Memo from Shay Bilchik on Recently Passed Language on Restraints and Seclusion
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A March 1998 Hartford Courant investigative series on the death of an 11 year old boy in a Connecticut psychiatric hospital prompted public interest and congressional concern about the use of restraints and seclusion. This lead to the introduction of several legislative proposals. This September, both the House and Senate approved final legislation on this issue. President Clinton is expected to sign this into law soon.
Over the last year, the Senate had previously approved two earlier proposals addressing the use of restraints and seclusion. These earlier proposals extended a provision for nursing homes to cover people with a variety of conditions, from birth to death, in medical facilities as well as nonmedical facilities that provide behavioral health care. They would have required a doctor or other licensed professional to provide a written order for the use of very broadly defined restraints and seclusion in all types of residential facilities. We believe that this language, while possibly appropriate for hospitals and maybe adults, could have seriously affected the lives of thousands of children in community-based facilities.
CWLA strongly believes that, however well-intended, it is inappropriate to legislate child welfare practice. The complexities of providing services to children and young people do not lend themselves to precise federal specifications. In this particular instance of abuse in the use of restraints and seclusion, there was great political momentum to devise a "quick fix" solution to address the injuries and deaths of young people in care. It was quite clear that Congress would take action.
CWLA and our member agencies worked hard with members of Congress, mental health advocate groups, and provider organizations to achieve a thoughtful response to the problem. We were successful in reminding Congress of the unique needs of the children our member agencies serve and the importance of community-based, nonmedical providers. CWLA convinced legislators that the key to appropriate behavior management is the training of the direct care workers who have the day-by-day, hour-by-hour involvement in the lives of the children. These concerns are reflected in the final bill (H.R. 4365), the Children's Health Act of 2000.
Improvements in Final Language
The final legislation reflects improvements from earlier proposals.
- Establishes a new section of the bill to specifically address the circumstances of nonmedical, community-based facilities for children and youths.
- Removes "residential treatment center" from the mandates for health care facilities that require a physician or other licensed practitioner to provide a written order for the use of restraints and seclusion.
- Emphasizes that restraints and seclusion in nonmedical, community-based facilities for children and youths will only be imposed in emergency circumstances to ensure the physical safety of the resident and others.
- Ensures that the person imposing restraints and seclusion in nonmedical, community- based facilities for children and youth will have the necessary and appropriate skills, knowledge, and expertise to safely initiate the behavior management.
- Redefines physical restraints to not include physical escorts.
- Redefines seclusion to not include time out.
- Recognizes the importance of a trained and certified staff.
The law leaves many issues to be further clarified in regulation by the U.S. Department of Health and Human Services. These issues include:
Within 6 months following the President's signature of this bill, HHS is required to develop licensing rules and monitoring requirements concerning behavior management practice. As you may know, CWLA is convening a national advisory board to develop best practice guidelines for behavior management. It is our hope that this effort will better inform the work of the federal government.
- Specifying for health care facilities what constitutes "emergency circumstances" that do not require the written order of a physician or other licensed practitioner.
- Defining "non-medical, community-based facility for children and youth."
- Defining a state-recognized body that will train and certify staff in behavior management.
- Determining for the interim period the nature of a face-to-face assessment on the mental and physical well-being of the child or youth being restrained or secluded.
CWLA and its member organizations were instrumental in developing the final language in the bill, which recognizes nonmedical, community-based facilities and more appropriately defines "restraints" and "seclusion." CWLA believes that these changes will promote sound practices critical to ensuring the safety and well-being of children and staff.
This is an ongoing issue. We hope you will assist us in the development of the HHS regulations and that you will continue to share your concerns about practice and policy with us. We will focus our efforts on helping agencies respond as this legislation plays out in funding and licensing at the local level.
We look forward to continuing to work with you.
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