HCFA Issues Interim Final Rules On Restraint And Seclusion For Children's Psychiatric Facilities
On Friday, January 19, the Health Care Financing Administration (HCFA) issued an interim final rule that will set forth standards protecting children and their right to be free from restraint and seclusion (R/S). The new rule establishes a definition of a "psychiatric residential treatment facility" as a non-hospital facility that provides Medicaid covered psychiatric services to individuals under the age of 21. Residential treatment facilities are quickly replacing hospitals in providing psychiatric treatment for children and adolescents, creating the need for greater protections of this vulnerable population.
A major NAMI public policy objective has been advocating for the issuance of a HCFA-wide single national standard on restraint use, particularly as it covers residential treatment centers for children. This new rule will establish several important requirements relating to the use of restraint and seclusion, including provisions on orders for R/S, physician consultation, monitoring, reporting, parental/guardian notification, debriefing and education/training.
Because of the urgency to issue further protections for children from restraint and seclusion in residential treatment facilities, HCFA has issued this final rule on an interim basis and has waived the notice of proposed rulemaking, creating a 60-day comment period.
The effective date listed in the Federal Register for these regulations is March 23, 2001. However, after President Bush took the oath of office on January 20, an executive order was issued which stopped the publication of any new regulations, proposed rules and notices in the Federal Register. This executive order, which was under the authority of the new administration to execute also put a 60-day moratorium on any new regulations that were approved during the last days of the Clinton Administration so that the incoming Bush Administration could review and approve any new regulatory actions. It appears that the effective date on this new R/S rule would be affected by the executive order--postponing the effective date 60 days, until May 22, 2001.
This same moratorium appears to apply to a number of other new final rules and regulations of concern to NAMI including those on Medicaid managed care, medical privacy, Social Security Substantial Gainful Activity (SGA) limits and state grants under the Ticket to Work and Work Incentives Improvement Act (TWWIIA). However, in each of these cases, this Executive Order appears only to delay effective dates by 60 days, and does not overturn any rules that are deemed final or interim final. In order to change or overturn any of these final rules, the new Administration must initiate an entirely new rulemaking process, a lengthy endeavor. NAMI will continue to monitor this situation closely.
The new rule creates a Condition of Participation (CoP) for psychiatric residential treatment facilities that provide Medicaid covered services to individuals under the age of 21, which would protect individuals from the use of R/S of any form, when "used as a means of coercion, discipline, convenience, or retaliation." Expressly, the use of restraint or seclusion is to be used only in emergency safety situations, preferably under an order from the individual's treatment team physician. If the treatment team physician is unavailable, authority to order R/S is limited to a board certified psychiatrist or a licensed physician with specialized training and experience in diagnosing and treating mental illness. (If the physician is not present, a registered nurse must obtain the physician's verbal order before staff can initiate restraint or seclusion). The CoP restricts the simultaneous use of restraint and seclusion and contains age-specific time limits for any order of restraint or seclusion.
The interim final rules can be found in the Federal Register for Monday, January 22. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=01-1649-filed
Children and adolescents are much more vulnerable to the tragic consequences that can result from the use of restraint and seclusion. In NAMI's Cries of Anguish, a compilation of stories documenting the use of restraint and seclusion, almost half of the reports involve children, with 12 of these reported incidents resulting in the death of the child due to the inappropriate use of restraint and seclusion. Media reports confirm that death and serious injury to children and adolescents continue to occur across the country.
The 1999 GAO report, "Improper Restraint or Seclusion Use Places People at Risk" found that higher restraint rates exist for children and adolescents. Further, the report confirmed the incidents detailed in The Hartford Courant's 1998 five-part series that revealed an alarming number of deaths resulting from the inappropriate use of physical restraints in psychiatric treatment facilities across the United States. A 50-state survey conducted by the newspaper documented at least 142 deaths in the past decade connected to the use of physical restraints or to the practice of seclusion, with children accounting for more than 26% of those reported deaths. The GAO report also confirms that the "full extent of related injuries and deaths are unknown" due to no comprehensive reporting system. For more information on the 1999 GAO report, please see NAMI E-News Vol. 00-43 at http://www.nami.org/update/991001.html
To address concerns over the abuses of restraint and seclusion Congress passed the Children's Health Act of 2000 (P.L. 106-310), which was signed by former President Clinton on October 17, 2000. Among many other legislative issues, the Children's Health Act of 2000 contained federal standards for the use of restraint and seclusion. The regulations were separated into two separate sections, general requirements related to all facilities receiving federal appropriated funds and special requirements for "non-medical community -based facilities for children and youth. These standards apply only to psychiatric treatment facilities that receive federal funding.
P.L. 106-310 does not impede any Federal or State law or regulations that provide greater protections than written in the Children's Health Act of 2000. Thus, past rules issued by the Health Care Financing Administration were affirmed. With the high rate of death and serious injury due to the inappropriate use of restraint and seclusion that was documented in the 1999 GAO report, the requirements issued by HCFA provide greater protections than those provided in the Children's Health Act of 2000.