Pursuant to HHS’s request for comments on the interim final rule (Federal Register Vol. 64, No. 127) regulating the use of seclusion and restraints in Medicare and Medicaid financed hospitals, CWLA submitted the following to the Health Care Financing Administration.

August 26, 1999

Health Care Financing Administration
Department of Health and Human Services
Attention: HCFA-3018-IFC
P.O. Box 7517
Baltimore, Maryland 21207-0517

Re: HCFA-3018-IFC

Dear Sir or Madam:

The Child Welfare League of America (CWLA) is an association of more than 1,000 public and non-profit agencies that directly help three million at-risk children, youths and their families each year. Member agencies provide services for the prevention and treatment of child abuse and neglect as well as kinship care, family foster care, adoption services, youth development programs, residential group care, child day care, family centered practice, health and mental health care, and teen pregnancy and parenting programs.

CWLA is grateful for the attention to the use of seclusion and restraints and strongly supports the establishment of national standards to care safely and appropriately for children and young people. It is critical that regulations be thoughtfully developed. It is necessary to respond to abuses in the use of seclusion and restraints without undermining practices critical to insuring the safety and well-being of residents and staff.

Because of the Department’s interest in expanding the seclusion and restraints standard to “other settings and services,” we wish to comment on their applicability to residential group care services for children.

CWLA strongly agrees that seclusion and restraints should never be used – in any setting – “as a means of coercion, discipline, convenience, or retaliation by staff.” Seclusion and restraints must only be used in emergency situations to protect the safety of the patient and others. We must do everything possible to reduce the need for seclusion and restraints. Yet, providers know that seclusion and restraints can save lives and prevent injuries.

CWLA’s Standards of Excellence for Residential Group Care Services consider residential group care to encompass an array of settings, including apartments, community-based group homes, campus-style facilities, self-contained group care settings, and secure facilities. All of these settings are based on a non-medical model and provide an appropriate mix of services including counseling, education, recreation, health, nutrition, daily living experiences, independent-living skills, reunification services, aftercare services, and advocacy. There is considerable state variation in terminology of these settings and instances of Medicaid participation.

Children coming into residential group care today have more complex and perplexing problems than ever before. The children currently in residential group care more often represent a greater danger to themselves and the community than in the past. They more often show violent behaviors, multiple diagnoses, severe learning disorders, and an increased frequency of alcohol and drug addiction.

Compounding the changes in the group care population are the effects of the deinstitutionalization movements which dramatically affected the juvenile justice, mental retardation, and mental health systems, and undoubtedly contributed to the growing number of referrals for child welfare services, including residential group care.

§482.13(f) Standard: Seclusion and restraint for behavior management

Physician only

Unlike hospitals, residential group care is based on a non-medical model and very purposely so. On the whole, residential group care is meant to provide children with a safe, nurturing, protective, therapeutic environment while addressing their unique educational, social, behavioral, developmental, medical and emotional needs. Residential group care is a less expensive, less restrictive environment than a hospital. Direct care workers are the primary care givers and physicians have little or no day-by-day, hour-by-hour involvement in the operation of the facility or the lives of the residents. Therefore, requiring (as some organizations urge) that only a physician be allowed to order the use of seclusion or restraints would be inappropriate. Because of liability concerns and given their current level of participation in such setting, physicians would be unwilling to take responsibility for such decisions. If physicians are required to have a greater level of involvement, then the nature of the setting will change dramatically. This will have very significant treatment and cost implications. Many of these children would be forced into other, more restrictive settings, including juvenile justice facilities and hospitals.

Physician or a licensed independent practitioner

Stating that the order to use seclusion or restraint can only be made by a “physician or a licensed independent practitioner” fails to insure that the responsible person will have the necessary and appropriate skills, knowledge and expertise. We urge that the standards designate the responsible person not by title but rather by a mastery of experience and knowledge in matters including behavior management, de-escalation, health concerns, restraint techniques, and use of seclusion and restraints.

Physical restraint

When “less restrictive interventions have been determined to be ineffective,” residential group care facilities most often use physical restraints to protect the safety of the resident or others. The definition of physical restraint under 482.13(f) is confusing and needs elaboration. The task you have set for yourselves is not an easy one: how do you distinguish a therapeutic hold from a physical restraint? Does a physical restraint include grabbing a five year old to prevent the child from running into the street? Or forcibly escorting a teenager away from a violent encounter with another resident?

There is no standard definition of physical restraint. We are unaware of any descriptions of any differences between physical escorts, standing restraints, sitting restraints, or prone/floor restraints. While it is difficult to address the myriad of dangerous situations and behaviors that confront residential group care residents and workers, a clear definition of physical restraint is necessary.

Emergency situations

An emergency situation must be defined to ensure not only the physical safety of the patient but the physical safety of others.

Education and training

The standard should go beyond requiring “ongoing education and training” for all staff who have direct patient contact to stipulate that the staff receive education and training prior to any direct contact with patients. In addition, the staff should receive annual, if not more frequent, training in the areas of behavior management, de-escalation, and the use of seclusion and restraints.

Many issues concerning effective and safe behavioral interventions remain unclear. Do they include preventive interventions, verbal interventions, early interventions, de-escalation techniques, and, when necessary, the physical management of children and youth who are exhibiting behaviors that place themselves and/or others at risk of physical harm? There is a critical need for the development of standards related to the quality, quantity, and frequency of orientation and training of those staff responsible for the implementation of behavioral intervention concepts and techniques.

CWLA is working with others toward the goal of establishing a licensing/certification/ credentialing standard for direct care workers. The lives of vulnerable children, youths and families are too important to entrust to the hands of people who, while usually well-intended, are also unskilled. The direct care worker is an important, and perhaps for many children the most important, person in changing their lives. The development of high professional standards, along with a system for imparting these standards and skills, guaranteeing consistency in qualifications, and evaluating the results, is long overdue.

The Child Welfare League of America looks forward to working with the Department of Health and Human Services and others toward these critical goals.

Thank you for consideration of our comments.

Shirley Marcus Allen
Acting Co-Executive Director