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Senate Committee Reports Dodd Restraints Legislation As Part of SAMSHA Reauthorization
On Wednesday, July 28, 1999 the Senate Committee on Health, Education, Labor, and Pensions (HELP) favorably reported, by a vote of 17-1, S. 976, the "Youth Drug and Mental Health Services Act of 1999." The legislation reauthorizes the Substance Abuse and Mental Health Services Administration (SAMHSA). A subsequent NAMI e-news will summarize this legislation.
S. 976, as reported from the Senate HELP Committee, includes a modified version of Senator Christopher Dodd’s (D-CT) legislation (S. 750) to regulate the use of restraints and seclusion in federally financed health care treatment facilities.
The legislation would:
1. Require health care facilities which receive federally appropriated funds to protect and promote the rights of each resident, including the right to be free from physical and mental abuse, corporal punishment, and any physical or chemical restraints or involuntary seclusions imposed for the purposes of discipline or convenience.
The restriction of "appropriated funds" would mean that facilities financed under Medicare, for example, would not be covered by this legislation. Medicare is mostly financed through a payroll tax trust fund and premium arrangement and is in the legislative jurisdiction of another Senate committee (the Senate Committee on Finance). Medicare financed hospitals are subject to regulations announced in July by the Health Care Financing Administration (HCFA); refer to NAMI E-News Volume 00-4 of July 9 for details on this regulation. Past NAMI E-News are posted on the NAMI web site at http://www.nami.org/policy.htm/
2. Restrict the use of restraint to ensure the physical safety of the resident, staff member, or others. NAMI advocates that physical and mechanical restraint only be used for emergency safety situations.
3. Restricts the use of restraint only upon the written order of a physician or other licensed independent practitioner. NAMI advocates the state of Pennsylvania current state psychiatric hospital practice that restraints are only to be authorized by a physician after a face-to-face evaluation and on the hour.
4. Nothing in the legislation would prohibit facilities from using restraints for "medical immobilizations, adaptive support, or medical protections." These are clauses added to the legislation at the urging of the American Psychiatric Association. They are not defined in the legislation but will be described in the Senate committee report to accompany the legislation. Their intent is to allow restraint for post-surgery and intravenous feeding but only examination of the actual phrasing will determine whether these are legitimate, acute, medical supports or mechanisms for facilities to get around the emergency safety standard for the use of restraints.
5. Requires that any death which may reasonably be the result of the use of restraint or seclusion be reported to a state-based investigative entity, as determined by the Secretary of the Department of Health and Human Services, within seven days. NAMI advocates such reporting to include both deaths and serious injuries.
6. Requires facilities to ensure an adequate number of qualified staff to evaluate and treat patients, including appropriate training in the use of restraints and their alternatives.
Acceptance of the Dodd bill by the Senate HELP Committee is a significant step forward and would help reduce the inappropriate use of restraint. However, the legislation does not include all of the NAMI endorsed public policy objectives.
HOSPITALS DEFEATED IN THEIR ATTEMPT TO SUSPEND THE HCFA RULES
The American Hospital Association (AHA) and National Association of Psychiatric Health Systems (NAPHS) sought Friday, July 30 a temporary federal court order suspending the HCFA July 2 rules on restraints. The federal judge dismissed the motion agreeing with HCFA that lives are at stake and the rules are a necessary and appropriate means to prevent further death and serious injury resulting from restraints.
ACTION NEEDED: PLEASE SEND YOUR COMMENTS ON THE HCFA RULES
In NAMI E-News 00-4 of July 9, we described the Health Care Financing Administration (HCFA) rules governing the use of restraints in Medicaid and Medicare financed hospitals. Though the rules have weaknesses compared to the best practice standard of the Pennsylvania state psychiatric hospitals, they are a significant step forward. As demonstrated by the court motion attempt by the hospital associations, this regulation could be altered or overturned. It is vital that all NAMI members write HCFA supporting the need and overall objective of the rule. The major flaw in the rule is that any licensed mental health professional could authorize the use of restraints. There are over 600,000 of these individuals in the nation. NAMI argues that for an emergency safety intervention, only a physician, following a face-to-face evaluation and on the hour (the Pennsylvania practice), should be the national standard. NAMI is supportive of flexibility in implementing the regulation for facilities in rural areas and in medically underserved areas.
NAMI will be sharing in the next week recommended comments which are being developed by the Advocates Coalition on Appropriate Use of Restraints, which NAMI chairs. Among the coalition members are the National Mental Health Association, the Bazelon Center for Mental Health Law, the ARC, and the National Association of Protection and Advocacy Systems (NAPAS). Be sure to send comments to HCFA. The address is below with suggested comments. Again, suggested detailed comments will be sent through the E-News next week.
COMMENTS DUE TO HCFA BY AUGUST 31, 1999
Comments (an original and three copies) should be sent to the Health Care Financing Administration, Department of Health and Human Services, Attention: HCFA - 3018 - IFC - P. O. Box 7517, Baltimore, MD 21207-0517.
Information is available from Rachel Weinstein, R.N., HCFA - 410-786-6775.
SUGGESTED COMMENTS TO HCFA
1. Restraints and seclusion should only be authorized by physicians. Pending national legislation (S. 736, S. 750, and H.R. 1313) would require this.
2. Physicians should reauthorize restraints and seclusion on the hour, after a face-to-face examination.
3. Seclusion and restraint should not be used simultaneously.
4. Patients should be checked for physical health status and comfort every 15 minutes.
5. Hospitals should be required to have debriefing of both staff and patients following each incident of restraint and seclusion, and cited in the medical record.
6. HCFA should be encouraged to designate, in every state, a state-based entity which can actually investigate deaths and serious injuries related to restraints. Pending national legislation (S. 736, S. 750, and H.R. 1313) would require this.
7. Compliment HCFA for taking action in Medicare and Medicaid hospitals, reinforce the core of the regulation that restraints may only be used for emergency safety situations, and encourage HCFA to apply these standards to all other Medicaid funded facilities, particularly residential treatment centers for children.