Senate Passes Restraint Protections
House Action Likely This Week
Sections 3207 and 3208, would establish a federal government standard for the use of restraint and seclusion. These sections are an expansion of earlier Senate passed legislation and adopt the fundamental provisions sought by NAMI and the Advocates Coalition for the Appropriate Use of Restraints. Senator Chris Dodd (D-CT) is the major sponsor of this legislation, but many other federal legislators were active advocates of such legislation, including Senators Joseph Lieberman (D-CT), Tom Harkin (D-IA), and Arlen Specter (R-PA) and Representatives Chris Shays (R-CT), Diana DeGette (D-CO), Rosa DeLauro (D-CT), and Pete Stark (D-CA). Many other legislative leaders, particularly on the Senate side, supported this legislative initiative.
There are two separate sections to the regulation of restraint and seclusion - general requirements related to all facilities receiving federal appropriated funds and special requirements for "non-medical community-based facilities for children and youth." The second section dealing with these special facilities is the result of a negotiated agreement between the Advocates Coalition for the Appropriate Use of Restraints, chaired by NAMI, and the Child Welfare League of American and their associates, Catholic Charities and the Alliance for Children and Families. The Advocates Coalition is comprised of the following organizations:
The ARC, US
Bazelon Center for Mental Health Law
Federation of Families for Children's Mental Health
International Association of Psychosocial Rehabilitation Services
National Alliance for the Mentally Ill
National Association of Protection and Advocacy Systems
National Council for Community Behavioral Healthcare
National Mental Health Association
GENERAL REQUIREMENTS RELATING TO ALL FACILITIES
Residents would be free from any restraints and involuntary seclusions imposed for purposes of discipline and convenience. Restraints and involuntary seclusions may only be imposed to ensure the physical safety of the resident, staff, or others. [Through the legislative give-and-take with provider groups, a clear statement that restraints and involuntary seclusions could only be used for emergency safety situations was not made.]
Restraints and involuntary seclusions (R/S) may only be imposed under the written order of a physician or other licensed practitioner permitted by state law or regulation and the order must specify the duration and circumstances of the R/S. Though there is no timeframe in the legislation, such as a one-hour face-to-face evaluation, the legislation declares that "This part shall not be construed to offset or impede any Federal or State law or regulations that provide greater protections than this part regarding seclusion and restraint." Thus, for example, last year's Health Care Financing Administration (HCFA) hospital rules, that include the one hour rule that requires a face-to-face evaluation by a mental health professional within one hour of initiating restraint, are affirmed. For more information on the HCFA rules, see the NAMI Where We Stand paper on Restraint and Seclusion on the NAMI website at http://www.nami.org/update/unitedrestraint.html
Seclusion does not include time out and physical restraint does not include physical escort.
Reporting of Deaths: Facilities shall report each death occurring within 24 hours after the patient has been removed from R/S, or where it is reasonable to assume that a patient's death is a result of R/S. Reports shall be made to appropriate agencies determined by the Department of Health and Human Services (HHS). As this requirement amends the Protection and Advocacy for Mentally Ill Individuals Act (PAMII), one can assume that the reports will be made to the state P&As. [Efforts to have serious injuries reported failed. Also, Rep. DeGette attempted to get deaths occurring within 7 days after the patient has been removed from R/S reported, but this was also not successful.]
Within 12 months of enactment, HHS must issue regulations specifying adequate number of staff in facilities and appropriate training in the use of R/S and their alternatives.
SPECIAL TREATMENT FOR NON-MEDICAL COMMUNITY CHILDREN'S PROGRAMS
The Child Welfare League of America and their associates had proposed exempting special child facilities from the requirements. As a result of negotiations with the Advocates Coalition and through the leadership of Senator Dodd, a special set of requirements are included in the legislation. Public or private non-medical community based facilities for children and youth are those defined in regulations by HHS. However, any facility financed through the Medicaid psychiatric treatment benefit for children age 21 and under are covered under the general requirements and not under this special authority. All facilities receiving Medicaid financing must continue to meet all Medicaid requirements.
Restraint and involuntary seclusion may only be used in emergency circumstances and only to ensure immediate physical safety. Mechanical restraints would be prohibited in such facilities. Physical restraint would not include physical escorts and seclusion would not include time out. Seclusion would only be allowed when a staff member continuously monitors face-to-face.
As with the general requirements, nothing in this legislation would prohibit the federal or state governments from issuing greater protections than these. The reporting of all facility deaths would be required to appropriate state licensing and regulatory agencies as determined by HHS. [Note that the P&A is not explicitly cited, although the federal legislation being amended is the PAMII law.]
The real difference between the general requirement and this special requirement is who is authorized to order the restraint and involuntary seclusion. Under the general requirement, only a physician or licensed practitioner as permitted by the state may order a restraint or involuntary seclusion. Under this special requirement, R/S are imposed only by an individual trained and certified by a state-recognized body, as defined in regulation promulgated by HHS and pursuant to a process determined appropriate by the state and approved by HHS. In the interim, until such time as such a state process is in place, R/S may only be used when a supervisory or senior staff person with training and competencies listed in the legislation conducts a face-to-face assessment (as defined by HHS). The face-to-face assessment must be conducted within the first hour of imposing R/S. Such R/S use must be monitored by such supervisory or senior staff person.
The legislation lists a comprehensive set of skills and competencies which both the interim supervisory and senior staff as well as the individual trained and certified by the state must possess. These include prevention and use of R/S, needs and behaviors of the population served, relationship building, alternatives to R/S, de-escalation methods, avoiding power struggles, thresholds for R/S, physiological and psychological impact of R/S, monitoring physical signs of distress and obtaining medical assistance, legal issues, position asphyxia, escape and evasion techniques, time limits, the process for continuing R/S, documentation, investigation of injuries and complaints, and other related skills and competencies.
Within six months of enactment, states which license such facilities must develop licensing rules and monitoring requirements and HHS will begin to develop national guidelines and standards on quality, quantity, orientation, and training of staff.
This legislation is the successful culmination of two years of effort by NAMI and its membership, and other advocacy organizations for the creation of a national standard for the use of restraint and seclusion in psychiatric treatment facilities. NAMI would like to extend its appreciation and gratitude to all of our membership and our state and local affiliates for responding to the many action alerts over the past years and engaging in this successful federal advocacy effort to improve the lives of people with serious brain disorders. NAMI would also like to thank those who submitted the heart-wrenching stories of abuse to NAMI's report, "Cries of Anguish," and to thank all those who shared better practice sites. Assuming enactment of H.R. 4365, the need for a national standard in schools and jails and prisons will be the next year's effort.