Colorado § 26-20-103 - Basis for use of restraint or seclusion.

§ 26-20-103. Basis for use of restraint or seclusion.

(1) Subject to the provisions of this article, an agency may only use restraint or seclusion on an individual:

(a) In cases of emergency, as defined in section 26-20-102 (3); and

(b) (I) After the failure of less restrictive alternatives; or

(II) After a determination that such alternatives would be inappropriate or ineffective under the circumstances.

(1.5) Restraint and seclusion must never be used:

(a) As a punishment or disciplinary sanction;

(b) As part of a treatment plan or behavior modification plan;

(c) For the purpose of retaliation by staff; or

(d) For the purpose of protection, unless:

(I) The restraint or seclusion is ordered by the court; or

(II) In an emergency, as provided for in subsection (1) of this section.

(2) An agency that uses restraint or seclusion pursuant to the provisions of subsection (1) of this section shall use such restraint or seclusion:

(a) Only for the purpose of preventing the continuation or renewal of an emergency;

(b) Only for the period of time necessary to accomplish its purpose; and

(c) In the case of physical restraint, only if no more force than is necessary to limit the individual's freedom of movement is used.

(3) In addition to the circumstances described in subsection (1) of this section, a facility, as defined in section 27-65-102, that is designated by the commissioner of the behavioral health administration in the state department to provide treatment pursuant to section 27-65-106, 27-65-108, 27-65-108.5, 27-65-109, or 27-65-110 to an individual with a mental health disorder, as defined in section 27-65-102, may use seclusion to restrain an individual with a mental health disorder when the seclusion is necessary to eliminate a continuous and serious disruption of the treatment environment.

(4) (a) The general assembly recognizes that skilled nursing and nursing care facilities that participate in federal medicaid programs are subject to federal statutes and regulations concerning the use of restraint in such facilities that afford protections from restraint in a manner consistent with the purposes and policies set forth in this article.

(b) If the use of restraint or seclusion in skilled nursing and nursing care facilities licensed under state law is in accordance with the federal statutes and regulations governing the medicare program set forth in 42 U.S.C. sec. 1395i-3(c) and 42 CFR part 483, subpart B and the medicaid program set forth in 42 U.S.C. sec. 1396r(c) and 42 CFR part 483, subpart B and with the rules of the department of public health and environment relating to the licensing of these facilities, there is a conclusive presumption that use of restraint or seclusion is in accordance with the provisions of this article.

(5) (a) The general assembly recognizes that article 10.5 of title 27, C.R.S., and article 10 of title 25.5, C.R.S., and the rules promulgated pursuant to the authorities set forth in those articles, address the use of restraint on an individual with a developmental disability.

(b) If any provision of this article concerning the use of restraint or seclusion conflicts with any provision concerning the use of restraint or seclusion stated in article 10.5 of title 27, C.R.S., article 10 of title 25.5, C.R.S., or any rule adopted pursuant thereto, the provision of article 10.5 of title 27, C.R.S., article 10 of title 25.5, C.R.S., or the rule adopted pursuant thereto prevails.

(6) The provisions of this article do not apply to any agency engaged in transporting an individual from one facility or location to another facility or location when it is within the scope of that agency's powers and authority to effect such transportation.

Source: L. 99: Entire article added, p. 379, § 1, effective April 22. L. 2006: (3) amended, p. 1389, § 20, effective August 7. L. 2010: (3) amended, (SB 10-175), ch. 188, p. 805, § 80, effective April 29. L. 2016: Entire section amended, (HB 16-1328), ch. 345, p. 1401, § 3, effective June 10. L. 2017: (3) amended, (SB 17-242), ch. 263, p. 1334, § 224, effective May 25. L. 2022: (3) amended, (HB 22-1278), ch. 222, p. 1519, § 85, effective July 1; (3) amended, (HB 22-1278), ch. 222, p. 1601, § 250 effective August 10; (3) amended, (HB 22-1256), ch. 451, p. 3239, § 54, effective August 10. L. 2023: (3) amended, (HB 23-1138), ch. 423, p. 2489, § 12, effective July 1, 2024.

Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.

ANNOTATION

Law reviews. For article, "Colorado School Discipline Law: Gaps and Goals", see 97 Denv. L. Rev. 347 (2020).

This act does not confer a private right of action on individuals it seeks to protect. A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d 1226 (D. Colo. 2011).