New, Stricter CMS Requirements For Physical Restraints Have Facilities in a Bind

Health care facilities who use physical restraints or seclusion in patient treatment will be subject to stricter training requirements and higher standards, according to a new final rule issued by the Centers for Medicare and Medicaid Services (“CMS”). Published on December 8, 2006 the rule finalizes the Patients’ Rights Condition of Participation applicable to all Medicare- and Medicaid- participating hospitals and contains standards that ensure minimum protections of each patient’s physical and emotional health and safety. The regulations in the final rule are effective January 8, 2007.

The 52-page rule responds to public comments on potential violations of Patients’ Rights by improper use of restraints or seclusion. It revises and refines the interim final rule published on July 12, 1999. In the preamble to that interim final rule, CMS explained that it was considering adopting a consistent restraint and seclusion standard that would apply not only to hospitals but to all health care entities which participate in the Medicare or Medicaid programs. CMS asked the public whether it should apply the standards in the interim final rule, or whether it should apply more stringent standards. The large majority of comments supported more stringent standards applied uniformly to all participating providers.

CMS considered the comments and ultimately decided that a detailed, technical approach that would create an identical standard for all providers would not be appropriate. However, it responded to concerns that beneficiaries were receiving care in facilities where no regulatory protections currently exist regarding the use of restraints or seclusion. Because the Patients’ Rights concept applies universally, so too should those patients have protections against improper use of restraints and seclusion. In short, the final rule incorporates the following changes:

• Imposes higher standards for staff training, more frequent training intervals, and specific content and techniques of the training program.
• Facilities must present potential patients/residents or their representatives a formal Notice of Patients’ Rights upon admission.
• Broadens the categories of health care practitioners qualified to conduct patient evaluations when seclusion or restraints have been used. Under the final rule, registered nurses and physician assistants may conduct such evaluations in consultation with the treating the physician.
• Establishes stricter reporting requirements for deaths associated with the use of seclusion or restraint (e.g., detailed report must be made within one week).

The final rule may be found at (December 8, 2006), and will be codified at 42 C.F.R. 482.13. 71 Federal Register 71378

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This article is a part of the Legal News: Senior Living & Long-Term Care Winter 2007 Newsletter.