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· The Health Care Financing Administration (HCFA) should postpone the implementation of their interim final rule and develop a process that includes the participation of all stakeholders in developing requirements that will not jeopardize the safety and health of children and youth in the implementation of restraint and seclusion.

Background
When Congress was considering legislation in 1999 to address the abuse of restraint and seclusion in non-medical, community-based facilities for children and youth, the Alliance for Children and Families and its members worked hard with other national organizations and with members of Congress to achieve a thoughtful response to the problem. The Alliance was successful in reminding Congress of the unique needs of the children in our member agencies’ care and the special role of non-medical, community-based providers.

The final language of the Children’s Health Act of 2000 (P.L. 106-310) represents sensible legislation to respond to abuses in the use of seclusion and restraints without undermining practices critical to ensuring the safety and well-being of residents and staff in residential treatment facilities. The legislation includes a new, separate section to specifically address the circumstances of non-medical, community-based facilities for children and youth. The language emphasizes that restraints and seclusion in non-medical, community-based facilities for children and youth will only be imposed in emergency circumstances and only to ensure the physical safety of the residents or others. The language also recognizes the importance of appropriately trained and certified staff, and thus the requirement for a physician to authorize restraints has been removed from this section and substituted by, "a supervisory or senior staff person with training in restraint and seclusion who is competent to conduct a face-to-face assessment." In addition, terms have been defined less broadly and more specifically in consonance with their usage in non-medical, community-based facilities, so that, for example, the definition of "seclusion" does not include time out, and the definition of "physical restraint" does not include physical escort. However, the legislation left much to be determined in regulations, and definitions and other key provisions have been left to two executive agencies, HCFA, for Part H, and the Substance Abuse and Mental Health Services Administration (SAMHSA), for Part I of the law.

HCFA Interim Final Rule
On January 22, 2001, the Health Care Financing Administration published in the Federal Register (Vol.66, No. 14) an interim final rule pertaining to the use of restraint and seclusion in psychiatric residential treatment facilities providing psychiatric services to individuals under age 21. On March 21, the Alliance and eight of its member agencies submitted comments to HCFA on this matter.

The Alliance for Children and Families is committed to promoting the well-being of children, youth, and families, and to protecting every child from harm. We strongly believe that staff who have direct contact with children should be trained in de-escalation techniques and the proper and safe use of restraints. However, the Alliance is concerned that the proposed federal regulations addressing the use of restraint and seclusion do not recognize the incidence and extent of the behavioral problems of children in residential care.

While we endorse the motivation to establish a national regulatory framework regarding restraint and seclusion, we find much that is problematic in the interim final rule. We take issue with some of the basic premises underlying its provisions. We believe that the implementation of this rule is likely to have a deleterious impact on the care and treatment of the most vulnerable young people in our communities and, in fact, may unintentionally result in fewer facilities being available to meet their needs.

First, we find the staffing requirements to be onerous. The requirement to have a registered nurse on duty 24 hours a day is impractical as well as economically unfeasible. Hospitals across the country are reporting difficulties in recruiting and retaining registered nurses. Additionally, the funding of one nursing position in these child serving facilities represents approximately three full-time direct care positions. The financial burden imposed by this rule will force facilities to close or to stop serving troubled children and youth altogether. We are deeply concerned that these children will be forced into other, more restrictive settings, such as juvenile justice facilities and hospitals. We believe that rather than agencies spending huge proportions of their funds for the hiring of registered nurses, who would be underutilized, scarce agency dollars would be better employed to reduce the use of restraint and seclusion by providing better training and the hiring of additional direct care staff.

Second, we find the requirement that only a board-certified psychiatrist or physician with specialized training and experience in the diagnosis and treatment of mental diseases may order the use of restraint or seclusion to be impractical. This may be practical for a hospital but unaffordable for community-based residential facilities. Some states have a limited number of board-certified psychiatrists at all, and some facilities are located in areas that may have limited access to both board-certified psychiatrists and physicians. Furthermore, the requirement that only a board-certified psychiatrist or physician with specialized training and experience in the diagnosis and treatment of mental diseases may order restraint or seclusion does not guarantee that they have the training, experience and expertise required to order these particular behavior management techniques.

Finally, while the attention to training and more qualified, better-prepared staff is laudable, the rule does not contain a directive that would allow Federal Title IV-E of the Social Security Act funds, or other federal funds, to be used to attract, prepare, or retain private agency staff. Federal funds to support additional training and the development of professionalism among staff would be effective in reducing the inappropriate use of restraints and seclusion where they exist. The burden of an additional "unfunded mandate" on a private provider sector already strapped by a staffing crisis will jeopardize the very existence of high quality agencies for children and youth.

Specifically, the Alliance recommends:

• Specifying for health care facilities what constitutes "emergency circumstances" that do not require the written order of a physician, registered nurse, or other licensed practitioner
• Defining "non-medical, community-based facility for children and youth" and ensuring that all definitions used by different agencies, such as HCFA and SAMHSA, are congruent
• Defining a "state-recognized body" that will train and certify staff in behavior management