I

106TH CONGRESS

1ST SESSION H. R. 1313

To amend title XI of the Social Security Act to restrict the use of physical

and chemical restraints and seclusion in certain facilities receiving Medicare or Medicaid funds, to require recording and reporting of information

on that use and on sentinel events occurring in those facilities, and

for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 25, 1999

Ms. DEGETTE (for herself, Mr. STARK, Ms. DELAURO, Mrs. MORELLA, Mr.

WAXMAN, Ms. KILPATRICK, Mr. GEORGE MILLER of California, Mr.

BROWN of Ohio, Mr. SANDERS, Mr. LANTOS, Mr. MARTINEZ, Ms. EDDIE

BERNICE JOHNSON of Texas, Mr. RANGEL, Mr. CROWLEY, Mrs. CAPPS,

Ms. PELOSI, Mr. FORD, Mr. MCGOVERN, Mr. WYNN, Ms. SCHAKOWSKY,

Mr. CUMMINGS, and Ms. BERKLEY) introduced the following bill; which

was referred to the Committee on Ways and Means, and in addition to

the Committee on Commerce, for a period to be subsequently determined

by the Speaker, in each case for consideration of such provisions as fall

within the jurisdiction of the committee concerned

A BILL

To amend title XI of the Social Security Act to restrict

the use of physical and chemical restraints and seclusion

in certain facilities receiving Medicare or Medicaid funds,

to require recording and reporting of information on

that use and on sentinel events occurring in those facilities, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Patient Freedom from

3 Restraint Act of 1999’’.

4 SEC. 2. LIMITATION ON USE OF PHYSICAL AND CHEMICAL

5 RESTRAINTS AND SECLUSION IN CERTAIN

6 MEDICARE OR MEDICAID FUNDED TREAT7 MENT FACILITIES.

8 (a) IN GENERAL.—Part B of title XI of the Social

9 Security Act is amended by adding at the end the fol10 lowing new section:

11 ‘‘LIMITATION ON USE OF RESTRAINTS AND SECLUSION IN

12 CERTAIN MEDICARE AND MEDICAID FUNDED TREAT13 MENT FACILITIES

14 ‘‘SEC. 1164. (a) FREEDOM FROM RESTRAINTS AND

15 SECLUSION.—As a condition of participation or receipt of

16 funds under the medicare program under title XVIII or

17 under a State medicaid program under title XIX, a cov18 ered facility (as defined in subsection (b)) shall—

19 ‘‘(1) protect and promote the right of each resi20 dent or patient to be free from physical or mental

21 abuse, corporal punishment, involuntary seclusion,

22 and any physical or chemical restraints (as defined

23 in subsection (g)) imposed for purposes of discipline

24 or convenience;
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1 ‘‘(2) meet the requirements of subsection (d)

2 (relating to recording and reporting on the use of re3 straints and seclusion and sentinel events);

4 ‘‘(3) provide for annual training of all staff with

5 direct resident or patient care responsibility on the

6 proper use of restraints and seclusion, their alter7 natives, and techniques and methods to identify and

8 defuse potential emergency situations; and

9 ‘‘(4)(A) make available to each resident or pa10 tient, and to the guardian of each such resident or

11 patient, a statement of their rights to freedom from

12 restraints and seclusion as required by this section

13 and information on the purpose of the appropriate

14 protection and advocacy agencies (as defined in sub15 section (g)(4)) and their addresses and telephone

16 numbers; and

17 ‘‘(B) clearly and conspicuously post such infor18 mation in the facility.

19 ‘‘(b) COVERED FACILITY DEFINED.—For purposes

20 of this section, the term ‘covered facility‘ means any of

21 the following:

22 ‘‘(1) A facility that provides inpatient or resi23 dential psychiatric treatment or treatment of mental

24 illness (including a psychiatric hospital, as defined in
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1 section 1861(f), and an institution for mental dis2 eases, as defined in section 1905(i)).

3 ‘‘(2) An intermediate care facility for the men4 tally retarded (as defined in section 1905(d)).

5 ‘‘(3) A facility that provides residential treat6 ment for children.

7 ‘‘(c) REQUIREMENTS RELATING TO RESTRAINTS AND

8 SECLUSION.—

9 ‘‘(1) GENERAL LIMITATIONS.—

10 ‘‘(A) IN GENERAL.—A covered facility may

11 only impose restraints and seclusion—

12 ‘‘(i) to ensure the immediate physical

13 safety of the resident or patient or others;

14 and

15 ‘‘(ii) only upon the written order of a

16 physician that specifies the duration (not

17 to exceed 2 consecutive hours) and cir18 cumstances under which the restraints and

19 seclusion are to be used.

20 ‘‘(B) EMERGENCY EXCEPTION.—Subpara21 graph (A)(ii) shall not apply in emergency cir22 cumstances specified by the Secretary during

23 the period before a written order can reasonably

24 be obtained.
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1 ‘‘(2) PROHIBITION OF USE OF STANDING OR2 DERS.—Written orders for such restraints or seclu3 sion shall never be written as a standing order.

4 ‘‘(3) USE AS LAST RESORT.—A covered facility

5 may only use restraints and seclusion as an emer6 gency safety measure and as a last resort and only

7 after other less restrictive approaches have failed.

8 ‘‘(4) LEAST RESTRICTIVE MANNER.—A covered

9 facility shall use restraints and seclusion only in the

10 least restrictive manner possible, to protect the resi11 dent or patient or others from harm, and must re12 move or end restraints and seclusion at the earliest

13 possible time.

14 ‘‘(5) NO SIMULTANEOUS USE.—A covered facil15 ity may not use restraints and seclusion simulta16 neously.

17 ‘‘(d) RECORDING AND REPORTING REQUIRE18 MENTS.—In accordance with the protocol established

19 under subsection (e)(1)—

20 ‘‘(1) RECORDING USES OF RESTRAINT AND SE21 CLUSION IN PATIENT RECORDS.—

22 ‘‘(A) IN GENERAL.—Each covered facility

23 shall record and maintain, as part of a resi24 dent’s or patient’s medical record, the following

25 information on each incident in which restraints
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1 or seclusion are used with respect to a resident

2 or patient of the facility:

3 ‘‘(i) The uses of restraint and seclu4 sion, including the type of restraint or se5 clusion used and the time and duration of

6 its use.

7 ‘‘(ii) The rationale for restraint or se8 clusion and types of less restrictive alter9 natives that were tried or considered.

10 ‘‘(iii) Evidence of treatment planning

11 to reduce the probability of future inci12 dents that would lead to use of restraint or

13 seclusion.

14 ‘‘(B) AVAILABILITY TO P&A AGENCIES.—

15 Each covered facility shall make available the

16 information recorded under subparagraph (A)

17 for inspection by staff of the appropriate pro18 tection and advocacy agencies.

19 ‘‘(2) SUBMISSION OF PERIODIC REPORTS ON

20 OVERALL USE OF RESTRAINTS AND SECLUSION.—

21 Each covered facility shall submit to the Secretary

22 and to the appropriate protection and advocacy

23 agencies a report that specifies the number of times

24 restraints or seclusion were used during the report25 ing period. Such report shall be submitted on a peri-
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1 odic basis specified by the Secretary, but in no case

2 less often than annually.

3 ‘‘(3) SUBMISSION OF REPORTS ON ALL SEN4 TINEL EVENTS.—

5 ‘‘(A) IN GENERAL.—Each covered facility

6 shall submit to the appropriate protection and

7 advocacy agency a report on—

8 ‘‘(i) each sentinel event (as defined in

9 subsection (g)(6)) that occurs respecting a

10 resident or patient, including only the

11 name of the resident or patient and a gen12 eral description of the event; and

13 ‘‘(ii) if information is available to the

14 facility, information on the death of any

15 individual who died within 14 days after

16 the date of discharge from the facility.

17 ‘‘(B) DEADLINE FOR SUBMISSION.—Each

18 report under subparagraph (A)(i) shall be sub19 mitted within 7 days of the date of the incident

20 involved and each report under subparagraph

21 (A)(ii) shall be submitted within 7 days of re22 ceipt of information concerning the death of the

23 former resident or patient.

24 ‘‘(C) ANNUAL REPORT.—Each covered fa25 cility shall submit on an annual basis to the
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1 Secretary an annual report on sentinel events

2 for which reports were made during the pre3 vious year under subparagraph (A).

4 ‘‘(e) IMPLEMENTATION.—

5 ‘‘(1) IN GENERAL.—Not later than 1 year after

6 the date of the enactment of this section, the Sec7 retary shall establish a protocol for the recording

8 and reporting of information under subsection (d).

9 To the extent feasible, the Secretary shall establish

10 the protocol in a manner that is consistent with

11 medical records recording systems and that is co12 ordinated with other applicable health care informa13 tion reporting systems. The Secretary shall consult

14 with appropriate protection and advocacy agencies in

15 establishing and implementing the protocol.

16 ‘‘(2) PUBLICATION OF SUMMARY.—The Sec17 retary shall compile and publish on an annual basis

18 a comprehensive summary of the reports received

19 under subsection (d)(3).

20 ‘‘(3) ESTABLISHMENT OF GUIDELINES FOR

21 PEER REVIEW ORGANIZATIONS.—The Secretary shall

22 establish guidelines for the use of utilization and

23 quality control peer review organizations (as defined

24 in section 1152(a)) in reviewing policies and proce-
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1 dures of covered facilities regarding the use of re2 straints and seclusion consistent with this section.

3 ‘‘(f) SANCTIONS.—

4 ‘‘(1) LOSS OF MEDICARE AND MEDICAID FUND5 ING.—A covered facility that fails to comply with the

6 requirements of subsection (a) (including failure to

7 provide for annual training of staff in accordance

8 with subsection (a)(3)) is subject to disqualification

9 from participation in the medicare program under

10 title XVIII and the medicaid program under title

11 XIX for such period at the Secretary may specify.

12 ‘‘(2) CIVIL MONEY PENALTY FOR FAILURE TO

13 FILE SENTINEL REPORTS.—A covered facility that

14 fails to file a report required to be made under sub15 section (b)(3) within the period so required is sub16 ject to a civil money penalty not to exceed $5,000

17 for each such violation. The provisions of section

18 1128A (other than subsections (a) and (b)) shall

19 apply to civil money penalties under this subsection

20 in the same manner as they apply to a penalty or

21 proceeding under section 1128A(a).

22 ‘‘(g) DEFINITIONS.—For purposes of this section:

23 ‘‘(1) RESTRAINTS.—The term ‘restraints’

24 means any chemical or physical restraint (as defined

25 in paragraphs (2) and (3)).
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1 ‘‘(2) CHEMICAL RESTRAINT.—The term ‘chem2 ical restraint’ means the use of any medication or bi3 ological for the purpose of immobilizing the indi4 vidual, inducing a state of sleep or unconsciousness,

5 or reducing the ability to move freely. Such term

6 does not include involuntary administration of medi7 cation when administered pursuant to a court order

8 or the administration of medication for voluntary or

9 emergency treatment (such as anesthesia adminis10 tered before a surgical procedure).

11 ‘‘(3) PHYSICAL RESTRAINT.—The term ‘phys12 ical restraint’ means any mechanical or personal re13 striction that immobilizes or reduces an individual’s

14 ability to move arms, legs, or head freely. Such term

15 does not include devices, such as orthopedically pre16 scribed appliances, surgical dressings and bandages,

17 protective helmets and supportive body bands, and

18 other physical holding when necessary for routine

19 physical examinations or tests or for orthopedic sur20 gical or other similar medical treatment purposes or

21 when used to provide support for the achievement of

22 functional body position or proper balance or to per23 mit an individual to participate in ongoing activities

24 with the risk of physical harm.
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1 ‘‘(4) PROTECTION AND ADVOCACY AGENCY.—

2 The term ‘protection and advocacy agency’ means an

3 appropriate board under the protection and advocacy

4 system established under part C of title I of the De5 velopmental Disabilities Assistance and Bill of

6 Rights Act (42 U.S.C. 6041 et seq.).

7 ‘‘(5) SECLUSION.—The term ‘seclusion’ means

8 the involuntary confinement of a resident or patient

9 in a room from which the resident or patient is

10 physically prevented from leaving.

11 ‘‘(6) SENTINEL EVENT.—The term ‘sentinel

12 event’ means an unexpected occurrence involving a

13 substantial impairment of the physical or psycho14 logical condition of a resident or patient, including

15 any burn, laceration, or abrasion of the skin, frac16 ture of any bone, substantial hematoma, injury to

17 any internal organ, or any injury that occurs as a

18 result of repeated harm to any bodily function or

19 organ (including the skin), if the occurrence is unre20 lated to the natural course of the individual’s illness

21 or underlying condition, and includes the death of

22 the individual in any case.’’.

23 (b) EFFECTIVE DATES.—

24 (1) PROTECTION AGAINST USE OF PUNITIVE

25 RESTRAINTS AND SECLUSION.—The requirements of
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1 subsections (a)(1) and (c) of section 1164 of the So2 cial Security Act, as added by subsection (a), apply

3 to restraints and seclusion used on or after the first

4 date of the first month that begins more than 6

5 months after the date of the enactment of this Act.

6 (2) REPORTING REQUIREMENTS.—

7 (A) DEADLINE FOR ESTABLISHING PRO8 TOCOL.—The Secretary of Health and Human

9 Services shall first establish the protocol de10 scribed in section 1164(e)(1) of the Social Secu11 rity Act, as added by subsection (a), within 1

12 year after the date of the enactment of this Act.

13 (B) REPORTS.—Covered facilities are first

14 required to record information and submit re15 ports under section 1164(c) of the Social Secu16 rity Act, as so added, for restraints and seclu17 sion used on and after a date (specified by the

18 Secretary of Health and Human Services ) that

19 is not later than 2 months after the date of the

20 establishment of the protocol under section

21 1164(e)(1) of such Act.

22 (3) ANNUAL TRAINING.—The requirement of

23 section 1164(a)(3) of the Social Security Act, as so

24 added, applies for annual periods beginning after the

25 effective date described in paragraph (1).
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1 (4) POSTING INFORMATION.—The requirement

2 of section 1164(a)(4) of the Social Security Act, as

3 so added, takes effect on such date, not later than

4 the effective date described in paragraph (1), as the

5 Secretary of Health and Human Services shall speci6 fy.

Æ