| Joint Commission Seeks Comments On Its Proposed Restraint And Seclusion Standards |
HOSPITALS USE JCAHO TO UNDERMINE HCFA REGULATIONS; JCAHO WOULD ALLOW ANYONE RECOGNIZED BY THE HOSPITAL AS "TRAINED AND QUALIFIED" TO PLACE PEOPLE IN RESTRAINTS AND SECLUSION
NOVEMBER 22 IS THE DEADLINE FOR RECEIPT OF COMMENTS
On October 19 the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) shared with several thousand addressees its proposed new standards on the use of restraints and seclusion. November 22 is the deadline for receipt of comments from the field. JCAHO will finalize the standards at a December meeting.
JCAHO is the legal agent of the national government and the Health Care Financing Administration (HCFA), which administers the Medicare and Medicaid programs. The legal status is codified in law and known as "deemed status." Under this statutory provision, inserted into law through the lobbying of the hospital industry and JCAHO, any health care provider accredited by JCAHO is "deemed" to meet all Medicare and Medicaid health care quality requirements. The restraints and seclusion (R/S) standards will be used by JCAHO during periodic inspections of facilities to determine quality and safety of care. Interestingly, the hospital industry, which has seven seats on JCAHO's governing board, is using this standard setting process to undermine and contradict the HCFA final regulations on R/S published July 2, 1999. NAMI will continue to monitor the manipulation of JCAHO to undermine the national government's interim final regulations and HCFA's response to this attempt.
As the nation's hospitals will be supporting the rule in mass, it is important that the nation's consumers and family members likewise express their concern, in mass, to JCAHO.
· NAMI's Concerns
There are many, many concerns with the JCAHO proposed standards. This introduction will highlight one of the most serious concerns. Prior to HCFA's interim final rule (refer to NAMI E-News #00-04 of July 9, 1999), practically anyone (mental health technicians, orderlies, and aides) working in a health care facility could authorize and place an individual in restraint and seclusion (R/S). NAMI and other national advocacy organizations advocated replication of the state of Pennsylvania nine state psychiatric hospital current practice - that a physician order R/S after a face-to-face evaluation of the patient and that this face-to-face evaluation be repeated on the hour. New York's 22 state psychiatric hospitals use a similar requirement, except that the face-to-face evaluation is on the half-hour. HCFA's final regulations (see link at end of E-News) require that a physician or licensed independent practitioner recognized by the state conduct face-to-face evaluations and order R/S. Many hospitals and psychiatrists argued that this HCFA requirement is unrealistic. NAMI and other national advocacy organizations did comment to HCFA that waivers and exceptions to the rule should be allowed for facilities in rural and medically underserved areas.
Now the October 19 JCAHO standards propose that "any persons who are NOT licensed independent practitioners" may initiate and place persons in R/S as long as the facility determines that the person is "qualified or trained." JCAHO proposes that there be no national professional competency standards to place persons in R/S and that anyone the facility recognizes as "qualified and trained" have the legal authority to place people in R/S against their will. Thus, mental health technicians, orderlies, and aides could continue to be the deciders and implementers of when R/S are used. The facility, the same facility where deaths and serious injuries are occurring because of R/S, will determine who gets placed in R/S and for how long. The October 1998 Hartford Courant series which brought national attention to this issue, documented that many of the deaths and serious injuries occur in JCAHO accredited facilities.
Likewise, there is no prohibition on the use of simultaneous use of R/S, as there is in the HCFA interim final rules. And, although there are timelimits for placing persons in R/S, which are longer than the HCFA rules, if R/S is terminated just prior to the timelimit expiring, the original order can be reapplied. So, even though JCAHO, like HCFA, would prohibit standing orders to apply R/S, this gimmick allowing reuse of the original order is, in effect, a standing order. This would allow situations to occur as happened to a Virginia woman in a state institution who died after spending approximately 300 hours in restraints during the last few weeks of her life. The JCAHO proposed standards are full of these gimmicks to allow continued use of R/S by non-professional persons determined "qualified and trained" by the facility.
COMMENTING TO JCAHO WON'T BE EASY, BUT IS ABSOLUTELY ESSENTIAL
RESPONSES ACCEPTED ONLINE OR BY MAIL
All the nation's hospitals and national associations such as NAMI received the October 19 mailing which contains a 21 page questionnaire (known as a "field evaluation response form") which contains 60 precise questions. JCAHO expects all commenters to use this return form.
To receive copies of this 21 page, 60 question form, you can either download it from the JCAHO web site and respond online, or call/e-mail designated JCAHO staff. The JCAHO web site is www.jcaho.org click on "What's New" at the top of the page. Or call or e-mail Shelby Dunster at 630-792-5893 (firstname.lastname@example.org) or Amy Wilson at 630-792-5876 (email@example.com). You will also need to obtain the two page October 19 cover letter and 16 page standards. This memo highlights some of the major issues.
If obtaining and filling out this 21 page, 60 question form, is too difficult, please be sure to mail your response to Field Review Response, Joint Commission on Accreditation of Healthcare Organizations, Department of Standards, One Renaissance Boulevard, Oakbrook Terrace, IL 60181. These comments must be postmarked by November 22, 1999.
Please also send copies of your comments to NAMI, either by mail, to Kim Encarnation, NAMI, Colonial Place Three, 2107 Wilson Blvd., Suite 300, Arlington, VA 22201-3042, or by e-mail to firstname.lastname@example.org. Ms. Encarnation will be out of the office November 19-26. NAMI will communicate with JCAHO on December 3, not reviewing the content of the comments received, but listing the comments received so that all comments of NAMI members are appropriately logged into JCAHO. All the nation's hospitals will be sending comments to JCAHO supporting the proposed standards. It is important that NAMI and other advocacy groups provide JCAHO with a list documenting the quantity of comments received by consumers, family members, and advocates.
Consumers and family members can have an impact. The October 19 JCAHO letter observes: "Taking a lead in response to this serious situation, the National Alliance for the Mentally Ill urged the Joint Commission and other key parties - including the Congress and the Health Care Financing Administration (HCFA) - to address the identified problems." So, we got JCAHO's attention. But gimmicks can undermine the effort to eliminate the inappropriate use of R/S.
JCAHO VIP ISSUES FOR WHICH COMMENTS ARE ENCOURAGED
There are five particular items which JCAHO is seeking comments. These are pages 9-13 of the proposed standards and specifically TX 3.4 and 3.4.1 (who initiates R/S), TX 3.4.3. (verbal orders and notifications to licensed independent practitioners), TX 3.4.4 (face-to-face assessments), TX 3.5 (time limits) and TX 3.6 (monitoring requirements). This NAMI memo also highlights two other areas: Introduction (applicability of R/S) and TX 3.8 (discontinuation of R/S). This e-news will highlight these issues.
DID YOU KNOW THAT PSYCH HOSPITALS DO NOT USE THE JCAHO PSYCH STANDARDS?
JCAHO states its purpose to apply these proposed R/S standards to both the Comprehensive Accreditation Manual for Hospitals (CAMH) and Comprehensive Accreditation Manual for Behavioral Health Care (CAMBHC). This is very significant because even though JCAHO took four years to develop the CAMBHC, no psychiatric hospital in America is surveyed by JCAHO using the CAMBHC. Psych hospitals are surveyed using the most general and less detailed CAMH. Earlier this year NAMI wrote JCAHO challenging this dynamic. JCAHO claims they have detailed and specialized CAMBHC standards but then allows all psych hospitals in America to use the more generalized CAMH. At least the October 19 letter claims that whatever the R/S standards are, they will be incorporated into both the CAMH and the CAMBHC.
1. Initiation of R/S - TX 3.4, and 3.4.1 pages 9-10 of the standards, return questions 27-34
R/S would be limited to emergencies - imminent risk of safety. This is good. However, R/S may be used when other "interventions would not be effective." And who determines when such alternatives are not effective? Non-professionals who are "qualified and trained" by the facility make this determination. NAMI advocates clinically trained and competent professionals make these determinations. Rather than attempting an intervention which then fails, JCAHO merely requires a judgement that other interventions would not be effective.
JCAHO data analyzed by NAMI founding member and former JCAHO Behavioral Accreditation PTAC member Max Schneier, J.D., found that most deaths associated with R/S occur during the first hour. JCAHO has ignored its own analytical data. The first hour is fundamental and clinically trained and competent staff must make these determinations. Further, only the treating professional knows the medical condition of the patient, their ability to withstand R/S, and their ability to withstand coercion and force used in applying R/S.
Families would be notified, consistent with client preferences and confidentiality. This is good. R/S are to be ordered by licensed independent practitioners OR "the organization may authorize qualified, trained staff members who are NOT licensed independent practitioners to initiate" R/S. The facility determines who is "qualified and trained" to place people in R/S. While the HCFA rule has generated a debate about the responsibility of physicians and other licensed independent practitioners, JCAHO would allow non-professionals selected by the facility to place people in involuntary R/S. JCAHO barely even mentions the role of physicians in responding to emergency situations. This use of non-professionals making sometimes life and death decisions is not acceptable to consumers and advocates.
While the HCFA rule requires a face-to-face evaluation within an hour of initiating R/S, JCAHO merely requires that a licensed independent practitioner conduct a face-to-face evaluation "promptly." There is no time period stated.
Last, after the licensed independent practitioner has completed a face-to-face evaluation and determined that R/S should continue, this information must be entered into the patient's medical record. This is not acceptable to consumers and family members. All incidents, regardless of who makes the initial decision, must be included in the patient's record. The time, date, circumstances, duration and who made the determination must be included in the record - after each incident. NAMI also believes nonphysical methods tried but not effective should be documented in the patient's record.
2. and 3. Orders for R/S - TX 3.5 - pages 10-11 of the standards - response questions 35-36 and face-to-face assessments
JCAHO limits verbal and written orders to 4 hours for adults, 2 hours for children ages 9-17, and one hour for children under the age of 9 years. But there are gimmicks in another section of the standards (TX 3.7) allowing longer periods of R/S. The HCFA rules use the same time periods but also require a face-to-face evaluation within the first hour.
JCAHO prohibits standing orders for R/S use, known as PRN orders. However, JCAHO uses another gimmick. When the R/S is terminated before the time limit order expires, the original order can be reapplied. This defeats the time limits, does not recognize the use of R/S to solely emergencies, does not permit an individualized response, and, because there is no required time period for a face-to-face assessment, allows R/S to be used for hour upon hour with no face-to-face assessment (as the verbal order expires before the face-to-face assessment). By creatively using one four hour order for extended periods of three hours and 55 minutes, patients can remain in almost unlimited R/S without having a face-to-face evaluation. This gimmick also essentially eliminates the need for a written order for R/S and effectively eliminates the need for standard 3.4.4 (prompt face-to-face evaluation).
4. Monitoring and Assisting - TX 3.6 - pages 11-12 of the standards - response questions 37-41
The standard is good - Monitoring is accomplished through continuos face-to-face observation by an assigned staff member. The standard would be excellent if the assigned staff member met some national standard for clinical experience and competence. However, there is another gimmick. On page two of the instructions, monitoring requirements include a reference to "whether video monitoring is sufficient, etc." For NAMI, video and audio surveillance is never appropriate. Monitoring must be continuous and within sight or directly by clinically trained persons. Only medically trained personnel can adequately monitor vital signs and determine possible adverse reactions to R/S. Ideally, these should be persons skilled in active listening and negotiation skills.
5. Reevaluation of the Individual in R/S and Renewal of Orders - TX 3.7 - pages 12-13 of the standards - response questions 42-46
This is another standard full of gimmicks undermining the intent of the standard. The standard says that when the order for R/S expires, the individual receives a face-to-face reevaluation by a LIP to determine whether R/S should be discontinued. However, TX 3.5, previously discussed, allows orders, including verbal orders, which have not expired, to be reused. And the standard TX 3.7 allows "qualified and trained individuals OTHER THAN a licensed independent practitioner" to do the face-to-face evaluation and allow renewal.
Further, as noted above, while the time-period for the R/S is 4 hours/2 hours/one hour, orders may be renewed for periods of 8 hours for adults, 4 hours for children between the ages of 9-17, and 2 hours for children under the age of 9 years. Thus the HCFA rules are undermined again, this time with longer time periods. And further still, the time limits apply only to written orders.
TX 3.7 requires that clinical leadership be notified when R/S have been used for longer than 24 hours. Official notification of the facility's clinical leadership is a good principle. But, whatever happened to the 4-2-1 hour limits? Former NAMI Board member, J. Rock Johnson, J.D., who also served on a JCAHO Patient Advisory Council (PTAC), has stated that "I find it beyond a gimmick, but false and misleading to say 'time limited' when the order can be continued without external scrutiny."
6. Applicability of R/S Standards - Introduction - pages 5-6 of the standards - response form questions 17-20
The JCAHO R/S standards do not apply for individuals which exhibit " intractable behavior which is severely injurious to others and has not responded to traditional interventions, if such individuals receive treatment through formal behavior management programs." Many advocates have expressed alarm at this potentially large loophole.
Further, the R/S standards do not apply for "individuals who are in the emergency department for the purpose of assessment, stabilization, or treatment, even if awaiting transfer to a psychiatric hospital or psychiatric unit" and to "individuals awaiting transfer from a nonpsychiatric bed to a psychiatric bed or psychiatric unit after receiving medical or surgical care." NAMI founding member and former JCAHO PTAC member Max Schneier, J.D., has observed that "both of these non-applications would certainly be in violation of the Americans with Disabilities Act. You can not restrain all patients with mental illness awaiting emergency room care and not patients with physical illnesses awaiting care. This definitely violates the ADA."
7. Discontinuation of R/S - TX 3.8. - page 13 of the standards - response to questions 47 and 48
Standard TX 3.8 requires that R/S be discontinued "when the individual meets the behavior criteria for release." But such criteria are not listed anywhere in the standard. NAMI's Public Policy Platform declares that R/S are emergency responses to safety situations. Thus, the criteria for being released should be "there is no longer an imminent risk of the person physically harming themselves or others."
· No External Reporting of Deaths
There are many other areas of concern, but these are the priority areas identified by JCAHO itself, which require particular discussion.
Moreover, while the JCAHO standards do echo some of the requirements contained in the HCFA regulations, they fail to even mention one of the most critical elements from those regulations. This element is that hospitals are required to provide HCFA with reports on any deaths that occur as a result of R/S. As HCFA's agent overseeing the compliance of hospitals with vital patient care responsibilities; it should be incumbent on JCAHO to also report deaths to HCFA.
NAMI is coordinating its response to JCAHO through the Advocate's Coalition for the Appropriate Use of Restraints. Preparation of this analysis was assisted by NAMI members Max Schneier, J.D., and J. Rock Johnson, J.D., and staff of the Bazelon Center for Mental Health Law and the National Association of Protection and Advocacy Systems. NAMI's Clarke Ross chairs the Advocate's Coalition.
HCFA's interim final regulations can be obtained by clicking here