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Wells Fargo Bank Building
400 East Broadway
Suite 409
Bismarck, ND 58501-4071

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North Dakota Protection & Advocacy Project

Services: Policies: Programs And Services

H: Seclusion, Restraint and Death Investigations

All deaths and incidents of attempted suicide or serious injury of people in residential settings that are reported to or become known to the P&A will be viewed as evidence of potential abuse and neglect. Based on the statistical relationship between the use of seclusion and restraint and serious injury or death, P&A will focus investigative efforts on the use of incidents of seclusion and restraint. It is critical in protecting people in residential settings that all such incidents that are validated incidents of abuse or neglect are identified and appropriate action taken. Based on this model and the responsibility of P&A to protect individuals with disabilities from abuse and neglect, P&A will conduct probable cause determinations of all such incidents.

The P&A is authorized to have access to all records of any individual with a developmental disability, or a PAIR-eligible client who has died, within 24 hours of a request and without first seeking or obtaining the consent of any other person.

All deaths, serious injuries, and suicide attempts in Psychiatric Residential Treatment Facilities are to be reported directly to state P&A's.

P&A staff may receive information of the death or the seclusion or restraint of a person receiving services in a residential setting. Upon receiving such information, the following process will be initiated:

  1. P&A will conduct necessary follow up to determine if the reported death or seclusion/restraint did, in fact, occur.
  2. The same day that staff of the P&A confirms the validity of the reported death or seclusion/restraint in a residential facility, a Unit Director will be informed.
  3. The Unit Director will staff the case with the advocate to determine probable cause.
  4. If a determination of probable cause cannot be made with the available information the Unit Director or designee will send a written request to the provider for medical records regarding the death or the seclusion/restraint.
  5. Upon determination of probable cause, the investigation will be assigned to a staff person. The Executive Director and Director of Legal Services will be informed of the death and plan to investigate.
  6. If appropriate, records will be requested in writing from other regulatory agencies that may be responsible to investigate deaths or incidents of seclusion/restraint.
  7. If probable cause is not determined, the facts will be presented to the P&A legal team for review before a final decision is made.
  8. Within 5 working days of the determination of probable cause by P&A that an investigation is warranted, an investigation plan will be developed and implemented. This plan will be consistent with investigation procedures outlined in the Protective Services Procedural Manual.
  9. P&A may establish appropriate contracts for review and consultation regarding the findings of an investigation. These contracts will be developed to ensure that facts are reviewed by persons with appropriate expertise to make determinations of substantiated abuse and/or neglect. Specific contracts will be contingent on the review and approval of the Executive Director.
  10. The final report on all death investigations will be reviewed by the P&A legal team.

The DD and PAIMI acts allow, but do not require, P&A's to release medical records of a deceased individual to a parent, guardian, spouse, or adult child. This must be in compliance with state law regarding confidentiality. Even if the federal and state law authorize the release of records, if there was any indication from prior communication with the deceased individual or his/her legal decision maker that the individual did not want records released to a family member, P&A will not authorize the release of those records.

It is important to recognize the high cost in attorney time, the litigation expense and the "chilling effect" that law suits could have in a wrongful death damage action. Any decision regarding P&A involvement in a wrongful death damage action will be made by the legal team and consistent with the protocol for determining legal representation found in relevant P&A policy.

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