Restraint and Seclusion Techniques: Know Your Legal Risks

Agenda

A Historical Perspective

• Patchwork Quilt of State Regulations
• 1985 Task Force of American Psychiatric Association Found Inconsistency With Regard to Definitions of Restraint/Seclusion, Use to Prevent Property Damage, When/How to Conclude Use, etc.
• Youngberg v. Romeo, 457 U.S. 307 (1982), U.S. Supreme Court
• Restraint Is a Drastic Deprivation of Personal Liberty and the Right to Be Free From Undue Bodily Restraint Is the Core of the Liberty Interest Protected by the Due Process Clause From Arbitrary Governmental Action
• Emergence of Clinical Consensus That Restraint and Seclusion Are Safety Interventions of Last Resort and Use Should Be Reduced Significantly and Reserved for Only the Most Emergent Situations

January 2007 - CMS Rules Applicable to All Medicare and Medicaid Participating Hospitals

• Restraint and Seclusion May Only Be Imposed to Ensure the Immediate Physical Safety of the Patient, a Staff Member, or Others and Must Be Discontinued at the Earliest Possible Time
• General Requirements for All Patients, Without Distinction for Medical/Surgical Care and Behavior Management
• Special Requirements for Violent and Self-Destructive Behavior

Implementation - How Is It Working?

• CMS Conditions of Participation and Joint Commission Standards for Restraint and Seclusion
• How Good Is Your Documentation?
• Training Requirements

Credits

Faculty

David J. Ryan

Williams Kastner

David J. Ryan, J.D.

• Member in the Portland, Oregon, office of Williams Kastner & Gibbs PLLC and a member of the firm’s Health Care and Business Litigation Practice Groups, as well as part of the insurance team
• Practice focuses in civil litigation, with emphasis in professional malpractice and health care liability
• Provides legal counsel and risk management advice to health care clients, including nonprofit hospital systems operating in the states of Oregon and Washington and residential treatment facilities
• Co-writer of the published article, “Punitive Damages Against Health Care Providers in the Health Care Reform Era,” Physician Organizations, American Health Lawyers Association, February 2010; AAOS Now, American Academy of Orthopaedic Surgeons, February 2010
• Member of the Oregon State Courts; the U.S. District Court, District of Oregon; the Washington State Courts; and the U.S. District Court, Western District of Washington
• J.D. degree, Lewis and Clark Law School (formerly Northwestern School of Law), Portland, Oregon; B.A. degree, The College of William and Mary, Williamsburg, Virginia
• Can be contacted at 503-944-6945 or [email protected]

Suzanne Thompson Wininger, RN, BSN

Campbell Thompsom Wininger PLLC

Suzanne Thompson Wininger, R.N., B.S.N., J.D.

• Manages and operates law practice and nurse consulting firm specializing in elder law and care management
• Provides legal advice and legal services consistent with wills, powers of attorney, advanced directives, long term care planning and guardianship
• Serves as expert witness in long term care litigation (negligence and neglect)
• Title 11.88 Guardian ad Litem appointed by a superior court to conduct investigation once petition filed to deem an adult incapacitated; performs Settlement Guardian ad Litem work for superior courts
• Promotes and advocates for resident rights, home care resources, discharge planning resources and long term care resources, and protects residents against vulnerable adult abuse
• Frequent speaker on guardianships, POLSTS, long term care standards of practice, vulnerable adult abuse protection, and Medicaid qualification
• Provides regulatory compliance consultation to adult family homes, boarding homes and nursing homes; staff education; policy and procedure revision; mock inspection; and survey consultation
• Member of the Washington State Bar, National Academy of Elder Law Attorneys, The American Association of Nurse Attorneys, and numerous other Washington State elder law committees
• J.D. degree, Gonzaga University School of Law; B.S. degree in nursing, University of Mary Hardin-Baylor; B.S. degree in human development, University of California, Davis
• Can be contacted at 253-863-0207 or [email protected]