Congress Passes Landmark Legislation Restricting Restraints & Seclusion

Congress Passes Landmark Legislation Restricting Restraints & Seclusion

Posted on September 28, 2000

Arlington, VA - The National Alliance for the Mentally Ill (NAMI) today is celebrating Congress' passage of legislation establishing national standards that restrict the use of restraints and seclusion (R/S) in all psychiatric facilities which receive federal funds and in "non-medical community-based facilities for children and youth." Contained in H.R. 4365, the "Children's Health Act of 2000," the legislation is now headed to the President's desk.

"Many Americans may not immediately recognize the significance of what Congress has accomplished," NAMI executive director Laurie Flynn declared. "But for others, these particular sections of the bill will make a difference between life and death. People with mental illnesses who may become hospitalized or be treated in other facilities will now be protected under federal law by national standards that restrict the use of R/S to emergency safety situations."

"It is a victory for all Americans," Flynn said. "No one is immune from mental illness. What affects one person could affect any of us at any time. Passage of the legislation is a victory for individual dignity and human rights."

For two years, NAMI has led efforts to enact such legislation, beginning with NAMI-Connecticut leaders who persuaded The Hartford Courant to launch a national investigation of deaths and injuries due to the improper use of restraints on psychiatric patients-many of them children. Published in October 1998, the investigation documented 142 deaths over a 10-year period and produced an estimate from the Harvard Center for Risk Analysis of between 50 and 150 deaths annually, most of which went unreported.

Following the Hartford Courant investigation, NAMI continued to compile reports of abuses in a summary entitled "Cries of Anguish." When Senators Christopher Dodd (D-CT) and Joseph Lieberman (D-CT) and Representatives Diana DeGette (D-CO), Rosa DeLauro (D-CT) and Pete Stark (D-CA) introduced legislation to address the issue in March 1999, five additional deaths had occurred. Four involved youth under age 18. One was a nine-year old boy. Subsequently, Representative Chris Shays (R-CT) introduced additional legislation.

In September 1999, the U.S. General Accounting Office (GAO) issued a report identifying 24 deaths in 1999 and concluding that, because of the lack of reporting, "we believe there are many more deaths associated with restraints." When the Health Care Financing Administration (HCFA) began to require hospitals to report such deaths, 30 more deaths were tallied between August 1999 and August 2000. News media also have reported 15 deaths this year, including two recently in "wilderness camps."

"We are grateful to the sponsors of the Congressional legislation, as well as Senators Arlen Specter (R-PA) and Tom Harkin (D-IA), and many others. It truly has been a bipartisan effort. There is much credit to go around," Flynn noted.

A key agreement that facilitated passage of the legislation was negotiated between the "Advocates Coalition for the Appropriate Use of Restraints" chaired by NAMI, and the Child Welfare League of America in association with Catholic Charities and Alliance for Children and Families. The agreement created two separate sections: general requirements for all facilities that receive federal funds and special requirements for "non-medical community-based facilities for children and youth." Members of the Advocates Coalition include:

The ARC, USA
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 & Advocacy Systems
National Council for Community Behavioral Healthcare
National Mental Health Association

Key Provisions Under General Requirements Include:

• Restraints and involuntary seclusion (R/S) may only be imposed to ensure the physical safety of a patient. They cannot be used as punishment or for staff convenience.
• R/S may be imposed only under the written order of a physician or other licensed practitioner permitted under state law. Orders must specify the duration and circumstances for the R/S.
• Although no timeframe is specified for face-to-face evaluations, the legislation declares that it should not be construed as offsetting or impeding any federal or state regulations that provide greater protections. The effect is to affirm hospital rules promulgated last year by HCFA, including the "one hour rule" that requires face to-face evaluations by licensed professional practitioners within one hour of initiating R/S.
• Facilities must report every death that occur within 24 hours after a patient has been removed from R/S, or where it is reasonable to assume that a death is the result of R/S. Reports are to be made to appropriate agencies determined by the Department of Health & Human Services (HHS), and most likely will include mstate protection and advocacy agencies.
• Within 12 months, HHS also must issue regulations specifying adequate numbers of staff for facilities and appropriate training for the use of R/S and its alternatives.

For Non-Medical Community Children's Programs:

• R/S may be used only in emergencies and to ensure immediate physical safety. Mechanical restraints are prohibited. Seclusion only is allowed when a staff member continuously monitors face-to-face. Time-outs, however, are not considered seclusion and physical escorts are not considered physical restraints.
• Only individuals trained and certified by a state-recognized body may impose R/S. Until a state certification process is in place, R/S can be used only when a supervisory or senior staff person with skills and competencies specifically listed in the legislation conducts a face-to-face assessment within an hour after R/S is imposed. The use of R/S must then be monitored by the supervisory or senior staff person.
• Required skills and competencies include needs and behaviors of populations served, relationship building, avoiding power struggles, de-escalation methods, alternatives to R/S, time limits, monitoring signs of physical distress, position asphyxia, obtaining medical assistance and legal issues.
• Within six months, states, which license such facilities, must develop licensing and monitoring rules, and HHS will begin to develop national staffing standards and guidelines.

H.R. 4365 consists of 36 legislative titles, including reauthorization of the Substance Abuse & Mental Health Services Administration (SAMHSA) and other issues of importance to the mental health community. The new national standards apply only to psychiatric treatment facilities. They do not affect use of R/S in schools, wilderness camps, jails or prisons.