April 16, 1999

Three bills were introduced in Congress last month to limit the use of seclusion and restraints for preventing psychiatric patients from harming themselves or others in federally funded facilities. The proposals would establish national standards for appropriate use and additional reporting requirements.

The legislation was prompted by the well-publicized Hartford Courant investigative series last October. The newspaper's survey found that 142 restraint-related deaths had occurred nationally in psychiatric treatment and residential facilities since 1988.

Bill sponsor Sen. Joseph Lieberman (D-Conn.) commented at the March press briefing on Capitol Hill, "The Courant must be commended for exposing a dark corner of institutional life that most of us never know about. The use of restraints on psychiatric patients can be cruel and inhumane. It can be fatal. Our legislation aims squarely at preventing cruelty, inhumanity, and deaths."

The other two bills were sponsored by Sen. Christopher Dodd (D-Conn.) and by Reps. Diana DeGette (D-Colo.), Pete Stark (D-Calif.), and Rosa DeLauro (D-Conn.).

APA Medical Director Steven M. Mirin, M.D., told Psychiatric News, "We deplore the fact that any patients have died in restraints. Restraint and seclusion at times, however, are the only means available to prevent patients from harming themselves or others. Implementing these procedures carries a degree of risk for patients and staff, but that risk will not be reduced by regulation alone."

The proposed legislation would require a physician's written order to specify the duration and circumstances under which physical and chemical restraints may be used. The DeGette bill specifies that the duration cannot exceed two consecutive hours. Involuntary seclusion and restraints for purposes of discipline and staff convenience are explicitly prohibited. In emergency circumstances, restraints may be used until a written order can be obtained, according to congressional statements.

Facilities treating psychiatric patients including residential treatment centers and general and psychiatric hospitals would be required to report "sentinel events," that is, incidents resulting in serious injury or death of psychiatric patients to the state Protection and Advocacy (P&A) system, the Department of Health and Human Services (HHS), or the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

The Dodd and DeGette bills also would require facilities to report frequency of restraint use to the HHS Secretary and the state P&A system. The Secretary would compile an annual report on the use of restraints and the number of related sentinel events under the DeGette bill.

Requirements to investigate sentinel events vary by bill. Lieberman takes the least-restrictive approach by allowing the provider to examine the cause of the sentinel event and take corrective actions to prevent similar incidents. However, the incident, remedial steps, and the provider's name and address would be entered into a database available to the public through the Internet, notes a statement by Lieberman.

The DeGette and Dodd bills give the state P&A systems the authority to investigate sentinel events, according to congressional press statements.

DeLauro commented at the press briefing, "We believe this is an appropriate role for the P&A system, which already has a federal mandate to investigate and remedy abuse and neglect of persons with disabilities, including the misuse of restraint and seclusion."

The Dodd and DeGette bills also mandate adequate staffing and training for staff in the appropriate use of restraints and their alternatives are also mandated. Dodd's bill specifically requires the HHS Secretary to develop regulations on the staffing requirements. None of the bills, however, mentions how these activities will be funded.

Mirin commented, "To ensure clinically appropriate and humane care of patients, federal legislative efforts must also ensure adequate funding for clinical services, training of caregivers, and the availability of high-quality, specialized treatment programs for patients with severe and persistent mental illness."

Finally, facilities that violate the provisions in the DeGette and Dodd bills could lose federal funding. In 1994 Medicare and Medicaid funding made up about 40 percent of the $36 billion that flowed into mental health facilities, according to a Senate press statement. The DeGette bill also would fine facilities up to $5,000 for failing to file the mandated sentinel reports within the specified deadlines.

All three bills would amend the 1987 Nursing Home Reform Act, which established standards on the use of restraints to include mental health facilities. The Health Care Financing Administration noted that nursing homes have reduced their use of restraints by over one-third in the last eight years, according to a Senate press statement.-C.L.