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Home > Advocacy > Advocacy Archives > Seclusion and Restraints

 
 

Additional Memo from Shay Bilchik regarding Medicaid Amended Interim Final Rule

Medicaid Amended Interim Final Rule covering the Use of Restraint and Seclusion in Psychiatric Residential Treatment Facilities Providing Psychiatric Services to Individuals Under Age 21

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May 25, 2001

To follow-up on my memo of May 23, 2001, I wanted to provide you with a more detailed analysis of the interim final rule. As you know, the Health Care Financing Administration (HCFA) published in the May 22, 2001, Federal Register, an amended interim final rule for the use of restraints and seclusion in psychiatric residential treatment facilities that provide Medicaid's inpatient psychiatric services for individuals under age 21.

The amended rule attempts to address the concerns submitted in comments on the original interim final rule dated January 22, 2001 (66 FR 7148) by further clarifying which facilities are affected by the rule, revising the reporting requirements, and broadening the personnel requirements for those permitted to restrain and seclude residents. In addition, the amended rule requires any use of restraints and seclusion in a covered Medicaid psychiatric facility to be performed only on an order and under the supervision of a physician, a registered nurse, or other licensed practitioner, permitted by the state to issue orders. HCFA made these requirements consistent with those in the Children's Health Act of 2000 (P.L. 106-310), which mandates that restraints and seclusion only be applied by properly trained staff. Additionally, these requirements addressed the concerns regarding the shortage of personnel (e.g., registered nurses, and board-certified psychiatrists).

The following are modifications within the amended interim final rule:
  • Clarification in the Definition of Psychiatric Residential Treatment Facilities:

    The interim final rule applies to psychiatric residential treatment facilities that receive payment for providing the Medicaid inpatient psychiatric services benefit for individuals under age 21. The Medicaid inpatient psychiatric services benefit for individuals under age 21 may be provided in a psychiatric hospital (that meets the applicable hospital conditions of participation set forth in 42 CFR part 482) or in "another inpatient setting that the Secretary has specified in regulations" pursuant to section 1905 (h) of the Social Security Act. As set forth in the interim final rule, psychiatric residential treatment facilities are facilities that are not licensed as hospitals, but meet the requirements in 42 CFR part 441 subpart D, the requirements of 42 CFR part 483, subpart G, and have a provider agreement with the state Medicaid agency.

    A psychiatric residential treatment facility's payment for inpatient psychiatric services to individuals under age 21 includes compensation for the resident's room and board as well as a comprehensive package of services. This rule does not apply to other providers that receive Medicaid compensation on a service-by-service basis and do not receive Medicaid payment for the individual's room and board. An example would be a facility receiving Medicaid payment for outpatient rehabilitation services.

    If a facility is still uncertain whether or not this rule applies, it should contact the state Medicaid agency regarding the applications of these regulations.

  • Section 483.352 Definition for "Personal Restraint"

    In Sec. 483.352, the amended rule added a clarifying statement that "personal restraint" does not include brief holding without undue force a resident in order to calm or comfort him or her, or holding a resident's hand to safely escort him or her from one area to another.

    The revised language for "personal restraint" addresses the concerns related to the broadness of the original definition.

  • Section 483.358 Orders for the Use of Restraint or Seclusion

    In Sec. 483.358, the amended rule states that orders for restraint or seclusion must be by a physician, or other licensed practitioner permitted by the state and the facility to order restraint or seclusion and trained in the use of emergency safety interventions.

    The modifications to the order for restraint or seclusion addresses the issues related to staff shortage and it broadens the personnel allowed to order restraint or seclusion, as well as create language, which is consistent with the Children's Health Act of 2000. Additionally, the amended requirement places the responsibility on the state and facility to identify "other licensed practitioner." However, the State Medicaid agency will need to define who qualifies as a licensed practitioner. Furthermore, the State Medicaid agency should work collaboratively with facilities to assure that the personnel identified will not negatively impact practice.

    In Sec. 483.358 (b), the amended rule states that if the resident's treatment team physician is available, only he or she can order restraint or seclusion.

    The amended requirement mandates that when the resident's treatment team physician is available that only he or she can order the restraint. However, when the treatment team physician is not available, it allows for another physician or "other licensed practitioner" permitted by the state and facility to order restraint and seclusion who is trained in the use of emergency safety interventions.

    In Sec. 483.358 (c), the amended rule states that a physician or other licensed practitioner permitted by the state and the facility to order restraint or seclusion must order the least restrictive emergency safety intervention that is most likely to be effective in resolving the emergency safety situation based on consultation with staff.

    The amended language speaks to the concern of always having to implement a least restrictive intervention prior to ordering restraint or seclusion. The amended requirement allows for the most appropriate intervention based on the emergency situation and consultation with staff.

    In Sec. 483.358 (d), the amended rule states that if the order for restraint or seclusion is verbal, the verbal order must be received by a registered nurse or other licensed staff, such as a licensed practical nurse. The physician or other licensed practitioner permitted by the state and the facility to order restraint or seclusion must verify the verbal order in a signed written form in the resident's record. The physician or other licensed practitioner permitted by the state and the facility to order restraint or seclusion must be available to staff for consultation, at least by telephone, throughout the period of the emergency safety intervention.

    The revised language requires verbal orders for restraint and seclusion to be received by a registered nurse or "other licensed staff." Additionally, it does not define who is "other licensed staff" or who makes that determination. Although, the physician or "other licensed practitioner" would not be required to be physically at the facility, it does require at a minimum telephone contact with the facility's staff for the duration of the emergency intervention.

    In Sec. 483.358 (f), the amended rule states that a physician or "other licensed practitioner trained in the use of emergency safety interventions, and permitted by the state and the facility to assess the physical and psychological well-being of residents" must conduct a face-to-face assessment of the physical and psychological well being of the resident within 1 hour of the initiation of the emergency safety intervention.

    The amended requirement broadens the personnel that are allowed to conduct a face-to-face assessment of the resident by extending the personnel to include "other licensed practitioners."

    In Sec. 483.358, paragraphs (g) (1), (g) (3) and (j), the amended rule included "other licensed practitioner permitted by the state and the facility to order restraint or seclusion."

  • Section 483.360, Consultation with Treatment Team Physician

    In Sec. 483.360, the amended rule states that if a physician or other licensed practitioner permitted by the state and facility to order restraint or seclusion orders the use of restraint or seclusion, the resident's treatment team physician must be contacted, unless the ordering physician is in fact the resident's treatment team physician.

    The revised language mandates that if a physician or licensed practitioner that is not the treatment team physician orders restraint or seclusion, that the treatment team physician be contacted. However, it does not specify a time limit for contacting the team physician. Also, this amendment requires the treatment team physician to be contacted after each restraint or seclusion.

  • Section 483.362 Monitoring of the Resident In and Immediately After Restraint

    In Sec. 483.362 (b), the amended rule states that if the emergency safety situation continues beyond the time limit of the order for the use of restraint, a registered nurse or other licensed staff, such as a licensed practical nurse, must immediately contact the ordering physician or other licensed practitioner permitted by the state and the facility to order restraint or seclusion receive further instructions.

    The amended mandate requires a registered nurse or "other licensed staff" to immediately contact the ordering physician or "other licensed practitioner," if a safety situation continues beyond the time line of the order for restraint.

    In Sec. 483.362 (c), the amended rule states that a physician, or other licensed practitioner permitted by the state and the facility to evaluate the resident's well being and trained in the use of emergency safety interventions, must evaluate the resident's well-being immediately after the restraint is removed.

    The amended language mandates that a physician or "other licensed practitioner" evaluates the resident's well being immediately after each restraint.

  • Section 483.364 Monitoring of the Resident In and Immediately After Seclusion

    In Sec. 483.364 (c), the amended rule states that if the emergency safety situation continues beyond the time limit of the order for the use of seclusion, a registered nurse or other licensed staff, such as a licensed practical nurse, must immediately contact the ordering physician or other licensed practitioner permitted by the state and the facility to order restraint or seclusion to receive further instructions.

    The amended mandate requires a registered nurse or "other licensed staff" to immediately contact the ordering physician or "other licensed practitioner," if a safety situation continues beyond the time line of the order for seclusion.

    In Sec. 483.364 (d), the amended rule states that a physician, or other licensed practitioner permitted by the state and the facility to evaluate the resident's well-being and trained in the use of emergency safety interventions, must evaluate the resident's well-being immediately after the resident is removed from seclusion.

    The amended language mandates that a physician or "other licensed practitioner" evaluate the resident's well-being immediately after each seclusion.

  • Section 483.374 Facility Reporting

    In Sec. 483.374, the amended rule added a new paragraph (c) to require that facilities report the death of any resident to the Health Care Financing Administration (HCFA) regional office.

    The amended requirement broadens the facility's responsibility of reporting each serious occurrence (death and serious injuries) to both the State Medicaid agency and, unless prohibited by State law, the State-designated Protection and Advocacy System, to include the reporting of each death to HCFA. This change was made to ensure that HCFA has sufficient timely information to identify threats to beneficiaries' health and welfare.

    In Sec. 483.374 (a) (1), the amended rule does not extend the date that facilities with a current provider agreement with the Medicaid agency must provide its attestation to the State Medicaid agency. The date for providing the attestation remains July 21, 2001.

    The major obstacles still facing facilities is the pending definition for who qualifies as "other licensed practitioner" and "licensed staff," as well as the amended requirement which mandates that facilities provide 24-hour onsite coverage by a registered nurse or "other licensed practitioner." Depending on who qualifies as "other licensed practitioner," the requirement for 24-hour onsite coverage could be greatly increased or reduced.

    The amended interim final rule took effect on its publication date of May 22, 2001. HCFA will consider comments regarding the amended rule if received at the address below, no later than 5 p.m. on July 23, 2001.
Address: Mail written comments (one original and three copies) to the following address ONLY: Health Care Financing Administration, Department of Health and Human Services, Attention: HCFA-2065-IFC2, P.O. Box 8010, Baltimore, MD 21244-8010.

Further Information

To view a complete copy of the amended interim final rule go to http://www.access.gpo.gov/su_docs/aces/aces140.html, type in 02/22/2001 and the search term "restraint." CWLA's March 15 comments to HCFA and Part H and I of the Children's Health Act of 2000 may be viewed at http://www.cwla.org/advocacy/seclusionrestraints.htm.

Please contact Lloyd B. Bullard at 202/942-0280 or e-mail: lbullard@cwla.org with any questions you may have regarding the amended interim final rule.


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