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Momentum Continues As Senate Committee On Finance Conducts Public Hearing On Use Of Restraint And Seclusion
Federal Action Alert

For Immediate Release, 27 Oct 99
Contact: Chris Marshall

On October 26, the Senate Committee on Finance, chaired by Senator William Roth (R-DE), conducted a hearing on the use of restraint and seclusion in psychiatric treatment facilities. This is the second Senate Committee hearing on this topic this year. In April, the Senate Committee on Appropriations, Subcommittee on Labor-HHS-Education, chaired by Senator Arlen Specter (R-PA), conducted a hearing. The Appropriations Committee hearing was reviewed by NAMI E-News #99-113 of April 13, 1999. The Finance Committee hearing keeps Congressional attention focused on this issue and builds momentum toward enactment of legislation to promote the appropriate use of restraint and seclusion. Also attending the hearing was Senator Daniel Patrick Moynihan (D-NY).

The first panel of witnesses were Senators Christopher Dodd (D-CT) and Joseph Lieberman (D-CT), who explained why they had sponsored legislation to prevent death and serious injury resulting from restraint and seclusion (R/S). They explained that their legislation (S. 736 and S. 750) would require psychiatric treatment facilities to use the same national standards as nursing homes have been required to use since 1987; physicians and licensed independent practitioners would be responsible for ordering and documenting their decisions to use R/S; better staffing levels and training would be required; and deaths must be reported to state agencies designated by the U.S. Department of Health and Human Services (HHS). In his testimony, Senator Lieberman cited NAMI as one of several national associations endorsing the legislation.

Attached is NAMI's press statement released at the Senate hearing.

The second panel of witnesses were Mike Hash, Deputy Administrator, Health Care Financing Administration (HCFA), the agency which administers the Medicare and Medicaid programs, and Leslie Aronovitz, Associate Director, Health Financing and Public Health Issues, General Accounting Office (GAO), the investigative arm of the U.S. Congress. It was at the October 1 press conference releasing the GAO report on restraints and seclusion that Senator Roth announced his intention to conduct public hearings. Today, Senators Dodd and Lieberman cited the GAO report. In his introductory remarks, Senator Roth said that GAO report had documented that this was a "most important and tragic matter." The GAO report was summarized in NAMI E-News #00-43 of October 1, 1999.

Mr. Hash stated that HCFA was "profoundly disturbed by the reports of deaths and injuries resulting from the inappropriate use of seclusion and restraints in mental health facilities. We strongly agree with patient advocates that use of seclusion and restraints must be recorded, reported, and always a last resort." Further, R/S "is an emergency measure reserved for unanticipated, severely aggressive or destructive behavior that places the patient or others in imminent danger." Mr. Hash reviewed the HCFA regulations governing R/S use in Medicare and Medicaid funded hospitals. [Refer to NAMI E-News #00-04 of July 9, 1999 for a summary of these regulations.]

The advocate community was delighted to hear Mr. Hash declare that HCFA is "considering regulations defining 'serious injuries' related to seclusion and restraints for which reporting should be mandatory." The advocates were disappointed to hear that HCFA regulations governing the use of R/S in child residential treatment centers (RTCs) and other non-hospital settings would be issued next Spring. Mrs. Gore had announced on June 25 that such regs would be issued "by the end of the year." Mr. Hash also announced that HCFA is working with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) "to improve its performance in monitoring use of " R/S, including greater use of "random surveys."

Ms. Aronovitz commended HCFA for its work but declared that "We believe that more can be done to ensure that Medicare and Medicaid patients with mental illness or mental retardation are protected from improper seclusion and restraint and from injuries and death." GAO concluded that "restraint and seclusion can be reduced through regulation, reporting, staffing, and training." GAO commended the efforts of Delaware, Massachusetts, New York, and Pennsylvania. GAO also concluded that "reporting requirements are central to lowering restraint use and improving patient safety."

Senator Roth asked HCFA about the one hour face-to-face assessment of patients requiring restraints by physicans and licensed independent practitioners, the challenegs faced by rural facilities, and whether standards are necessary in all treatment facilities. To GAO, Senator Roth observed that hospitals want voluntary reporting only and whether GAO agreed? Ms. Aronovitz said GAO did not agree, that mandatory reporting, such as that used in New York, was necessary. Senator Roth also questioned HCFA about the adequacy of payment for physician emergency visits to authorize R/S.

The last witness panel was very interesting because of the contrasts in views shared by the witnesses. Laura Prescott, founder and director of Sister Witness, described her personal experiences of being restrained and secluded many times during her life and the "shattering effects of these practices." It has been six years since she was last restrained but she still awakes at night frightened by these memories. Sister Witness is an organization of psychiatric ex-patients who have been both restrained and secluded as well sexually and physically abused.

To overcome the current culture of coercion against persons in inpatient psychiatric treatment, Ms. Prescott recommended assessment ahead of the event, cross training, external monitoring, and linkage with community resources while in the inpatient facility.

Terrace Johnson, M.S.W., the undercover reporter for the 60 Minutes II expose of the Charter Hospital in North Carolina, discussed how, in facilities across the nation, untrained workers with little or no supervision and little or no clinical involvement use authoritarian control for forcing patients to comply with facility rules. He also discussed his experience in restraint free facilities which emphasize compassionate care and trained staff. He criticized the "arnesnal of commands" used by untrained workers who insist that persons with mental illness act "normal" while they are in treatment programs.

The testimony of Ms. Prescott and Mr. Johnson was forcibly countered by Charles Riordan, M.D., Yale University and on behalf of the American Psychiatric Association (APA). Dr. Rordan declared that "the proposed legislation and new federal rules come precariously close to medicine by fiat." APA declared that "neither Congress nor HCFA should try to substitute laws or rules for the independent clincial judgement of physicians." Dr. Riordan declared that "we do not need medical standards in law."

APA has modified its public policy position. Previously opposed to any reporting other than completely voluntary reporting to JCAHO, at the Senate Finance Committee hearing APA endorsed mandatory uniform reporting of deaths to HHS. While all the previous witnesses declared that R/S should only be used for emergency safety measures, APA also said that R/S should be used for "interuptions in the treatment environment." Dr. Riordan also stressed the inadequacy of resources and reimbursement problems.

The fourth panel witness was Dennis Klima, President and CEO of Bayhealth Medical Center, with hsopitals in Dover and Milford, Delaware including a psych treatment program. He stressed that "health and safety" of patients is their number one concern and "out of control patients" threaten safety. Mr. Kilima emphasized how staff are trained to respond to emergencies in a safe and dignified manner with the overarching principle being to engage the patient and offer choices.

Mr. Klima opposed any legislation as overlapping existing regulatory requirements. He opposed HCFA's face-to-face evaluation of the patient within one hour of the initiation of R/S. He opposed it because "it seeks to replace a physician's medical judgement with a regulatory requirement." He opposed it because a face-to-face evalaution is not clinically necessary in every case. He advocated that the physican make decisions "over the phone through discusssions with the nurse or other caregiver who initiated the intervention within one hour." He declared: "At Bayhealth we trust our nurses to do their job well." He also said that the one-hour rule would "be expensive and difficult."


The restraints and seclusion legislation will not pass the Congress this year. NAMI members are encouraged to write their Congressional delegation and meet with them between now and January to express support for the legislation. NAMI continues to compile incidents of restraint and seclusion abuse in its report, "Cries of Anguish." NAMI members should send their stories of abuse and neglect to Bob Carolla in the Communication Department, NAMI, Colonial Place Three, 2107 Wilson Blvd., Suite 300, Arlington, VA 22201-3042.


Statement of Laurie Flynn, Executive Director
National Alliance for the Mentally Ill

We commend Senator William Roth (R-DE) for his prompt action in convening a hearing of the Senate Finance Committee following the release of the General Accounting Office (GAO) report on October 1, 1999 on the improper use of restraints or seclusion in psychiatric facilities.

It has been one year since The Hartford Courant published its investigative series, inspired by reports from NAMI Connecticut families, which documented 142 deaths around the country from such abuse during a ten year period. The Harvard Center for Risk Analysis further indicated that between 50 and 150 such deaths occur every year.

NAMI also has compiled Cries of Anguish, a summary of additional reports of abuse received since the Courant investigation-cited in the GAO Report-which includes over 40 incidents from 20 states. During one five month period, five deaths were reported-four of them of youths under the age of 18. And those are only the ones we know about.

Legislation has been introduced in Congress. After today, two Senate hearings will have been held. The Department of Health & Human Services has published regulations for Medicare and Medicaid funded hospitals and is in the process of developing regulations for residential treatment centers. In spite of HHS's regulatory initiatives, there still are no consistent national regulations governing restraint and seclusion use in all facilities providing psychiatric treatment. The GAO has confirmed what many of us already knew over a year ago.

Not only is the current system broken-but indeed, there is no system. Most importantly, no comprehensive reporting system exists. It is both a national disgrace and a national crisis. Literally, people are dying. Others are being physically injured. Others are being psychologically scarred for life.

People will not be fully protected unless Congress passes a law to end the current system of horrors. Regulations are not enough, because too often, they are too easily changed. The issue today is not whether Congress should act, but when? How many more people must die before Congress acts? We hope this hearing will be used as a foundation for decisive action in the weeks ahead. NAMI calls on Congress to mandate the reporting of all deaths and serious injuries to state based legal entities which can investigate the circumstances of such incidents. Further, consumer and family facility monitoring groups should be put in place.