Limiting the Use of Restraint and Seclusion in Psychiatric
Residential Treatment Facilities for Patients Under 21

Jessica Luna, J.D. candidate

Psychiatric facilities often use medical interventions in the form of restraint or seclusion to reduce safety risks posed by violent patients and to prevent patients from harming themselves and others.  In fact, there are approximately 47 situations a month, per psychiatric treatment facility, in which restraint or seclusion is used.   That constitutes about 282,000 uses in the U.S. per year.  42 CFR §483.358.

Restraints can include physical force, mechanical devices, or drugs that temporarily restrict freedom of movement or control behavior and are not part of the patient’s standard treatment.  See http://www.bazelon.org/799s&r.html.  Although the use of restraint or seclusion is often the only alternative for subduing a violent patient, the use is not always well monitored and is often abused.   The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) conducts oversight of the use of seclusion and restraint in accredited hospitals and other healthcare facilities.  However, JCAHO does not investigate individual complaints and its oversight consists mostly of pre-announced visits every three years.  See http://www.nami.org/update/990506q.html.      Also, although many states have standards and regulations for the use of restraint and seclusion, until recently no uniformity existed among the states.
 
In October of 1998, an investigative series published in The Hartford Courant began to raise awareness about the problems associated in the misuse of restraint and seclusion.  The investigation documented 142 deaths that occurred in psychiatric treatment facilities.  A 1999 report by the General Accounting Office (GAO), entitled Mental Health: Improper Restraint or Seclusion Use Places People at Risk, created further awareness and concern about the use of restraints and seclusion.  Today, the Center for Risk Analysis at Hartford University estimates that between 50 and 150 deaths a year result from the use of restraints in psychiatric treatment facilities.   It is estimated that 8-10 children die each year in the U.S. where behavior management restraints are involved.  See http://www.cwla.org/advocacy/secresfactsheet.htm.

In 1999, Congress passed the Children’s Health Act (P.L. 106-310), which applies to children and youth and provides for the protection and promotion of patients’ rights.  Section 3207 of the Act provides that patients be free from restraints or involuntary seclusions utilized for discipline or convenience.  The Act set the floor for regulation, but allows other state or federal laws and regulations on the issue of restraint and seclusion to be more protective of patients’ rights.   §591(c).

On January 22, 2001, the Centers for Medicare & Medicaid Services (CMS), formerly called the Health Care Financing Administration (HCFA), released a more protective regulation in the form of an interim final rule.  66 Fed. Reg. 7148 (2001).  The rule applies to patients under the age of 21 who receive inpatient psychiatric services under Medicaid and provides patients freedom from restraints or involuntary seclusions utilized for coercion, discipline, retaliation, or convenience.  The interim final rule is designed to govern “psychiatric residential treatment facilities” which were defined as facilities that are “not a hospital and that may furnish covered Medicaid inpatient psychiatric services to individuals under age 21.”   Id.  The definition of these facilities was clarified, and several questions/comments were addressed, in an amended interim final rule published in the May 22, 2001 Federal Register.  66 Fed. Reg. 2811 (2001). The rule took effect immediately, but the comment period for the rule will extend through July 23, 2001.  See http://www.cwla.org/secres010525.htm.  To view the amended interim final rule, go to http://www.access.gpo.gov/su_docs/aces/aces140.html and type 02/22/2001 into the date field and “restraint” into the search field.

The interim final rule now defines a “psychiatric residential treatment facility” as a psychiatric hospital or “another inpatient setting that the secretary has specified in regulations.”   66 FR 28111 (2001).  The major requirements of the rule are:

The National Alliance for the Mentally Ill (NAMI) supports the rule, claiming that the need for protection is great (see http://www.nami.org/update/Hartford.html for a list of reports received on restraint and seclusion abuse since the October 1998 investigation by The Hartford Courant) and advocates for a single national standard for all CMS (formerly HCFA) treatment facilities   NAMI states that no evidence exists to show that violence will increase with the decrease in usage of restraint and seclusion, and that multi-year data monitoring used by the Pennsylvania Office of Mental Health and Substance Abuse Services shows the opposite effect (when the use of restraint and seclusion is reduced, violence and assaults decline). See http://www.nami.org/update/990506q.html.

The American Psychiatric Association (APA), on the other hand, does not support the rule.  Following the first release of the rule in January, the APA submitted a number of concerns to the Acting Administrator of CMS.  The APA stated that “the interim final rule will have a costly and profound impact on the ability of psychiatric residential treatment centers (RTCs) to admit and treat children and youth, particularly those whose medical conditions renders them at high risk for the types of behavior that may require temporary holds or the use of seclusion or restraint.”  The APA stated further that the rule’s requirements demonstrate a failure to understand the nature of the patient population that is provided treatment.  Specifically, the rule’s requirements regarding the debriefing sessions, parent notification, and face-to-face evaluations are not conducive to the treatment of patients for whom the behaviors that require intervention are repetitive in nature.  In fact, the APA advocated the withdrawal of the interim final rule, and submitted a request to that effect to both the DHHS Secretary and to CMS.  See http://www.psych.org/pub_pol_adv/rtcinterimfinalruleltr32701.cfm.  The APA has yet to release its opinion of the amended rule, however, it did address the release of the amendment and it stated that it “…should view any changes easing the burden of compliance as a positive development.”  See http://www.psych.org/pub_pol_adv/interimfinalrule52201.cfm.

It seems that the need for a uniform national rule on restraints and seclusion, especially for children and youth, is necessary and was a long time in coming.  However, the APA’s concerns over the interim final rule are well founded.  First, the rule does appear to over-regulate the use of restraint and seclusion, especially when it comes to patients who repeatedly require their use.  The solution to this problem, however, should not be the withdrawal of the rule, as the APA advocates.  Second, implementation of the rule will be costly.  CMS addressed cost concerns in the January release of the rule, stating that cost increases will come from three sources:  new staff costs, training costs, and reporting costs.  CMS estimates that the total cost increase will be about $58 million for the first full year of implementation, 2002.  While concern over cost is justified, concern for patient’s rights should take precedence.

08/29/01