Restraint Regulations for RTC Comments
July 19, 2001
Centers for Medicare and Medicaid Services
Department of Health and Human Services
P.O. Box 8010
Baltimore, MD 21244-8010
Attn: File Code HCFA-2065-IFC2
NAMI, the National Alliance for the Mentally Ill, with a nationwide grassroots membership of 220,000 persons directly affected by severe mental illness— submits the following comments in reference to the amendment to the interim final rule on the use of restraints and seclusion in psychiatric residential treatment facilities (PRTFs) for individuals under the age of 21, as published in the Federal Register (Vol. 66, No. 99) on May 22, 2001.
NAMI greatly appreciates the promulgation of regulations on the use of restraints and seclusion for psychiatric residential treatment facilities serving children and youth. A major NAMI priority has been to advocate for the issuance of single national standards on use of restraints in residential treatment centers for children. Residential treatment facilities are rapidly replacing hospitals in treating children and adolescents with severe mental illness, as these facilities are generally less restrictive than hospitals for children who are in need of residential treatment. Many NAMI members and families utilize residential treatment facilities for treating their children with severe mental illness and want necessary safeguards in place to prevent harms from the inappropriate or excessive use of restraints.
In 1999, the Hartford Courant published a series of articles documenting a disturbing pattern of deaths and serious injuries resulting from the inappropriate use of restraints in treatment facilities and the community. Many of the victims were children and adolescents. NAMI’s Cries of Anguish", published on our web site document more deaths and serious injuries. Thus, we believe that regulations creating specific guidelines and training requirements governing the use of restraints in RTCs is critically important.
We are pleased that this rule established several important requirements relating to the use of restraints and seclusion including provisions on orders, physician consultation, monitoring, reporting, parental/guardian notification, debriefing and education/training. Although we are generally pleased with the final rule, we do have some concerns with some of its provisions.
In addition, the amendments published May 22, 2001 do not address the concerns that NAMI raised in comments on the original January 22, 2001 interim final rule (66 Fed. Reg. 7147) and hope that these particular issues are still being reviewed by CMS, and that those concerns will be addressed in future amendments to the regulations.
Section 483.358 Orders for the Use of Restraint or Seclusion
The earlier rule specified that any orders for restraint or seclusion must be issued by a psychiatrist, a licensed physician with specialized training and experience in diagnosing and treating mental illness, or a registered nurse who has received a verbal order from a physician. The revised rule published in the May 22 Federal Register broadens the standard for who may order restraints to include "other licensed practitioners." It states that this change is due to the "serious and immediate concerns raised about the severe shortage of registered nurses and the unavailability of psychiatrists" in RTCs. The Department feared that many facilities would be unable to meet the conditions of participation set forth in the earlier rule and that children and adolescents would therefore be left without residential placements.
Under the revised rule, a registered nurse or other licensed staff (e.g. a licensed practical nurse) may initiate the use of restraints in an RTC as long as he/she obtains a verbal order from a physician to do so. Moreover, the physician need not be present at the time the restraints are initiated, as long as the physician verifies through a signature that he or she gave the order to initiate the restraints. NAMI is troubled by this amendment because the types of professionals who may be viewed as licensed practitioners presumably will vary widely among the states, and may include those with insufficient expertise or training to institute the use of restraints. For the most part, States have not established meaningful experience and training requirements for all licensed practitioners related to the care of persons with mental illness.
NAMI is concerned that the term "other licensed practitioner" establishes broad leeway for untrained individuals to initiate the use of restraints. Many deaths documented by the Hartford Courant in 1998 can be linked directly to use of restraints by individuals untrained in the safe use of these potentially deadly interventions. Therefore, although NAMI appreciates concerns about the shortage of qualified professionals in certain areas, we believe that this expanded standard will not adequately protect vulnerable children and adolescents with mental illnesses who are in RTCs.
NAMI urges CMS to use the term "independent" in the final regulation specifying that the professional (other than a physician) who may be permitted to issue restraint and seclusion orders must be "a licensed independent mental health practitioner." The hospital regulations define (at 64 Fed. Reg. 36079) a licensed independent practicioner as, "any individual permitted by law and by the hospital to provide care and services, without direction or supervision, within the scope of the individual’s license and consistent with individually granted clinical privileges." Without the qualification that one be a mental health professional, it is quite possible that facilities will rely on any one of a number of practitioners with little or no experience regarding the treatment of children and adolescents with mental illness (e.g., a social worker or marriage counselor). Further, NAMI strongly recommends that the regulations be revised to further strengthen the training requirements for licensed practitioners.
The final rule has also been revised to permit "licensed practitioners" to conduct the face-to-face assessment of the physical and psychological well being of the child or adolescent who is in restraints or seclusion. Under the prior rule, these assessments (which must be conducted within one hour of the intervention) were to be done by a physician or clinically qualified registered nurse. NAMI’s concern with regard to issuing orders for the use of restraint or seclusion orders are equally applicable to persons who are permitted to conduct the face-to-face assessments of children which have experienced restraint and/or seclusion. Accordingly, the regulation should be revised to permit only physicians and licensed independent mental health practitioners to perform these assessments.
NAMI also believes that training requirements for those authorized to initiate the use of restraint and seclusion in RTCs must be enhanced. We specifically recommend regulations that require staff to demonstrate competence in the following additional areas related to diagnosis and medical intervention issues: taking vital signs; the physical and psychological impact of restraint and seclusion, including positional asphyxia; recognizing nutrition and hydration needs; checking circulation and range of motion in extremities; addressing hygiene and elimination; monitoring and addressing physical and psychological status and comfort; and recognizing when to contact a medical professional in order to evaluate and/or treat the resident who is being subjected to restraints.
We believe that the requirements in this section will go a long way toward ensuring that staff are sensitized and competent with regard to the use of restraint and seclusion. Education and training on de-escalation techniques and alternative to the use of restraint and seclusion will help in reducing the use of these dangerous interventions.
Thank you for the opportunity to provide comments.
Ron Honberg, J.D.
Deputy Executive Director for Legal Affairs
Andrew Sperling, J.D.
Deputy Executive Director for Public Policy
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