Blog Topic

03/27/2008 

The Associated Press has reported that the use of physical restraints on nursing home patients declined nearly 40 percent nationally in recent years.  The article opines that the decline is the result of federal government, states and the nursing home industry placing greater emphasis on eliminating what once was a common practice.

According to the AP, about 5.9 percent of 1.5 million long-term patients were physically restrained repeatedly in 2006. That constitutes a drop from 9.7 percent in 2002.

Physical restraints include such things as bed rails, wheelchair belts, or even drugs.

The article noted that West Virginia was included in a list of states in which restraints were least frequently used, part of a group of 26 states that " outperformed the reporting states' average ... with a combined average rate of 3.0 percent in 2006," according to the nursing home data. States where physical restraints for nursing home patients were most frequently used in 2006 were: California, 13.4 percent; Arkansas, 13.2 percent; and Oklahoma, 11.5 percent.

Under federal law, "The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms."  42 C.F.R. § 483.13(a).

As for West Virginia Division of Health regulations, Title 64, Series 13 governs the use of restraints on patients.  Section 2.45, defines "restraint" as:

Any manual method or physical or mechanical device, material or equipment attached or adjacent to the resident's body that the person cannot remove at will and which restricts freedom from movement or normal access to one's body, or any drug used to limit movement by a resident or to limit mental capacity of a resident beyond the requirements of therapeutic treatment

Subsection 4.16.a. provides the specific circumstances under which a patient may be restrained:

4.16.a. General. Each resident shall be free from mental and physical abuse, and free from chemical and physical restraints except when the restraint is authorized in writing by a physician for a specified and limited period of time, except under emergency circumstances.

4.16.a.1. The restraint is necessary to protect the resident from injury to himself or others; or

4.16.a.2. The restraint is used as a therapeutic intervention or enabler for specified periods of time to attain and maintain the resident's highest practicable physical, mental or psychosocial well-being.

Subsections 4.16.b.1., 4.16.b.2, 4.16.b.3., 4.16.b.4., and 4.16.b.5. provide the protocol that must be followed before and during periods of restraint:

4.16.b.1.A. Before a resident is restrained, the nursing home shall conduct and document a comprehensive restraint assessment that includes:

4.16.b.1.A.1. Identifying the behaviors or clinical indications for why the resident may be a candidate for use of a restraint. The resident, and in the case of incapacity, the resident's legal representative, shall be involved throughout this process, as well as appropriate disciplines, as indicated based on the resident's needs;

4.16.b.1.A.2. Identifying the causal factors;

4.16.b.1.A.3. Identifying, assessing, and attempting restraint free interventions that are appropriate for the person; and

4.16.b.1.A.4. The following, if alternatives to restraints are not found to be practicable:

4.16.b.1.A.4.(a). A full explanation to the resident, and in the case of incapacity, the resident's legal representative, of the reasons for using the restraint, the benefits and risks of the restraint, and the obtaining of written consent from the resident, and in the case of incapacity, the resident's legal representative;

4.16.b.1.A.4.(b). Documentation that the use of the restraint will enhance the resident's quality of life and functional abilities and is clinically beneficial; and

4.16.b.1.A.4.(c). An assessment of the resident to identify the least restrictive type of restraint that will provide for the resident's needs.

4.16.b.2.A. After a comprehensive restraint assessment indicates the need for a restraint and the resident's attending physician concurs, the resident's attending physician shall write an order to be included in the resident's plan of care specifying the type, precise application, circumstances and duration of the restraint.

4.16.b.3. The resident's plan of care shall include, at a minimum:

4.16.b.3.A. The type and size of restraint that is to be used;

4.16.b.3.B. When the restraint is to be used;

4.16.b.3.C. For physical restraints, a schedule of release time and what individualized activity is to be provided during that period of time; and

4.16.b.3.D. A systematic and gradual process to reduce the restraint or eliminate it, or both.

4.16.b.4. Application. Nursing home staff shall apply the physical restraints in accordance with the manufacturer's instructions and in a manner to allow for quick release.

4.16.b.5. Monitoring and release. Nursing home staff shall directly monitor a resident who has been restrained at least every half hour and shall be released from the restraint at least every two (2) hours and provided exercise, toileting, and skin care.

The West Virginia provisions related to the use of restraints have been significantly reworked in the past couple of years.  Previously, the provisions constituted only a couple of paragraphs.  As you can see, they are now very detailed.

Interestingly, rarely do plaintiffs claim that a patient was illegally restrained.  Most often, an overture will be made that the patient could or should have been restrained as a means of preventing falls. In either case, it can potentially be a lose-lose situation for the health care provider.

- Jason Winnell

If you would like to speak with one of our attorneys regarding the use of restraints in health care facilities, or would like us to conduct a seminar for your employees, please feel free to contact Jason Winnell.