Restraint and Seclusions
Statutes and Regulations

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Page last updated: 02/28/08

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Overview

The federal statutes regarding seclusion and restraint for facilities funded in whole or in part by Medicaid or Medicare are found in the Children’s Health Act of 2000 (“CHA”), 42 U.S.C. § 290ii et seq. The CHA incorporated many different health bills. Facilities that fail to comply with the requirements in the CHA are not eligible for Medicaid or Medicare.

The Centers for Medicare and Medicaid Services (CMS) of the U.S. Department of Health and Human Services (HHS) has issued regulations regarding seclusion and restraint. These regulations are called “Conditions of Participation (CoPs).” CoPs serve as the basis of survey activities for the purpose of determining whether a facility qualifies for a provider agreement under Medicare or Medicaid. There is a set of CoPs for each type of provider or supplier subject to certification. Providers must meet the applicable CoPs for them to be able to provide and continue to provide Medicare and Medicaid benefits. (See CMS Survey and Certification Enforcement Overview).

The CoPs for hospitals, psychiatric residential treatment facilities for individuals under age 21, intermediate care facilities for individuals with mental retardation (ICF/MR) and long-term care facilities. The CoPs for hospitals, ICF/MRs and nursing homes were issued before the enactment and effective date of the CHA and have not been updated. The CoPs for PRTFs were issued after the enactment and effective date of the CHA.

The federal statutes regarding seclusion and restraint for non-medical community-based facilities for children and youth can be found at 42 U.S.C. § 290jj et seq. The statute states that regulations must be issued within 6 months of October 17, 2000. As of April 15, 2006, the Center for Mental Health Services (CMHS) has still not issued these regulations. As a result, there is no definition of “non-medical community-based facilities for children and youth.” CMHS, however, has informed NDRN that “non-medical community based facilities for children and youth are non-medical residential facility for children and youth that receive Public Health Service Act funds, e.g. funding from the National Institute of Health, the Center for Disease Control, the Health Resources Service Administration, or the Substance Abuse and Mental Services Health Administration are found at 42 U.S.C. § 290jj et seq.

Federal Statute

Childrens’ Health Act of 2000 (Part H) Requirements relating to the Rights of Certain Residents in Facilities (applies to Medicaid and Medicare-funded facilities)

42 U.S.C. § 290ii Requirement relating to the Rights of Certain
Residents in Facilities (requirements and definitions)
[ FINDLAW][ WESTLAW]

42 U.S.C. § 290ii-1 Reporting requirement
[ FINDLAW][ WESTLAW]

42 U.S.C. § 290ii-2 Regulations and Enforcement
[ FINDLAW][ WESTLAW]

Regulations (Conditions of Participation)

• Hospitals (effective 12/8/06)

  • Final Rule – Hospital Conditions of Participation Patients’ Rights (42 CFR 482.13; 71 FR 71377)

  • Summary of Final Rule – Hospital Conditions of Participation (Patient Rights)12-29-06)

  • CMS State Operations Manual, Chapter 5, Section 5140 (Effective 3/17/06)( CMS regional office [RO] must notify appropriate state P&A system within 2 days of RO’s receipt of seclusion/restraint death report (§ 5140.4). http://www.cms.hhs.gov/manuals/downloads/som107c05.pdf

  • Memoranda to P&As on CMS Reports of Restraint-related Hospital Deaths -- describes reporting to P&As under CMS's Patient Protection regulations and recommended P&A follow up activities (8/00)

  • Hospital Reporting of Deaths related to Restraint and Seclusion, prepared by the Dept. of Health and Human Services Office of Inspector General (Sept 2006)

  • Testimony of American Hospital Association on Restraint and Seclusion and the "One Hour Rule" (October 29, 2005)(demonstrates the arguments used by those opposing the one-hour rule; advocates for nurses rather than MD)

• Psychiatric Residential Treatment Facilities for Individuals under 21 (issued on 1/21/001 after CHA)

• New!) State-by-state list of PRTF facilities identified by CMS as of 4/20/06

• Definition of PRTF : 42 C.F.R. 441.151(a) [[ GPO Access][ WESTLAW]

• Regulation: Interim Final Regulation (effective 5/22/01) 42 C.F.R. Part 483, Subpart G (§§ 483.350-.376) [ GPO Access][ WESTLAW]

• CMS Comments : 66 F.R. 7148 [GPO Access] [WESTLAW] and amendments 66 FR 28110-28117 [GPO Access]][ WESTLAW]
  

• Interpretive Guidance by Centers for Medicaid and Medicare Services (CMS)

  • What is a PRTF? (undated) http://www.cms.hhs.gov/CertificationandComplianc/downloads/WhatisaPRTF.pdf

  • Psychiatric Residential Treatment Providers – Basic Information (– undated) http://www.cms.hhs.gov/CertificationandComplianc/13_PRTFs.asp
    

• Reporting Requirements : Use of Restraint and Selcusion in Psychiatric Treatment Facilities providing Inpatient Psychiatric Services to Individuals under age 21 (6/1/01 Letter from CMS Director of Survey and Certification Group to Associate Regional Administrators, Division of Medicaid and State Operations, Regions I-X) http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter01-019.pdf
  

• Attestation Requirement . CMS Letter to State Medicaid Directors regarding Requirement that PRTFs Attest to State Medicaid Agency that they are in Compliance with Seclusion and Restraint Conditions of Participation (SMDL #01-023)(July 11, 2001) http://www.cms.hhs.gov/smdl/downloads/smd071101.pdf
  

• Enforcement CMS Directive to State Survey Agencies on Enforcement of Restraint and Seclusion Regulations for Psychiatric Residential Treatment Facilities for Persons under 21 (12-11-03 Letter from Director of Survey and Certification Group to State Survey Agency Directors) http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter04-13.pdf

• Responsible State Agency for Surveying Residential Treatment Facilities (7/14/05) Letter from Director of Survey and Certification Group of CMS to State Survey Agency Directors)(SC-05-37) http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter05-37.pdf

• Intermediate Care Facilities for Individuals with Mental Retardation

• 42 C.F.R. Subchapter G, Part 483, Subchapter G, Part 483, Subpart I (§§ 483.400 - .480) [GPO Access][ WESTLAW]

• Long-term Care Facilities

  • 42 C.F.R. § 483.13 [GPO Access][ WESTLAW]

Children’s Health Act (Part I) Requirement relating to the Rights of Residents of Certain Non-Medical Community-Based Facilities for children and Youth

42 U.S.C. § 290jj Requirement relating to the Rights of residents of certain non-medical community-based facilities for youth and children [ FINDLAW][ WESTLAW]

42 U.S.C. § 290jj-1 Reporting requirement [ FINDLAW][ WESTLAW]

42 U.S.C. § 290jj-2 Regulations and enforcement [ FINDLAW][ WESTLAW]

Regulations: The Secretary of Health and Human Services has not issued regulations yet, even though the statute requires the Secretary to issue regulations within 6 months of October 17, 2000. Therefore, they are more than 5 years overdue.