of the critical incident report within twenty-four (24) hours of the occurrence of the critical incident.

(2) Care of the Child.

(A) Living Arrangements. Children shall be grouped by their age, level of development, and need for supervision.

(B) Personal Hygiene.

1. An agency shall provide each child with his/her own toiletry articles and with space for their storage.

2. An agency shall provide mirrors or unbreakable reflective surfaces in bathrooms at levels easily accessible to all children.

(C) Clothing.

1. An agency shall establish minimum clothing requirements for each child in care.

2. An agency shall assure that clothes are provided to each child. Clothes shall be individually selected and fitted, appropriate to the season and kept in a state of good repair and cleanliness. Each child's clothing shall be identified as his/her own.

3. An agency shall assure shoes are provided to each child which shall be kept in good repair.

4. When possible, children shall be permitted to participate in the selection and purchase of their own clothing.

5. Donated clothing shall be used only if it is in good condition.

6. Clothing belonging to and worn by a child while in residence shall be taken with him/her upon discharge.

(D) Food and Nutrition.

1. Nutritional requirements.

A. An agency shall provide nutritious, appetizing food which meets the daily nutritional requirements of the children in care.

B. Consideration shall be given when planning meals to the religious practices and cultural differences of the children.

C. An agency shall provide supplementary foods and modified diets for children with special dietary needs.

D. When a dietitian or nutritionist is not employed by an agency, consultation on menu planning shall be obtained as needed from a city, county, or state health agency or through a local resource.

E. Variations in the appetites of the children in care shall be recognized, and the children shall be encouraged, but not forced, to eat.

F. Children shall be encouraged to develop healthy eating habits.

G. All milk shall be pasteurized. Dry or powdered milk shall only be used in meal preparation and not utilized for drinking purposes.

2. Meal service.

A. An agency shall serve meals at recognized meal times, and at least three (3) times a day, unless children receive their noon meal at school.

B. Nutritious between-meal snacks shall be provided.

C. Staff and children who eat together shall be served the same food unless contraindicated for medical reasons.

(E) Personal Possessions. Each child shall be permitted to bring safe and appropriate personal possessions with him/her and to acquire belongings of his/her own while in residence. A written inventory log of the child's possessions at the time of admission and at the time of discharge shall be on file. The inventory log shall be updated during the stay, as needed.

(F) Family Identity and Relationships.

1. An agency shall develop written visitation policies.

2. An agency shall encourage and support contacts between a child and his/her family while the child is in care, unless the rights of the parent(s) to contact their child have been terminated or restricted by court order. The frequency of contact shall be determined by the child's parent(s), guardian, or legal custodian in consultation with agency staff. An agency shall enable the family to visit and remain involved in their child's care as well as actively participate in relationship building.

3. Privacy shall be provided for visits with family members, relatives, and friends, for telephone calls and for written communications unless otherwise indicated by the treatment plan.

4. Flexible visiting hours shall be provided for the parent(s) or legal guardian.

(G) Religious Requirements.

1. Prior to admission, an agency shall provide a written description of the agency's religious requirements and practices, which shall be made available to the parent(s), guardian, or legal custodian, and, when appropriate, to the child.

2. Upon admission, if the agency requires mandatory religious observance or mandatory church attendance, consent of the parent(s), or guardian or legal custodian, or both, shall be obtained and explained to the child upon admission.

3. Opportunity for religious experience shall be made available to each child within the religious preference of his/her family by treatment plan.

4. The child's parent(s), guardian, or legal custodian shall provide written authorization regarding any change in religious affiliation by the child while s/he is in care.

5. Children shall be permitted to attend religious activities and services in the community by treatment plan.

(H) Educational Program. The agency shall be responsible for ensuring compliance with Missouri statutes pertaining to the children's education.

1. An agency shall not admit a child unless an educational program appropriate to the child's needs can be made available and provided.

2. The educational progress of a child shall be continually evaluated and the progress shall be included in the child's three- (3-) month treatment plan review according to 13 CSR-71.060(2)(B)1.A.

3. If the educational resources of the local community do not meet the needs of the children in care or if a child is excluded from school for behavioral or other reasons, the agency shall work closely with the local school district to provide an appropriate education plan pursuant to section 210.1050, RSMo.

4. An agency shall maintain contact and cooperation with involved school systems to provide a coordinated approach to meeting the educational needs of each child.

5. An agency shall provide appropriate space, adequate lighting, supervision for quiet study after school hours, and access to reference materials and school supplies.

6. Children shall be permitted and encouraged to participate in extracurricular activities such as sports, art and music, to the extent of their interests, abilities, and talents.

7. At the time of discharge, a copy of the child's educational records/file shall follow the child.

8. Agency employees providing educational services shall meet the certification criteria established by the Department of Elementary and Secondary Education.

(I) Recreational and Activity Programs/Leisure Time.

1. An agency shall involve children in a variety of age and developmentally appropriate on site and community activities individually, and in groups, which meet the range of needs specified in their respective treatment plan.

2. An agency shall maintain a written plan and schedule for a recreational program of both general and physically challenging activities which promote health and physical development in accordance with the individual interests, ages, and needs of the children. This program shall include procedures by which a child's involvement and progress shall be regularly reported.

3. An agency shall submit a list of general and physically challenging activities which they plan to use in their recreational program which includes a description of the activity, the purposes, and goals. This list shall be submitted to the division at initial licensure or license renewal.

4. An agency shall provide indoor and outdoor recreational facilities for quiet and active play.

5. Each child shall have some time to be alone if s/he wishes, and places where the child reasonably will be undisturbed, while under the overall supervision of staff.

6. Recreational and leisure-time activities shall be included as a planned part of family interventions, provided these activities do not interfere with the safety or security of the child, family, or operating site.

7. Any water activity, including but not limited to, swimming, wading, fishing, or boating shall be permitted only when-

A. An adult with a current lifeguard certificate, including cardio pulmonary resuscitation training is present; except

B. An adult who has completed a course in basic water safety, which includes infant/child cardio pulmonary resuscitation training, may supervise children when a swimming pool containing a depth of less than twenty-four inches (24") of water is being used; and

C. Other water activities such as fishing or boating shall require staff supervision at all times. The agency shall ensure the safety and supervision of the children and utilize appropriate equipment.

8. Agencies with on- or off-ground activity programs, which by their nature significantly alter the usual level of resident supervision, shall clearly describe each activity in their recreational plan. These include activities which could be described as physically or otherwise challenging, or those which utilize animals, or those which might involve a level of risk to children. The plan for each activity shall outline the qualifications of staff members involved, special equipment, supervision rules that will be used, and any changes in the usual behavioral rules for residents and staff required by the activity. At a minimum, the plan specifically shall address each of the following:

A. Special qualifications of staff.

(I) The agency will confirm in writing in each staff's personnel file that the staff has specialized training, or extensive life experience in the recreational activity that qualify staff to supervise the activity.

(II) If the agency or specific staff is certified in a recognized activity area such as ROPES, Project Adventure, or Red Cross water safety instructor (WSI), these standards will be evidence of compliance;

B. Special safety equipment.

(I) All sports and outdoor equipment used in the program is selected on the basis of safety factors and is regularly checked or tested to insure it is up to the agency's standards, which comply at a minimum with applicable national standards for the equipment in use.

(II) First aid and emergency response kits and other emergency supplies and medications needed by participants are under the control of the designated group leader at all times.

(III) The agency provides for adequate shelter from the elements, safe and healthful food and water, appropriate clothing, and appropriate equipment required for the activities and the environment;

C. Special rules for staff and resident behavior.

(I) The agency has a written plan for coverage and supervision when groups are physically distant from the main location which includes delegation of authority.

(II) Personnel designated responsible for the group must have had first aid or first responder training and at least one (1) staff person with the group shall be certified to provide cardio pulmonary resuscitation; and

D. Risk management.

(I) The agency shall have a written plan which describes unsafe conditions which would restrict or rule out this activity. Safety rules for staff and residents, appropriate clothing and equipment required, and necessary training for staff and residents prior to undertaking the activity shall be specified in the plan. Changes to this plan shall be submitted to the division.

(II) The agency shall include in its plan the level of administrative approval required to authorize the undertaking of any such activity.

(J) Transitional Living Services. Agencies serving an adolescent population shall develop and implement a transitional living services component which shall begin at the time of the initial assessment and shall be modified in accordance with the youth's changing needs as new skills are developed. This component should compliment any other life skills program/training in which the youth is involved. Group and individual counseling should include coping and adjustment issues relating to the youth's transition from residential treatment. The program shall include development of a planned program in which, at a minimum, residents may acquire skills and practice in the following areas developing:

1. Skills for independence;

2. Skills and knowledge of financial management;

3. Skills necessary for locating, obtaining, and maintaining a residence;

4. The basic skills for negotiating successfully with community institutions and systems;

5. A basic knowledge in substance abuse prevention, human sexuality, physical and sexual abuse, Human Immunodeficiency Virus prevention and other sexually transmitted diseases;

6. Daily life skills;

7. Skills for job preparation, maintenance, and retention; and

8. Skills for developing positive peer relationships and a support system.

(K) Smoking Policy. Agencies shall develop a smoking policy for staff and residents that is consistent with Chapter 407, RSMo.

(L) Prohibition of Practices with Negative Impact on Residents. Agencies shall develop policy that prohibits activities and media (music, movies, video games, television) that negatively impact children.

13 CSR 35-71.070

AUTHORITY: sections 210.481, 210.486, and 210.506, RSMo 2000.* This rule originally filed as 13 CSR 40-71.070. Original rule filed Nov. 9, 1978, effective Feb. 11 , 1979. Emergency rescission and emergency rule filed Nov. 1, 1993, effective Nov. 12, 1993, expired March 11 , 1994. Emergency rescission and emergency rule filed March 2, 1994, effective March 12, 1994, expired July 9, 1994. Rescinded and readopted: Filed Nov. 1, 1993, effective June 6, 1994. Moved to 13 CSR 35-71.070, effective Oct. 30, 2008. Amended: Filed Dec. 16, 2013, effective June 30, 2014

Amended by Missouri Register September 15, 2023/Volume 48, Number 18, effective 8/28/2023, exp. 2/23/2024 (Emergency)

*Original authority: 210.481, RSMo (1982), amended 1985 and 210.486 and 210.506, RSMo (1982), amended 1993.