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Archive for Saturday, July 16, 2005

Nursing homes need to adhere to restraining rules

July 16, 2005

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Q: My mother broke her hip and, after surgery, was discharged to a nursing home for rehabilitation. Since her surgery, she has become combative and now suffers from memory loss. She continuously tries to get out of bed by herself, has fallen twice, and has had several near-falls. My brother and I have hired round-the-clock sitters, who are very costly. We have tried to get the nursing home to restrain her physically and chemically for her own protection, but are told that federal law prohibits restraints. If that's true, is there no way to protect our mother?

A: It appears that you've been told only half the story. To prevent the unnecessary and non-emergency use of restraints when other treatment would be more appropriate, federal and state mandates forbid the use of physical and chemical restraints as discipline for a resident or as a convenience for the facility. They also forbid physical and mental abuse, corporal punishment and involuntary seclusion.

That said, barring emergencies, physical restraints are authorized to ensure the physical safety of the resident - or other residents - so long as prescribed by a physician who specifies the circumstances and the length of time the restraint can be used. The documented circumstances must be such that:

¢ there is a substantial risk of imminent harm by your mother to herself or to others, and

¢ less restrictive means of preventing harm are insufficient.

Similarly, medications with mind-altering effects on a resident only can be administered when ordered by a physician and part of a written medication plan, and the attending physician must review the resident's medication regimen at least every 30 days.

There must be a written doctor's order detailing the reasons for the restraint(s), but if the physician's order is by telephone, the physician must examine the resident and sign a written order within 12 hours.

If there is an emergency where imminent harm would result and the physician can't be contacted, the facility may temporarily restrain a resident until a physician's authorization is received. In no case, however, should a resident remain physically restrained or in seclusion for more than 24 hours without a physician's order. During these periods, a health professional is required to see the resident at least every 12 hours to monitor his/her condition, and appropriate facility staff should check and chart the resident's physical and mental condition at least once per hour. Residents also should be allowed to use the toilet according to their needs, to bathe, and, of course, to be fed and hydrated.

In any event, the use of restraints and/or seclusion can't exceed 24 hours, at which time a doctor must be consulted to determine if continuation is necessary.

We suggest that you schedule a meeting with the administrator of the facility, the facility physician and the head of your mother's care team to discuss this critical issue. Also, check your state's statutes and regulations because some allow restraints if there is consent by a properly authorized family member and a physician's order.

Because of the federal and state mandates, the fact is that facility physicians may not actually go to the facility regularly, and for liability reasons, some facilities shy away from restraints - even in appropriate situations.

For obvious reasons, neither residents nor authorized family members should consent in advance to the use of restraints that may be included in the facility admission agreement, nor should they sign admission agreements containing language that purports to release the facility from accountability should the resident be injured during the restraint process, as both are contrary to public policy and may violate state consumer protection laws.

Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.

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