CMS Proposes to Change Rule of Restraints

The Bush administration has taken an initial step toward imposing consistency on the proliferating federal rules regarding the use of restraints and seclusion in mental health facilities. Secretary of the U.S. Department of Health and Human Services (HHS) Tommy G. Thompson announced on May 24 that the Centers for Medicare & Medicaid Services (CMS), the successor to the Health Care Financing Administration (HCFA), want to change some of the restraint-use rules that apply to Medicaid residential facilities for children under the age of 21.

There are two reasons for the proposed changes. After the interim final rule was published on Jan. 22, the CMS received comments arguing that shortages of registered nurses and psychiatrists made adhering to some of the rule's provisions difficult. "We are concerned that substantial numbers of facilities would not be able to comply with certain requirements of our interim final rule and that beneficiaries will suffer needless displacement from those facilities," stated the HHS in the May 22 Federal Register.

In addition, CMS wanted to make other changes in the interim final rule so at least one important provision corresponds to the language of the Childrens' Health Act (CHA) passed by the U.S. Congress last year. It has a number of provisions dealing with the use of restraints and seclusion in a wide variety of medical and non-medical settings; additionally, its reach extends beyond the interim final rule. A separate set of rules will be written for the CHA.

In order for the residential centers' rule to correspond to the language in the CHA, the rule would make it legal for a registered nurse or other licensed staff such as a licensed practical nurse to obtain a verbal order from a physician or "other licensed practitioner permitted by the state and the facility to order restraint or seclusion" to impose restraints. The physician or licensed practitioner who gave the verbal order would have to verify by signature that they gave the order.

The change was also motivated by allegations of a psychiatrist shortage. Psychiatrists are frequently not on the premises and sometimes are not available by telephone. One official at the American Psychiatric Association, who did not want to be identified, noted that Medicaid reimbursement for psychiatrists has nose-dived in the recent past.

Other changes seem to just be common sense. For example, there would be a change making clear that a health care professional could briefly hold a child for the purpose of comforting them without that action being called "a personal restraint." The same applies for instances in which a nurse or other employee holds a resident's arm in order to escort the patient from one room to another.

Nick Meyers, deputy director of congressional relations for the APA, told Psychiatric Times that the APA appreciated Thompson's efforts to bring some common sense to the interim final rule. The APA will be submitting formal comments, which were not available at press time.

Meyers also noted that the APA wants the Bush administration to bring more consensus to the differing federal rules that touch on restraints and seclusion. The APA is particularly unhappy with the "conditions of participation" interim final rule, which was effective in August 1999, for hospitals that want to participate in Medicare or Medicaid.

One of its most objectionable provisions requires psychiatrists to visit a patient within one hour of ordering restraints. There is no corresponding provision in the interim final rule applying to children's residential facilities, nor did HCFA address the issue when it proposed changes to the interim final rule. Meyers said that the APA's primary objection to the one-hour requirement is that it is a "clinical standard written by federal regulation."