March 15, 2001
Ms. Michael McMullan
Acting Deputy Administrator
Health Care Financing Administration
Department of Health and Human Services
P.O. Box 8010
Baltimore, MD 21244
Attn: File Code HCFA-2065-IFC
Dear Ms. McMullan:
The Child Welfare League of America is the nation’s oldest and largest membership-based child welfare organization. We are committed to promoting the well-being of children, youth, and their families, and to protecting every child from harm. On behalf of our 1,165 member agencies and CWLA’s National Advisory Committee on Residential Care, we submit comments on the interim final rule on the use of restraint and seclusion in psychiatric residential treatment facilities for individuals under the age of 21. The rule was originally published in the Federal Register (Vol.66, No. 14) on January 22, 2001.
We find the rule’s requirements for training and reporting to be comprehensive as well as a positive step in the direction of reducing the use of restraint and seclusion. CWLA has long supported the need to provide funding and adequate training in the full range of behavior management techniques to reduce the use of restraint and seclusion. However, there are other requirements within the interim final rule that may have many unintended consequences.
First, we find the requirement to have a registered nurse on duty 24 hours a day impractical as well as economically unfeasible. Hospitals across the country are reporting difficulties recruiting and retaining registered nurses. Additionally, the funding of one nursing position in these child serving facilities represents approximately three (3) full-time direct care positions. The financial burden imposed by this rule will force facilities to close or to stop serving troubled children and youth altogether. We are deeply concerned that these children will be forced into other more restricted settings, such as juvenile justice facilities and hospitals. We believe rather than allocating funds for the hiring of registered nurses, who would be underutilized, it is better these funds be used to reduce the use of restraint and seclusion by providing better training and the hiring of additional direct care staff.
Second, we find the requirement that only a board-certified psychiatrist or physician with specialized training and experience in the diagnosis and treatment of mental diseases may order the use of restraint or seclusion to be impractical. Additionally, some states have a limited number of board-certified psychiatrists and some facilities are located in areas that may have limited access to both board-certified psychiatrists and physicians. Furthermore, the requirement that only a board-certified psychiatrist or physician with specialized training and experience in the diagnosis and treatment of mental diseases may order a restraint or seclusion is impractical, as this does not guarantee that they have the training, experience and expertise required to order a restraint or seclusion.
Third, although feedback from the provider community was sought, the interim final rule failed to reflect their comments in either the requirements or the comments sections.
Finally, while the attention to training and more qualified, better-prepared staff is laudable, the rule does not contain a directive that would allow Federal Title IV-E of the Social Security Act funds, or other federal funds, to be used to attract, prepare, or retain private agency staff. The burden of an additional “unfunded mandate” on an industry already strapped by a staffing crisis will jeopardize high quality agencies for children and youth.
For these reasons, CWLA is unable to support the interim final rule. We believe that the only solution is a re-consideration of the rule and its consequences. We are requesting that HCFA suspend the implementation of this rule and develop a process that includes the participation of all stakeholders in developing requirements that will not further jeopardize the safety and health of children and youth.
In response to our members’ needs, and to the recently passed law, the Children’s Health Act 2000, CWLA’s National Task Force is currently in the process of developing “Best Practice” Behavior Management Guidelines that should be used in development of appropriate requirements. The Guidelines will be published in September 2001. These Guidelines will serve as an effective tool for formulating appropriate requirements for the use of restraint and seclusion in psychiatric residential treatment facilities for individuals under the age of 21. Once the Guidelines are published, they will be used to assist states and providers in the development or revision of their restraint and seclusion standards and practices.
The Guidelines are being developed through a collaborative process. The Task Force is broadly representative of our members and others. Task Force and Review Committee members include the Mental Health Advocacy Coalition, national accrediting bodies, public and private providers/agencies, national organizations, national advisory committees, behavior management training organizations, the CWLA’s National Youth Council, as well as professionals from medicine, law enforcement, attorneys, legislators and other related professionals.
A final comment: the use of restraint and seclusion is a complex subject. While provider organizations are struggling to find more effective tools for managing the behavior of distressed children and youth, they are also faced with the dual task of recruiting and retaining staff. There is a growing national workforce crisis, which has resulted in an insufficient number of qualified staff to fill vacant positions. Because of the demanding nature of the work, and often non-competitive salaries and benefits, providers across the country are facing high staff turnover. In an area of work that is labor intensive, this can comprise the treatment and safety of children. If the workforce issue is not addressed, the concerns related to the use of restraint and seclusion will undoubtedly continue.
Thank you for the opportunity to provide comments. We look forward to working with you to assure the safety of children and youth.