[Senate Hearing 106-93]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 106-93


 
                       DEATHS FROM RESTRAINTS IN
                         PSYCHIATRIC FACILITIES

=======================================================================

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                            SPECIAL HEARING

                               __________

         Printed for the use of the Committee on Appropriations


                               


 Available via the World Wide Web: http://www.access.gpo.gov/congress/senate

                                 ______

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                      COMMITTEE ON APPROPRIATIONS

                     TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi            ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania          DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico         ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri        PATRICK J. LEAHY, Vermont
SLADE GORTON, Washington             FRANK R. LAUTENBERG, New Jersey
MITCH McCONNELL, Kentucky            TOM HARKIN, Iowa
CONRAD BURNS, Montana                BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama           HARRY REID, Nevada
JUDD GREGG, New Hampshire            HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah              PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho                   DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas          RICHARD J. DURBIN, Illinois
JON KYL, Arizona
                   Steven J. Cortese, Staff Director
                 Lisa Sutherland, Deputy Staff Director
               James H. English, Minority Staff Director
                                 ------                                

 Subcommittee on Departments of Labor, Health and Human Services, and 
                    Education, and Related Agencies

                 ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi            TOM HARKIN, Iowa
SLADE GORTON, Washington             ERNEST F. HOLLINGS, South Carolina
JUDD GREGG, New Hampshire            DANIEL K. INOUYE, Hawaii
LARRY CRAIG, Idaho                   HARRY REID, Nevada
KAY BAILEY HUTCHISON, Texas          HERB KOHL, Wisconsin
TED STEVENS, Alaska                  PATTY MURRAY, Washington
JON KYL, Arizona                     DIANNE FEINSTEIN, California
                                     ROBERT C. BYRD, West Virginia
                                       (ex officio)
                           Professional Staff
                            Bettilou Taylor
                             Mary Dietrich
                              Jim Sourwine
                               Aura Dunn
                        Ellen Murray (Minority)

                         Administrative Support
                             Kevin Johnson
                       Carole Geagley (Minority)



                            C O N T E N T S

                              ----------                              
                                                                   Page
Statement of Hon. Joseph I. Lieberman, U.S. Senator from 
  Connecticut....................................................     1
Statement of Hon. Christopehr J. Dodd, U.S. Senator from 
  Connecticut....................................................     1
Opening statement of Senator Specter.............................     1
Prepared Statement of Senator Joseph I. Lieberman................     4
Prepared Statement of Senator Christopehr J. Dodd................     8
Remarks of Senator Tom Harkin....................................     9
Statement of Catherine Jean Allen, Ph.D., Greensboro, NC.........    11
    Prepared statement...........................................    13
Statement of Wanda Mohr, Ph.D., assistant professor of nursing, 
  University of Pennsylvania.....................................    15
    Prepared statement...........................................    16
Statement of Joseph Rogers, executive director, Mental Health 
  Association of Southeastern Pennsylvania, National Mental 
  Health Association.............................................    20
    Prepared Statement...........................................    22
Statement of Dennis O'Leary, M.D., president, Joint Commission on 
  Accreditation of Health Care Organizations.....................    26
    Prepared statement...........................................    27
Statement of Thomas Harmon, executive secretary, Medical Review 
  Board, New York State Commission on Quality Care...............    31
    Prepared statement...........................................    33

         Material Submitted Subsequent to Conclusion of Hearing

Prepared statement of the American Psychiatric Association.......    41
Prepared joint statement of general principles on seclusion and 
  restraint by the American Psychiatric Association and the 
  National Association of Psychiatric Health Systems.............    45
  



            DEATHS FROM RESTRAINTS IN PSYCHIATRIC FACILITIES

                              ----------                              


                        TUESDAY, APRIL 13, 1999

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 9:30 a.m., in room SD-192, Dirksen 
Senate Office Building, Hon. Arlen Specter (chairman) 
presiding.
    Present: Senators Specter and Harkin.

                        CONGRESSIONAL WITNESSES

STATEMENTS OF:
        HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM CONNECTICUT
        HON. CHRISTOPEHR J. DODD, U.S. SENATOR FROM CONNECTICUT


                  opening statement of senator specter


    Senator Specter. We come to order for this hearing of the 
Appropriations Subcommittee on Labor, Health and Human Services 
and Education, and Related Agencies. We will begin now that it 
is 9:30 a.m., the convening time. After this hearing was 
scheduled, the President set a briefing for members of 
Congress, so we are going to have to conclude this hearing 
promptly at 10:30 a.m.
    While the openings have never been long at the allocation 
of time at 5 minutes, we are going to try to do them in 4. I am 
sorry about the time limitations, but I know you will 
understand that there are so many issues and Kosovo takes 
second place to nothing.
    This hearing has been scheduled in response to grave 
concern about an alarming number of deaths resulting from 
physical restraints in psychiatric facilities. It is impossible 
to say how many there are because there is no requirement for 
reporting of deaths from physical restraints, in a field which 
is largely left unregulated.
    It is surprising, because patients in nursing homes are 
protected by federal legislation from the 1987 Omnibus Budget 
Reconciliation Act, but no similar provisions apply to people 
in psychiatric institutions.
    The federal government has a very vital role in this area, 
considering that some $14 billion a year is provided by the 
federal government for funding of psychiatric care. The kinds 
of restraints which are used are chemical, physical. While they 
are obviously necessary in some cases, there have been reports 
that they have been used for convenience, coercion or 
retaliation.
    These issues have come to the public floor as the result of 
an illuminating series in the Hartford Courant. So this hearing 
is going to be focusing on just what kind of restraints are 
used and to what extent HCFA from the Department of Health and 
Human Services ought to be involved.
    We are joined by two very distinguished members of the U.S. 
Senate, the distinguished senior senator, Senator Dodd, elected 
in 1980, a colleague of mine from that election. We have worked 
very closely on juvenile matters and health matters over the 
years. We welcome him here.
    Senator Dodd. Thank you, sir.
    Senator Specter. And his distinguished colleague, Senator 
Joseph Lieberman, elected in 1988, ranking member of the 
Governmental Affairs Committee.
    We welcome you here, gentlemen. As I had said a moment ago, 
because of the President's briefing, it will require us 
terminating at 10:30 a.m. I am going to submit my longer 
opening statement for the record. And to the extent we can 
confine statements to 4 minutes, it would be appreciated. But 
you men have presided at enough of these similar hearings to 
know precisely what is involved.
    Senator Specter. Senator Dodd, welcome, and the floor is 
yours.
    Senator Dodd. Thank you, Mr. Chairman. But I would like to 
defer to my colleague, if I may, who is----
    Senator Lieberman. No. You go ahead.
    Senator Dodd. Are you sure? Joe has done a tremendous 
amount of work on this, and I appreciate your--I try to remind 
him all the time I am his senior senator, but he has done so 
much work on this, I really wanted to give him a chance to go 
ahead.
    Why do you not do that?
    Senator Specter. Senator Lieberman, the floor is yours. I 
note that notwithstanding seniority and chronology, your bill 
was introduced slightly ahead.
    Senator Dodd. I want the record to show that.
    Senator Lieberman. No; I am grateful to my colleague. And 
it is true, he has reminded me so effectively that he is my 
senior colleague, I automatically deferred to him. But I 
appreciate his graciousness. I will try to respond by 
abbreviating my statement and submitting a larger one for the 
record.
    Senator Specter. Thank you very much.


                 summary statement of senator lieberman


    Senator Lieberman. Mr. Chairman, I want to thank you for 
holding this hearing on the deadly use of restraints in mental 
health facilities and giving Senator Dodd and me the 
opportunity to testify.
    As you referenced, last October all of us, and I mention 
myself here, read with increasing horror and shame a 
brilliantly investigating and written series in the Hartford 
Courant, describing 142 deaths that were caused by restraint 
and seclusion in mental health facilities in our country over 
the last 10 years.
    In many ways, it was a trip back into medieval times, to a 
world that, except for this journalistic series, would, for me 
at least, have been well beyond the limits of my knowledge, a 
kind of venture into an existence that otherwise would have 
been invisible to most of us. Although the federal government 
funded much of the care of these patients, these victims 
enjoyed almost no federal protections, certainly not relevant 
to what was done to them. Even basic information about the 
number and circumstances of their deaths was difficult for 
their loved ones to obtain.
    So I come to this hearing today with a sense of anger over 
the treatment of some of the most vulnerable people in our 
society and with a determination to work with you, Mr. 
Chairman, with Senator Dodd and others, to prevent future 
deaths and injuries from the improper, I may say so, at times 
barbaric use of restraints.
    I also come with a sense of urgency. Just last Friday I 
learned of yet another young boy who died in a mental health 
facility in Chesterfield, Virginia, after the apparently 
improper use of restraints and seclusion. The facts certainly 
seem to warrant the conclusion that restraints and seclusion 
are cruelly over used in America's mental health institutions 
today. They are used inhumanly, and they are too often used 
with fatal results.
    Let me briefly share some of the major conclusions of the 
Hartford Courant articles. Deaths were reported in 30 states, 
including, as you know, Mr. Chairman, Pennsylvania. Thirty-
three percent of the victims were suffocated. More than 26 
percent of those killed were children under 17, a rate that is 
nearly twice the proportion of that age category in mental 
health institutions.
    Of course, aggregate statistics do not adequately convey 
the tragedies experienced by the families of these people 
across this country. The victims' stories will and would better 
describe the agonies of their loved ones deaths. Shortly you 
will hear from Jean Allen, who will describe the parental 
nightmare she experienced, the death by suffocation of her 16-
year-old son Tristan Sovern. As a parent, I extend my sympathy 
to her and to other parents whose children have died merciless 
deaths in restraints. As a senator, I express my commitment to 
work with my colleagues to prevent further such tragedies.
    Mr. Chairman, I applaud your efforts to make sure that the 
mental health care funded by your committee does not result in 
injury or death. You have acted more quickly than any other 
committee of Congress to address this national shame.
    Now the legislation that Senator Dodd and I have introduced 
would extend existing nursing home standards on the use of 
restraints to mental health patients and add a reporting 
requirement for injuries and death. Our Connecticut colleague 
representative, Rosa Deloro, and others have introduced 
companion legislation in the House.
    Our bill explicitly forbids the use of restraints unless 
approved in writing by a physician, except under emergency 
circumstances. In other words, restraints are not to be used 
for discipline or for convenience. The same standard in effect 
in nursing homes since 1987 has reduced the use of restraints 
by over one-third.
    Our bill also requires that facilities report deaths and 
serious injuries to mental health patients under the care of 
those facilities, so that the cause of death or injury can be 
analyzed, preventive steps deployed, and the public alerted. 
With mandatory requirements under a state law in your state, 
Mr. Chairman, as you know, Pennsylvania is already producing 
dramatic reductions in the use of restraints and seclusions in 
mental health facilities.
    I am encouraged by the response to the legislation. In my 
printed statement, I will indicate the number of organizations 
that I am proud to say are supporting it. Let me conclude by 
going back to the beginning.

                           prepared statement

    I personally, and those of us in Connecticut and around the 
country, owe the Hartford Courant a debt for breaking the walls 
of secrecy that concealed 142 deaths caused by the deadly use 
of restraints. Your hearing today is the beginning of action by 
Congress that will tear down that wall and erect in its place a 
better system of protection for America's mental health 
patients.
    I thank you. And again, I thank my colleague for his 
courtesy.
    Senator Specter. Thank you very much, Senator Lieberman, 
for your very insightful statement.
    [The statement follows:]
           Prepared Statement of Senator Joseph I. Lieberman
    Mr. Chairman, Senator Harkin, members of the Committee. Thank you 
for holding this hearing on deaths from restraints in mental health 
facilities.
    In October, I read with horror, a powerful, brilliantly 
investigated and written series of stories in the Hartford Courant 
detailing 142 deaths from restraint and seclusion in mental health 
facilities. These deaths stretched over a decade, across the country, 
and to patients of all ages.
    Although their care was federally funded, few federal protections 
were available to the victims and even basic information about the 
number of victims and the circumstances of their death was difficult to 
obtain.
    I come to this hearing today, months later but still horrified, 
still outraged, and determined to do what I can to prevent deaths and 
injuries.
    I also come with a sense of urgency having read just Friday that 
another teenage boy has died in a mental health facility, this time in 
Chesterfield, Virginia, after the use of restraints and seclusion.
    I strongly urge this Subcommittee to protect mental health patients 
from the deadly use of restraints.
    Restraints and seclusion are being used too much, they are being 
used inhumanely, brutally, and sometimes fatally. This practice is 
medieval in its application.
    Here are some of the findings of the Courant articles: deaths 
reported in 30 states including both Pennsylvania and Iowa; 33 percent 
of the victims were suffocated; and more then 26 percent of those 
killed were children under 17.
    But aggregate statistics can not convey the tragedy of restraints. 
Let me read some of the names and circumstances of deaths of victims 
that were killed during the months leading up to the death of 12-year 
old Andrew McClain in Connecticut.
    Robert Rollins, age 12, suffocated after a dispute over his missing 
teddy bear.
    Melissa Neyman, 19, suffocated when staffers strapped her to her 
bed at 10 p.m. and didn't check on her until the next morning. By then 
she had been dead 6 hours--entangled in her own restraints.
    Edith Campos, 15, suffocated. Edith was looking at a family 
photograph when a male aide instructed her to hand over the 
``unauthorized'' personal item.
    Dustin Phelps, 14. Dustin died when the owner of the home wrapped 
him in a blanket and a mattress and tied it together with straps, 
investigators said. He was left in the mattress for four hours.
    You shortly will hear from Jean Allan who can describe the death by 
suffocation of her 16-year old son, Tristan Sovern.
    I am appalled by these deaths, as I am sure this Subcommittee is.
    As a parent, I wish to extend my sympathy to Jean Allan and other 
parents whose children died in restraints.
    As a Senator, I am outraged and want to work with my colleagues to 
prevent these deaths. One of the basic purposes of government is to 
protect those who can't defend themselves.
    Chairman Specter and Ranking Member Harkin, I applaud your efforts 
to make sure that the mental health care funded by your Committee is 
not deadly or injurious. Federal funding sources including Medicare, 
Medicaid, and SAMHSA comprised almost 40 percent of the $36 billion 
that flowed into mental health organizations in 1994. You have acted 
more quickly than any other Committee of Congress to address this 
national shame.
    I have introduced legislation with Senator Dodd that would to 
extend existing nursing home standards on the use of restraints to 
mental health patients and add a reporting requirement for deaths and 
serious injuries to mental health patients. Reps. Degette, Stark, and 
DeLauro have introduced restraint legislation in the House.
    Our bill forbids the use of restraints unless approved in writing 
by a physician, except under emergency circumstances.
    This same standard has reduced the use of restraints in nursing 
homes by over a third this decade. Our bill would extend this success 
to the entire nation's mental health community.
    The reporting requirement in our bill mandates that facilities 
report deaths and serious injuries to mental health patients under 
their care so that the cause of the tragedy can be analyzed, 
preventative steps developed, and the public alerted. With mandatory 
reporting, Pennsylvania is producing dramatic reductions in the use of 
restraints and seclusion in their state mental hospitals.
    I am encouraged by the response to the legislation.
    The bill is supported by the National Alliance for the Mentally 
Ill--two of whose Connecticut affiliate presidents, Karen Hutchin of 
Granby, CT and Jeanne Landry-Harpin of Woodbridge, CT--played a 
critical role in helping the Hartford Courant investigate and organize 
its series last year.
    It also is supported by the Joint Commission on Accreditation of 
Healthcare Organizations, the association which sets standards for the 
health care industry. They ``support the mandatory reporting and 
disclosure of deaths related to the use of restraints''.
    Other supporters include the National Mental Health Association, 
the National Association of Protection and Advocacy Systems, the 
Bazelon Center for Mental Health Law.
    The wall covering 142 deaths was broken by the Hartford Courant. 
Your hearing today is the beginning of action by Congress that will 
tear the wall down and build in its place a system of protection for 
America's mental health patients.
    I applaud your action and thank you for your time.

                   SUMMARY STATEMENT OF SENATOR DODD

    Senator Specter. Senator Dodd.
    Senator Dodd. Thank you very much, Mr. Chairman. And I am 
very pleased to be sharing this witness table with my colleague 
from Connecticut. We have introduced two bills and are co-
sponsoring each other's because they involve different 
committees of jurisdiction, so avoiding the consequential 
referrals. The bill that Joe has talked about I think goes to 
finance, or at least part of it does anyway, because it touches 
on HCFA, and the legislation that we both introduced that goes 
specifically to the Labor Committee, where SAMSA legislation 
has to be reauthorized this year.
    And obviously, a critical piece of that obviously comes to 
you, because we will be talking about resources that will be 
needed if major parts of our legislation are going to be 
funded. So I am deeply appreciative to you and to Senator 
Harkin, with whom I have the pleasure of serving on the Labor 
Committee.
    And as you pointed out, Mr. Chairman, I have had the 
pleasure for the past 18 years of working with you on countless 
issues involving children. And it seems rather natural to be 
appearing before you today on an issue, as Senator Lieberman 
has pointed out, where 26 percent of these deaths that we are 
talking about occurred to juveniles, a percentage vastly in 
excess of the percentages in the population of mental health 
patients.
    I note here, just looking at some of the notes here 
prepared by various groups and organizations, this one here, as 
we talk about 142 deaths that the Hartford Courant included in 
its series of articles, it has been pointed out that there have 
been 5 additional deaths in the last 5 months. And just noting 
the ages of 17, 15, 16 and 9, 4 out of the 5, one an adult of 
36, just to dramatize the point that this is particularly an 
issue that affects all people, but it seems particularly hard 
to understand how a 9-year-old could die as a result of 
excessive restraint.
    It was on March 22, 1998, just about a year ago, Mr. 
Chairman, that a 90-pound, 4 foot, 6 inch tall 11-year-old boy 
in Portland, Connecticut, had his chest crushed as a result of 
restraints in a mental health facility in the State of 
Connecticut. Andrew McClain is really what provoked in many 
ways the series of articles prepared and written by the 
Hartford Courant.
    And I would like to ask, and you may have already done this 
before I walked in, but maybe as part of the record those 
articles be included, since they were so important in causing 
Senator Lieberman and I and you made note yourself and others 
to really decide this is an issue we ought to look into. And 
particular commendation, I think, should go to Eric Weiss, who 
is the principal author of these articles, but were supported 
by Dave Altimari, Dwight Blint and Kathleen Neegan, who all put 
those articles together.
    Senator Specter. Without objection, they will be made a 
part of the record.
    Senator Dodd. Thank you, Mr. Chairman.
    As a result of that, those series of articles, your 
interest and the interest of others, we have a wonderful chance 
in this first session, I think, of this Congress to be able to 
do something about this issue. We have, I said, Tom, before you 
walked in, the SAMSA legislation up in our committee, the 
Chairman's interest in this. We can bring these issues together 
and the work with HCFA.
    Let me just briefly, we do three things in our bill, Mr. 
Chairman, as I am sure you are aware. First, we set standards 
for restraint and seclusion use, as Senator Lieberman has 
already pointed out here. Again, the only reason--no longer can 
reasons be used of discipline, punishment or convenience be 
tolerated in the area of physical restraints or seclusion.
    We also require a physician's written order specifying the 
length and circumstances under which restraints may be applied. 
This is--again, we are applying the standards that have been 
used in nursing homes, I think rather effectively, by modifying 
the legislation that would allow for those standards now to be 
used in mental health facilities.
    Second, Mr. Chairman, we have discovered--and again, both 
you and Senator Harkin, I am preaching to the choir on this 
issue, but the least trained people in the entire health care 
fields are people in mental health. The lowest paid, least well 
trained are in mental health. It is just an amazing statistic, 
but it happens to be the case.
    And what we try to do with our legislation is to see if we 
cannot help out here, because these are good people in places. 
They need to be trained and understand what needs to be done. 
And we do not want to be suggesting, I do not want to be, that 
people who work in these facilities are criminals in some way. 
This requires the kind of training and backing that is 
necessary.
    Only three States, California, Colorado, and Kansas, 
license aides in psychiatric facilities. Out of 50 states, only 
3 do. And while individual States or facilities may set their 
own standards, and we respect that, there is no uniform minimum 
training stated for mental health care workers. Our legislation 
will help ensure that adequate staffing levels and appropriate 
training for staff facilities will serve the mentally ill.
    Specifically, the legislation requires the Secretary of 
Health and Human Services to set regulations requiring mental 
health providers to adequately train their staff in the correct 
application of restraints and their alternatives to ensure that 
appropriate staffing levels are maintained.
    A staff person, I might point out, with 23 years of 
experience, Mr. Chairman, was quoted in the Hartford Courant 
series, she said, ``Every time we've had a downsize in staff, 
we've had an increase in restraints and seclusion.'' So there 
is a direct correlation.
    Third and last, Mr. Chairman, we will ensure that providers 
who violate the rights of the mentally ill will be held 
accountable. And this underscores Senator Lieberman's comments 
of the abhorrence with which we read these stories and find out 
what happens to these people, particularly again on children.
    My bill, this bill rather, will amend the protection in 
advocacy for mental ill individuals, so that the state advocacy 
systems are specifically granted the authority to investigate 
and prosecute deaths and serious injuries resulting from 
improper restraint and seclusion use. It will also require 
mental health care providers to notify their state's protection 
and advocacy organization of all the deaths that occur in their 
facility, at their facilities. It is incredible to me in 1999 
that that has not been required, that only three states have 
any standards in this area at all.
    And last, we grant the Secretary of Health and Human 
Services the authority to end any federal funding for mental 
health care providers that violate the protections that this 
bill would establish. We think that alone may have the greatest 
impact in getting the kind of compliance that is necessary.
    Again, Mr. Chairman, we thank you immensely for your 
interest in this, Senator Harkin's interest, confident in this 
session of Congress we can get some good work down in any area 
that cries out for attention.

                           prepared statement

    Senator Specter. Thank you very much, Senator Dodd, for 
that important statement. And thank the two of you gentlemen 
for your leadership. This subcommittee will be picking it up, 
and we will obviously have the important funding 
responsibilities on this enormously important matter.
    Thank you very much.
    Senator Dodd. Thank you.
    Senator Lieberman. Thank you.
    [The statement follows:]
           Prepared Statement of Senator Christopher J. Dodd
    I want to begin this morning with a brief story that may illustrate 
why we are here. On March 22, 1998, in Portland, Connecticut, 11 year 
old Andrew McClain--4 feet 6 inches tall and weighing 90 pounds--was 
held down by two staff members of a psychiatric hospital because of a 
disagreement over where he would sit for breakfast. His chest was 
crushed and he died as a result. The death of Andrew, like those of 
more than 140 mental patients around the country cited in a Hartford 
Courant series, was tragic and preventable.
    That is why we are here today--to help make sure that no family 
ever has to bury another Andrew McClain. Thank you Senators Specter and 
Harkin for convening this morning's hearing and for examining the 
national tragedy that these deaths represent. As Senator Lieberman 
mentioned, the bills that we've introduced recently differ in various 
respects. But, taken together, they share a common core: they create 
tough new limits on the use of potentially lethal restraints--be they 
physical or chemical in nature; they set rules for training mental 
health workers; and they increase the likelihood that a wrongful death 
of a mental health patient will be investigated and prosecuted--not 
ignored.
    The legislation I introduced contains these core provisions. Let me 
go into them with a bit more detail.
First, we will set standards for restraint and seclusion use
    Physical and chemical restraints may only be used when a patient 
poses an imminent risk of physical harm to himself or others. We also 
require a physician's written order specifying the length and 
circumstances under which restraints may be applied. No longer will the 
use of restraints for reasons of discipline, punishment, or convenience 
be tolerated.
    As Senator Lieberman mentioned, we will extend to the mental health 
population an existing standard enacted as part of the 1997 Omnibus 
Budget and Reconciliation Act that has already proven effective in 
reducing the use of restraints in nursing homes.
Second, we will ensure adequate staff training and staff levels
    Mental health aides are consistently the least-trained and lowest-
paid workers in the health care field. Only three States--California, 
Colorado, and Kansas--license aides in psychiatric facilities. While 
individual States or facilities may set their own standards, there are 
no uniform or minimum training standards for mental health care 
workers.
    My bill will help ensure adequate staffing levels and appropriate 
training for staff of facilities that serve the mentally ill. 
Specifically, my bill requires the Secretary of Health and Human 
Services to set regulations requiring mental health providers to 
adequately train their staff in the correct application of restraints 
and their alternatives and to ensure that appropriate staffing levels 
are maintained.
    As a staff person with 23 years of experience was quoted in the 
Courant series, ``Every time we've had a downsizing of staff, we've had 
an increase in restraints and seclusion.'' This provision will ensure 
that restraint use is not as result of staff shortages or inadequate 
training.
Third, we will ensure that providers who violate the rights of the 
        mentally ill will be held accountable
    My bill will amend the Protection and Advocacy for Mentally Ill 
Individuals Act (PAMII), so that State advocacy systems are 
specifically granted the authority to investigate and prosecute deaths 
and serious injuries resulting from improper restraint and seclusion 
use.
    My legislation will also require mental health care providers to 
notify their State's Protection and Advocacy Organization of all deaths 
that occur at their facilities.
    My bill will also grant the Secretary of Health and Human Services 
the authority to end any Federal funding for mental health care 
providers that violate the protections the bill establishes.
    As the Courant's series mentioned, we regulate the size of eggs, 
how our pets may be groomed, how manicurists are trained, yet we have 
not established a standard of care for some of our most vulnerable 
citizens. The legislation Senator Lieberman and I have introduced 
offers a significant step toward protecting those who may not be able 
to protect themselves.
    It is regrettable that it took the deaths of so many innocent 
victims to stir Congress to act. I can think of no higher priority for 
this Congress than the enactment of this important legislation. Such 
legislation is an attempt to carve something of value and meaning out 
of the tragedy of more than 100 restraint related deaths.

                     REMARKS OF SENATOR TOM HARKIN

    Senator Specter. Before calling on the ranking member, may 
I ask the next panels to come up?
    Senator Harkin. I just want to thank both Senator Lieberman 
and Senator Dodd. And please also take back our gratitude to 
the Hartford Courant for doing a great series of articles. This 
never would have come to light if they had not done an 
extensive investigative reporting on it. They deserve some 
prize for that. I do not know what they give out, but they 
deserve a prize.
    Senator Dodd. Well, the Hartford Courant won a Pulitzer 
today but on another subject matter.
    Senator Lieberman. We are going to give them the Harkin 
prize.
    Senator Harkin. Whatever it is. Something more meaningful 
than that.
    Senator Specter. Now before calling on our distinguished 
ranking member, let me ask the two panels to come 
simultaneously, Dr. Allen, Dr. Mohr, Mr. Rogers, Dr. O'Leary, 
and Mr. Harmon, so we can expedite the hearing.
    Now it is my pleasure to call on the distinguished ranking 
member, Senator Harkin.
    Senator Harkin. Thank you very much, Mr. Chairman. And 
thank you for calling this most important hearing.
    You know, as often as we are involved in these issues, 
sometimes things just sort of slip by. You know, we have so 
many things on our plate to pay attention to. And I just must 
tell you, as the author of the Americans with Disabilities Act, 
I take a particular interest in this issue. And I am amazed at 
how much I am now learning that I did not know about it before. 
And that is an indictment of myself for not being more 
cognizant of this issue. And again, I am really grateful to the 
Hartford Courant for the series that they have done on this.
    When I think about this, I think of young Chris Campbell 
from the State of Iowa, my home state, 13 years old, weighed 90 
pounds. In the last 24 hours of his life, he was physically 
restrained 4 times by staff. During the fourth time, he died.
    Again, he is an example of one of the major findings by the 
Hartford Courant that younger people with mental disabilities 
are the group that is most vulnerable to abuse and death caused 
by the inappropriate use of restraints.
    I especially want to thank Jean Allen and Joseph Rogers for 
coming forward today to tell their personal stories. Mrs. 
Allen, I was sorry to learn that your adopted son, Tristan, 
died while being restrained by staff. And Mr. Rogers, I know 
that your past experience of being placed in restraints will be 
enlightening to all of us. And I commend both of you for the 
courage that you have to come forward.
    So again, Mr. Chairman, this is an issue that, again, 
sitting here, I do not know exactly what we have to do. But 
when I found out that only three states have licensing and 
standard requirements, something is wrong out there. And I 
think we are going to have to take a really serious legislative 
look at what we need to do in this area. And I hope through 
this hearing, Mr. Chairman, that we will get a better idea of 
exactly what we ought to be doing legislatively on this thing.
    Again, I thank you for bringing us together for this very, 
very important issue.
    Senator Specter. Thank you very much, Senator Harkin.
                       NONDEPARTMENTAL WITNESSES

STATEMENT OF CATHERINE JEAN ALLEN, Ph.D., GREENSBORO, 
            NC
    Senator Specter. We now turn to our first witness, Dr. Jean 
Allen, who combines a professional standing with this issue. A 
Ph.D., in human development, family studies from the University 
of North Carolina, Greensboro, and tragically lost her 16-year-
old son, Tristan Sovern, last year when 7 staff members of a 
private psychiatric facility restrained him face down, wrapped 
a bed sheet around his head, resulting in his death, the 
official cause ruled suffocation, and is a very poignant and 
striking example of the excessive use of restraints resulting 
in a death and a great tragedy.
    Thank you for joining us, Dr. Allen, and we look forward to 
your testimony.
    Dr. Allen. Thank you, sir.
    I speak with you as the mother of a 16-year-old who died 
needlessly. His picture is up here. He is the child on the top 
row, far right. A child who should have been finishing his 
junior year in high school and looking forward to fulfilling 
his dream of earning his diploma as part of the class of 2000.
    Our son was hospitalized for a severe depressive episode. 
On the morning of his sixth day, my husband and I attended his 
discharge planning meeting. At 10:30 p.m. that night, he was 
dead. In the days and weeks that followed, the gruesome 
nightmare of his death began to unfold. There was a restraint 
and a seclusion, the second one in 2 days. Mouth coverings were 
used both times. In the second occasion, not one, but two, a 
large towel plus a bedsheet.
    Seven staffers took part in the take-down, meaning that 
Tristan was brought down to the floor face down, arms crossed 
across his chest, staffers at both of his sides, his feet, his 
hips and at his head.
    He went through a similar ordeal the night before when, 
after becoming agitated, he asked to leave a therapy session. 
And as he got up to leave and brushed by a staff person, he was 
taken down right outside the door to the therapy room and 
placed in seclusion in restraints. It is not clear exactly how 
long he was in restraints that night. It may have been longer 
than 3 hours. We were never notified of this intervention.
    We learned from the staff that Tristan's body went limp 
during that last restraint. When that happened, no one removed 
the mouth coverings nor checked to see if his airway was 
blocked. He was carried face down, down a long hallway to a 
seclusion room, placed on a bed face down, and his feet were 
strapped to the foot of the bed. No one removed the mouth 
coverings. Still no one assessed his breathing status.
    Someone finally thought to call his name. He did not 
respond. The mouth coverings were still held in place. The 
ankle straps were unbuckled, his body was turned over, and the 
mouth coverings were finally removed. CPR was unsuccessful, and 
Tristan was dead. The official cause of death, asphyxiation.
    Hospital reps cited this death as an unfortunate incident. 
They stood by their actions, stating the facilities policies 
and procedures had been followed. In the multiple 
investigations that ensued, several staffers stated that this 
type of restraint with mouth coverings was used approximately 
85 to 90 percent of the time, especially during interventions 
with adolescents.
    When asked to produce the manual that outlined the use of 
mouth coverings, the facility could not. Later, facility reps 
stated that the unwritten policy had ``just evolved over the 
course of the last five years.'' Staffers reported that they 
were never specifically trained when or how or how not to use 
mouth coverings, nor were the risks of using such a procedure 
covered during staff trainings. As a part of their damage 
control, the facility bought several one-page newspaper 
advertisements, one of which declared ``a lack of national 
standards.'' And they capitalized on their JACHO accreditation 
with commendation.
    Something is very wrong with this picture. And children, 
adolescents and adults are paying with their lives. It is 
crystal clear that these tragedies have been allowed to occur 
in part because there are no national standards preventing this 
type of abusive restraint and seclusion. It is equally clear 
that the current accreditation and monitoring process is 
woefully inadequate. Requirements for staff training must be 
established. Accountability must be mandatory. And enforcement 
must have teeth.
    Facilities must document the specific details of every 
intervention. Data should be verified by patients, patients' 
families, or other involved persons. All patient deaths and 
serious injuries should be reported and thoroughly 
investigated. We must have in place an independent, empowered 
system of advocacy for these vulnerable patients.
    Too many emotionally vulnerable and behaviorally disordered 
children and adults have already died. But of those healthy, 
normally developing children and adolescents who find the 
circumstances of their lives too difficult to handle and who 
begin to act out, who go into depressions, and whose families 
seek out professional help? What of those who go through this 
type of therapy and live through it?
    As a last effort, when all other alternatives have failed, 
proper, controlled restraint in certain emergency situations 
may protect an individual, but being manhandled and treated 
with disrespect and inhumanity leaves individuals scarred.
    Internalized feelings of anger, rage, abandonment and 
worthlessness are added to their already compromised coping 
mechanisms, making them even more vulnerable and emotionally 
broken. We must seriously examine the benefits of routine 
physical intervention against the high cost that patients are 
paying.

                           prepared statement

    Today I urge the members of the 106th Congress to stand up 
and let your voices be heard for the rights of those who have 
no voice. Stand up and speak out for the children of the United 
States and their families. The Patient Freedom from Restraint 
Bills are a first step to making the United States a leader in 
the human rights mission. How can we demand adherence to human 
rights standards of other countries, if we do not take a stand 
for human rights here in America? Our children are depending on 
us.
    Thank you.
    Senator Specter. Thank you. Thank you very much, Dr. Allen, 
for sharing with us this tragedy and for your very thoughtful 
recommendations.
    [The statement follows:]
               Prepared Statement of Catherine Jean Allen
    As I appear before you today, I speak with you first as a mother of 
a child who died needlessly. A child who should have been finishing his 
junior year at a local high school now and looking forward to 
fulfilling his dream of earning his diploma as a part of the class of 
2000. I also speak with you from a professional stance as I hold a 
Ph.D., in Child Development and Family Studies.
    On the morning of March 4, 1998, my husband and I attended a 
discharge planning meeting at a private psychiatric facility where our 
son, Tristan, had been for the previous 6 days. He was hospitalized for 
a severe depressive episode and he, his therapist, and we felt he 
needed constant, close supervision while his medications could be 
assessed and changed if needed. At 10:30 that night, Tristan was dead.
    Within 24 hours the coroner reported to us that there was no 
physiological reason for our son's death. Our initial thoughts that 
perhaps he had had some unexplainable heart attack or brain aneurism 
were erased. Within the days and weeks that followed the gruesome 
nightmare of the circumstances of our son's death began to unfold.
    First, there had been a restraint and a seclusion, the second one 
in two days. Mouth coverings had been used both times to prevent 
biting. On the second occasion--not one, but two: a large towel, plus a 
bed sheet. On the evening Tristan died, seven staffers had taken part 
in the take-down, meaning that Tristan had been brought down to the 
floor face down, with arms crossed across his chest; staffers at both 
of his sides, his feet, his hips, and at his head.
    None of us can really know how frightened and panicked he must have 
been, because he had been through a similar ordeal the night before. 
After becoming agitated, he had asked to leave a therapy session, and 
as he got up to leave and brushed by a staff person, he was taken down 
outside the door to the therapy room and placed in seclusion in 
restraints. It is not clear exactly how long he was kept in restraints 
that previous night. Nursing notes were vague indicating that he was 
restrained and put in seclusion during evening group therapy which 
usually occurred around 7:30 PM. The 11:00 PM nursing note indicated 
that he was no longer pulling at the restraints around his wrists. This 
was Tristan's ``therapy'' because he asked to leave a session. We were 
never notified of this intervention. I ask you to consider what it 
accomplished, other than instilling fear, anger, distrust, and rage?
    We learned from the staff that Tristan went limp during the 
restraint which took place in his hospital room on the evening of March 
4. When that happened, no one removed the mouth coverings, nor checked 
to see if his airway was blocked.
    He was carried face-down, down a long hallway to a seclusion room, 
placed on a bed face-down, and had his feet strapped to the foot of the 
bed. No one removed the mouth coverings; still no one assessed his 
breathing status.
    Someone finally thought to call his name; he did not respond. The 
mouth coverings were still held in place.
    The ankle straps were unbuckled, his body was turned over, and the 
mouth coverings were finally removed. CPR was unsuccessful. Tristan was 
dead.
    Official cause of death--asphyxiation.
    The reason for the episode: another adolescent on the unit reported 
to a staff member that Tristan had something with which he was going to 
hurt himself. The small end of what appeared to be a key chain was 
found on the top of his dresser later. It was not in his possession or 
even near him at the time of the takedown.
    Hospital representatives cited Tristan's death as an unfortunate 
incident. They stood by their actions stating that the facility's 
policies and procedures had been followed. In the investigations that 
ensued by the state of North Carolina Facility Services Division, the 
Joint Commission on Accreditation of Healthcare Organizations, the 
Department of Health and Human Services Health Care Financing 
Administration, and the police, some staffers stated that this type of 
restraint with mouth coverings was used approximately 85-90 percent of 
the time, especially with adolescents who were being placed in 
therapeutic holds and/or transported to the seclusion/restraint room.
    When asked to produce the portion of the Policies and Procedures 
Manual, that outlined the use of mouth coverings during holds and 
restraints the facility could not. Later facility spokespersons stated 
that the procedure had ``just evolved over the course of the last 5 
years.'' As a part of their damage control, the facility bought several 
one-page advertisements in the local newspaper, one of which declared 
that ``there are no national standards . . .'' The advertisement also 
touted that the facility ``was accredited with commendation--the 
highest award possible--virtually the entire decade.'' It further 
stated that on their last JACHO evaluation, the hospital had received a 
96 out of a possible 100 points. How could this be?
    A procedure for using a mouth covering during holds and restraints 
to alter a patient's behavior did not exist in a written policy manual. 
Staffers reported that they were never specifically trained when or how 
to use or not to use mouth coverings. This fact was corroborated by the 
Director of Nurses who also stated that the risks of using such a 
procedure were not covered during staff training. CPR certifications 
were out of date. According to news reports, one staffer who was a part 
of the restraint team, had twice been convicted of assault charges.
    Something is very wrong with this picture; and children, 
adolescents, and adults are paying with their lives. It is crystal 
clear that these tragedies have been allowed to occur simply because 
there are no national standards preventing this type of abusive 
restraint and seclusion practice. It is equally clear that the current 
accreditation and monitoring process is woefully inadequate. 
Requirements for staff training must be established, accountability 
must be mandatory, and enforcement must have teeth! We must have in 
place an independent, empowered system of advocacy for these vulnerable 
patients.
    This system must be federally mandated to receive reports of deaths 
and injuries occurring in all facilities so that appropriate 
investigations and corrective action can be instituted. There also must 
be adequate funds devoted to this effort to ensure that we eliminate 
these practices. The current nationwide protection and advocacy system 
is the appropriate vehicle for this task.
    I believe that restraints should only be used as a last resort--
only to insure the immediate safety of the patient or others. 
Restraints should be used only under a physician's written order, and 
in the least restrictive manner possible. Facilities must document the 
specific details of every intervention, but also be required to provide 
evidence of treatment planning to reduce the need for the use of 
restraint and seclusion in the future. These data should be verified by 
patients, patients' families, or other involved persons. This 
information should be made available to the protection and advocacy 
agency in each state, so that the agency can investigate and correct 
systemic abuses. Also, stricter, universal guidelines for the training 
of staff must be established.
    Finally, accountability must be mandatory. Evaluators must take an 
active role in the assessment process which leads to accreditation of 
facilities that care for people with mental illness, emotional and 
behavioral disorders, chemical dependencies, and/or developmental 
disabilities. Evaluations must be rigorous, frequent, thorough, and 
unannounced.
    Patients and their families should not have to be fearful of 
neglect and abuse in the name of therapeutic intervention. Inhumane 
treatment and disrespect for patients as human beings can no longer be 
allowed to be masked under the guise of a facility's offer of 
``compassionate, quality, state of the art care.''
    Too many emotionally vulnerable and behaviorally disordered 
children and adults have already died. But what of those healthy, 
normally developing children and adolescents who find the circumstances 
of their lives too difficult to handle and who begin to act out, who go 
into depressions, who struggle with chemical dependencies and whose 
families seek out professional help at some public or private facility, 
clinic, hospital, or treatment center?
    We have begun to identify those who have not survived restraint and 
seclusion: Tristan Sovern, age 16; Andrew McClain, 11; Mark Draheim, 
14; Edith Campos, 15; and Timithy Thomas, 9; and all the others 
identified by the staff of the Hartford Courant in their investigative 
probe of last October. But what of those who go through this type of 
``therapy'' and live through it? As a last effort, proper, controlled 
restraint in certain circumstances may protect individuals, but being 
manhandled and treated with disrespect and inhumanity will leave these 
people scarred. Internalized feelings of anger, rage, abandonment, and 
worthlessness are added to their already compromised mechanisms making 
them even more vulnerable and emotionally broken. We must seriously 
examine the benefits of this type of routine physical intervention 
against the high costs that patients are paying.
    A young girl wrote to me after Tristan's death. She had been 
hospitalized at the same facility as my son. She was 15, an A/B 
student, an athlete, who found herself, even with the support of her 
family, having severe difficulties navigating the road of adolescence. 
She was involuntarily hospitalized after going in for a therapy 
session. She was placed in the seclusion room and spent the night 
huddled on the floor in the dark wondering if her parents still loved 
her and if they would ever come to get her out of this place.
    She told me that I must never give up on speaking out for the 
rights of children like Tristan, and like herself, for all the 
children. She wrote that I was the only voice some of them had, perhaps 
their only hope.
    Today I urge all of the members of the 106th Congress to stand up 
and let their voices be heard for the rights of those who have no 
voice. Stand up and speak out for the children of the United States and 
their families. The Patient Freedom From Restraint Bills are a first 
step to making the United States a leader in the human rights mission. 
How we can demand adherence to human rights standards of other 
countries if we do not take a stand for human rights here in America? 
Our children are depending on us.
STATEMENT OF WANDA MOHR, Ph.D., ASSISTANT PROFESSOR OF 
            NURSING, UNIVERSITY OF PENNSYLVANIA
    Senator Specter. We now turn to Dr. Wanda Mohr, professor 
and course director of psychiatric mental health nursing at the 
University of Pennsylvania School of Nursing. Dr. Mohr is 
national co-chairperson for research and education for the 
Association of Child and Adolescent Psychiatric Nursing.
    Welcome, Dr. Mohr.
    Dr. Mohr. Thank you.
    Senator Specter. Thank you for joining us, and the floor is 
yours.
    Dr. Mohr. Thank you.
    As a nurse, I am here to tell you that restraints and 
seclusion are the most draconian methods of patient control. I 
have seen them used, and I have broken up situations that could 
have turned potentially tragic.
    Imagine what it must be like to be 12 years old, alone, 
frightened by voices in your head, not understanding what is 
happening, and having 6 to 8 big people surround you, yell at 
you to calm down.
    When you try to run away or defend yourself against these 
monsters gathered around you, they lunge at you and pin you to 
the floor. You cannot breathe, and you tell them. But they pay 
no attention. After all, you are crazy. They dismiss your 
complaints by saying that you are being manipulative. And then 
things begin to go black.
    At worse, you die calling for your mommy and for help that 
never comes. At best, they carry your little body to a bare 
room, strap you to a bed spread-eagle, pull down your pants, 
inject you with drugs, and leave you alone with the horror for 
hours at a time. This scenario plays itself out repeatedly in 
psychiatric hospitals across this country.
    I am an active member of the National Alliance for the 
Mentally Ill, the nation's largest grassroots voice on mental 
illness. On March 25, NAMI released a summary of reports of 
abuse received since the October Courant series. Over 5 months, 
five new deaths have occurred, four were youths under the age 
of 8. One was a 9-year-old boy. And those are only the ones 
that we know about. Five deaths in 5 months.
    As you consider this proposed legislation, please think 
about how many more may die unless you act. I am someone who 
has had a family member with severe and persistent mental 
illness. I am a consumer myself, and I have years of clinical 
and now academic nursing experience. From all of these 
perspectives, I feel competent to talk about some reasons why 
restraint situations go out of control and to give my opinion 
as to what can be done.
    No. 1, seclusion and restraints are psychiatric 
conventions, rather than interventions that are based on 
foundations of research. The use of any therapeutic 
intervention, such as medication or surgery, in health care 
should be based on solid scientific data. This does not happen 
with restraints.
    Lack of meaningful oversight. Hospital accreditation and 
inspection is little more than a check of appropriate 
paperwork. I have been through many such inspections. And 
frankly, the representation of reality by an adequately 
completed form is problematic. There is absolutely no evidence 
that what was written actually happened.
    Lack of staff education and training. The level of employee 
dealing directly with the most vulnerable patients are the ones 
with the least amount of education. There is a pervasive 
attitude in this field that anyone can take care of psychiatric 
patients, especially in the case of children. We have special 
standards for staff members working in critical care or 
emergency units, but not in psychiatric settings.
    As much as critical care units, the acute care units of 
psychiatric hospitals are equally complex and require special 
training and education, especially today when the patients that 
we are seeing are the sickest of the sick.
    I have made a number of recommendations in my written 
testimony. And in the interest of time, what I would like to do 
is to ask you to enter them into the record.
    Senator Specter. They will be fully made a part of the 
record, without objection.

                           prepared statement

    Dr. Mohr. OK. So in the interest of time, I will defer to 
Mr. Rogers, because my recommendations are all those that are 
in the legislation. And I thank you very much and offer myself 
to any questions that you might have.
    Senator Specter. Thank you. Thank you very much, Dr. Mohr.
    [The statement follows:]
                  Prepared Statement of Wanda K. Mohr
    As a nurse I am here today to tell you that restraint and seclusion 
are the most draconian methods of patient control in mental health 
settings. I've seen them used, and I've broken up situations that could 
have turned into potential tragedies.
    Imagine for a moment, if you will, what it must be like to be 12 
years old, alone, frightened by voices in your head, not able to 
understand what is happening, and having six to eight big people 
surround you and yell at you to ``calm down.'' When you try to run away 
or defend yourself against the monsters gathered around you, they lunge 
at you and pin you to the floor.
    In the worst-case scenario you can't breathe and you tell them. But 
they pay no attention--after all, you're crazy. They dismiss your 
complaints by telling each other that you're being manipulative. And 
then things begin to go black.
    In the worst-case scenario, you die, calling for your mommy and for 
help that never comes. In the best-case scenario, they carry your 
little body to a bare room, strap you to a bed, spread-eagle, pull down 
your pants, inject you with drugs, and leave you alone with the 
horror--for hours at a time. This scene is replayed over and over again 
in psychiatric hospitals across this county.
    I am an active member of the National Alliance for the Mentally 
Ill, the nation's largest, grassroots voice on mental illness. As 
someone who had a family member with severe and persistent mental 
illness, and being a consumer myself as well as someone who has years 
of clinical and now academic nursing experience, I feel uniquely 
situated to speak to the issue of restraint.
    Last year, NAMI members in Connecticut played a critical role in 
getting the Hartford Courant to investigate the use of restraint in 
psychiatric facilities--which led to publication of the series that 
documented 142 actual deaths around the country over a decade and that 
commissioned a Harvard University report that estimated between 50 and 
150 deaths annually as a result of restraint.
    On March 25th, NAMI released a summary of reports of abuse received 
since the Hartford Courant series was published in October. Over 5 
months, five new deaths occurred. Four were youths under the age of 18. 
One was a 9-year-old boy. And those are only the ones we know about.
    Five deaths in 5 months.
    As you consider the issue, please think about how many more may 
die.
    Unless Congress acts.
    I am here today to speak to how and why restraint situations go out 
of control and to give my opinion about what can be done to alleviate 
this problem. In the interest of brevity I have bulleted my list so 
that it can be easily perused by this committee, and I will read some 
of those. I do ask that my entire testimony as submitted be entered 
into the congressional record.
    seclusion and restraint are psychiatric conventions rather than 
            interventions based on a foundation of research
    Therapeutic interventions should promote, maintain, or restore 
health or at least prevent further illness from occurring. The use of 
any therapeutic intervention in a clinical setting should be based on 
solid scientific data. To date we have very scant research concerning 
the effectiveness or the effects of restraint use on patients and no 
research on the effectiveness of alternate ways of managing aggressive 
or violent behavior (Walsh & Randell, 1995). Placing a patient in 
restraints remains an unquestioned and accepted ritual of practice 
despite recognition by the psychiatric community that it is governed by 
consensus rather than research (Rubenstein, 1983; Goren, 1991; Goren & 
Curtis, 1997).
                      lack of meaningful oversight
    Based on my experience as a practitioner, hospital accreditation 
and inspection is little more than a check of appropriate paperwork. I 
have been through many such inspections and quite frankly the 
representation of reality by an adequately completed form is 
problematic in that there is no evidence that what was written actually 
happened.
    Visits are announced. Knowing weeks in advance of a JCAHO visit, 
hospital administrators will often assign additional staff and arrange 
for ``charting parties'' in which paper work is cleaned up and brought 
into compliance with standards. This practice was reported and 
documented repeatedly during the investigation of the abuses conducted 
by the state of Texas and former Representative Patricia Schroeder's 
investigation of those abuses (U.S. Government Printing Office, 1992). 
Reports from my colleagues who still practice in clinical settings 
raise serious doubt that much has changed with respect to this kind of 
creative record-keeping.
    There are no penalties for non-compliance. At worst, even in the 
event that accreditation is denied, hospitals do not necessarily suffer 
ill consequences.
    Years ago, we in health care relied on paperwork and asking other 
professionals about the efficacy of ``pain control.'' We finally woke 
up to the fact that the patient is the one who should be asked. While 
it seems commonsensical to ask the patients and families--the experts 
in their own experiences--for their opinions, inspectors do not 
independently meet with patients and families to ask about their 
hospital experience. The mentally ill still have no credibility. This 
puts the onus of ``proof'' on the very people who are in a position to 
alter reality.
                       no procedural consistency
    Procedures, standards and regulatory statements on restraint use 
vary from document to document and from institution to institution. 
Definitions of assault and violence are loose and articulated in the 
vaguest of terms and subject to interpretation (Rice, Harris, Varney, & 
Quinsey, 1989; National Research Council, 1993).
    Standards and regulatory documents are based on a number of 
unspoken assumptions that are not true, and I could be here for many 
hours outlining and debunking them. But I will focus on a single 
example--the assumption that staff members are adequately trained and 
educated in the care of vulnerable individuals and that they can de-
escalate potentially explosive situations. In fact, research conducted 
by nurses reveals that nurses' aides are not cognizant of available 
alternative techniques to restraint (Neary, Kanski, Janelli, Scherer, & 
North, 1991). Over 70 percent of these same aides had attended an 
inservice on the subject one year prior to this study.
    Moreover, so far as I know, procedures for seclusion and restraint 
are developed for the most part without consumer input. Their 
development is driven by external experts rather than the real 
experts--the patients.
    Standards and regulatory guidelines are written by persons who are 
not involved in the decision to employ the restraints. Psychiatrists 
issue guidelines and write orders for the use of seclusion and 
restraint in the abstract. In general they are rarely involved in 
observing the incidents that lead up to the necessity for such 
intervention. They have little day-to-day experience with the cycle 
leading to the intervention and therefore are not in a position to 
monitor, nor help to prevent and reduce their use. Therefore, they 
don't really see this issue as the problem that it is--it simply is not 
part of their reality.
                  lack of staff education and training
    The employees dealing directly with the most vulnerable patients 
are the ones with the least education. This has been the case 
throughout history, and there is ample documentary evidence that speaks 
to this problem (Perrow, 1965; Goffman, 1961; Morrison, 1990).
    There are fuzzy requirements for education and training, which seem 
to be mostly voluntary. One of the first things to be jettisoned when 
money gets tight are staff-development activities (Braxton, 1995). 
Because training and on-going education are not universally required, 
they are considered a luxury more than a necessity.
    There is a pervasive attitude that anyone can take care of 
psychiatric patients, especially in the case of children. We have 
special standards for nursing staff who work in critical care or 
emergency areas, but no such standards in psychiatric settings. As much 
as critical care units, the acute care unit of a psychiatric hospital 
is a complex milieu with a very difficult population whose brains can 
feel as though they are ``on fire.'' This is a situation requiring 
special training and education, especially today when the patients that 
we are seeing are the sickest of the sick.
    There is a lack of developmentally appropriate programming for 
patients. This was another problem that was explored in the National 
Medical Enterprises investigation of the early 1990's. Here I would 
have to reference my own work because almost nothing has been written 
or researched about this topic by any one else. Children of varying 
ages are mixed with everyone else receiving the same ``interventions'' 
for the same periods of time. Four-year-olds do not have the same 
capacity for attention as 14-year-olds, yet they go to 50-minute 
groups. When they act in a developmentally appropriate way, by whining 
or acting up, they are punished and a cycle of aggression is set up 
(Goren, Singh, & Best, 1993).
    There are too few nurses with too little education. Nurses are 
costly; thus the actual number of registered nurses is cut to the bare 
minimum in the interest of profits. Moreover, the education of nurses 
is in and of itself a problem. The majority of nurses (64 percent) do 
not have even a baccalaureate degree (U.S. Dept. of Health & Human 
Services, 1996). Thus, a two-year, associate-degreed registered nurse 
may have 7 to 10 days of exposure to psychiatric content. A four-year 
baccalaureate-degreed nurse has considerably more, but even he/she is a 
generalist. I teach an extremely bright cohort of young people in a 
baccalaureate program, and believe that I do so quite competently. Yet 
I do not believe that the time spent with me qualifies them to work 
with such a complex population.
    Staff turnover has been repeatedly correlated in the literature 
with incidents of violence (Rice, Harris, Varney, Quinsey, 1989). Staff 
turnover results from poor pay, poor working conditions, and high 
levels of stress and frustration due to both a very challenging 
population and the lack of skills needed to work with that population 
(Braxton, 1995).
 a psychiatric culture that is in serious need of self-reflection and 
                                 reform
    Despite much progress in psychiatry and an insistence that 
psychiatric illness is brain illness, many psychiatric professionals 
still want to play under a different set of rules than their colleagues 
in other specialties. A situation in which a restraint takes place is 
an acute psychiatric emergency that is analogous to any other emergency 
in medicine, and it should be handled by medical personnel as such. A 
cardiologist would not dream of relegating the assessment of his/her 
patient to a staff member after such an event. They would grumble and 
roll themselves out of bed to do what they are responsible for doing--
assess the patient. Yet during this debate psychiatrists have resisted 
our suggestions that they subscribe to the same standards of practice.
    Resistance to advocacy groups is common. My experience has been 
that with many nurses and psychiatrists there is a general attitude 
that advocacy groups are a nuisance and that they make life more 
difficult for both groups.
    Resistance to shared decision-making and a participative model of 
care is also common. Nurses and MD's resist consumer input and the 
input of their families, even though the families are the repositories 
of the best information about interventions that may help in treatment. 
They are reluctant to give up any power to families and patients as the 
ontological arbiters of what is ``normal.'' Patient's (and their 
families') experiences are discounted and considered lacking in 
credibility. Historically we have learned little from Rosenhan's (1973) 
work in which he observed that psychiatric staff members ``keep to 
themselves, almost as if the disorder that afflicts their charges is 
somehow catching.'' (p. 254)
    I've made a number of recommendations in my written testimony, but 
I'd like to highlight just a few today.
  --Identify, evaluate, and implement promising practices while we 
        conduct clinical research studies into theory and intervention.
  --Back research agendas on this issue. Funds to specifically study 
        restraint use, misuse and best practices must be allocated to 
        agencies such as NIMH (National Institute of Mental Health), 
        NIJ (National Institute of Justice), and NINR (National 
        Institute for Nursing Research).
  --Insist on greater physician accountability and involvement.
  --Mandate unscheduled oversight by independent agencies/persons that 
        goes beyond exercises in paperwork that is not announced ahead 
        of time.
  --Require systematic reporting of restraint/seclusion incidents to an 
        independent agency.
  --Mandate reporting of sentinel events such as injury and death.
  --Develop consistent standards for restraint use that are patient- 
        and not staff/physician-focused, and include consumers in the 
        development of these standards. Base such standards on the 
        concept that restraints may only be used for emergency safety 
        situations.
  --Mandate staff orientation and ongoing education and training that 
        is fully documented. The literature provides considerable 
        support for the idea that significant reductions in 
        institutional violence could be achieved by a staff training 
        program aimed at teaching non-restrictive and non-authoritarian 
        ways of interacting with residents.
  --Increase standards for those who can be hired to work with 
        psychiatric patients. For example, nurses should be certified 
        and have advanced training, and aides or mental health 
        technicians should have a high school education and special 
        training and education in the care of psychiatric populations.
  --Insist that patients and their families are given free access to 
        members of advocacy groups and that the telephone numbers of 
        advocacy groups be prominently displayed in the living areas of 
        each facility and also given individually to each patient upon 
        admission.
  --Provide protection from retaliation to staff members for their 
        advocacy efforts on behalf of patients.
                               references
    Braxton, E.T. (1995). Angry children, frightened staff: 
Implications from training and staff development. In D. Piazza (Ed.). 
When love is not enough: The management of covert dynamics in 
organizations that treat children and adolescents (pp. 13-28). New 
York, N.Y.: The Hawthorne Press.
    Goffman, E. (1961). Asylums: Essays on the social situation of 
mental patients and other inmates. Garden City, N.Y.: Doubleday Anchor 
Books.
    Goren, S. (1991). What are the considerations for the use of 
seclusion and restraints with children and adolescents. Journal of 
Psychosocial Nursing and Mental Health Services, 29(2), 32-33.
    Goren, S., Singh, N.N., & Best, A.M. (1993). The aggression-
coercion cycle: Use of seclusion and restraint in a child psychiatric 
hospital. Journal of Child and Family Studies, 2(1), 61-73.
    Goren, S. & Curtis, W.J. (1996). Staff members' beliefs about 
seclusion and restraint in child psychiatric hospitals. Journal of 
Child and Adolescent Psychiatric Nursing, 9(4), 7-11.
    Morrison, E.F. (1990). The tradition of toughness: A study of 
nonprofessional nursing care in psychiatric settings. Image: Journal of 
Nursing Scholarship, 22(1) 32-38.
    National Research Council (1993). Understanding and preventing 
violence. Washington, D.C.: Author.
    Neary, M.A., Kanski, G.W., Janelli, L.M., Scherer, Y.K., North, 
N.E. (1991). Restraints as nurse's aides see them. Geriatric Nursing, 
July/August, 191-192.
    Perrow, C. (1965). Hospitals: Technology, structure, and goals. In 
J.G. Marsh (Ed.), Handbook of organizations (pp.47-60). Chicago, IL: 
Rand-McNally.
    Rice, M.E., Harris, G.T., Varney, G.W., Quinsey, V. (1989). 
Violence in institutions: Understanding, prevention and control. 
London, U.K.: Hans Huber Publishing.
    Rosenhan, D. (1973). On being sane in insane places. Science, 179, 
250-258.
    Rubenstein, H. (1983). Standards of medical care based on consensus 
rather than evidence: The case of routine bedrale use for the elderly. 
Law Medicine and Health Care, 11, 271-276.
    U.S. Government Printing Office (1992). Profits of misery: How 
inpatient psychiatric treatment bilks the system and betrays our trust. 
Washington, D.C.
    U.S. Dept. of Health & Human Services. (1996). National advisory 
council on nurse education and practice: Report to the Secretary of the 
Dept. of Health and Human Services on the basic registered nurse work 
force. Washington, D.C.
    Welsh, E. & Randell, B. (1995). Seclusion and restraint: What we 
need to know. Journal of Child and Adolescent Psychiatric Nursing, 8 
(1), 28-40.
STATEMENT OF JOSEPH ROGERS, EXECUTIVE DIRECTOR, MENTAL 
            HEALTH ASSOCIATION OF SOUTHEASTERN 
            PENNSYLVANIA, NATIONAL MENTAL HEALTH 
            ASSOCIATION
    Senator Specter. Thank you for observing the time limit.
    We now turn to Mr. Joseph Rogers, executive director of the 
Mental Health Association of Southeastern Pennsylvania and of 
the National Mental Health Consumer Self-Help Clearing House. 
Mr. Rogers brings both professional and personal insights into 
this issue, having first-hand experience with restraints during 
his own hospitalization for mental illness.
    We appreciate your sharing with us your own private 
experiences, Mr. Rogers. Thank you for joining us, and the 
floor is yours.
    Mr. Rogers. Thank you, Senator Specter and Senator Harkin. 
On behalf of the Mental Health Association, the National Mental 
Health Association, I really want to congratulate you on having 
this hearing.
    I, too, have extensive remarks that I hope can be entered 
in the record.
    Senator Specter. They will be made a part of the record in 
full.
    Mr. Rogers. But briefly, as an advocate, as well as someone 
who has survived being put in seclusion in restraints, I am 
deeply concerned about this deplorable practice. My knowledge 
of the subject was gained first hand. One of my worst 
experiences was in a private hospital in Florida. I had been 
brought into the emergency room from a halfway house on a 
Friday evening. Although I was fairly subdued, I was taken to a 
room with thick, opaque glass doors and strapped to a platform 
in five-point restraints.
    These are the kinds of restraints that they use in 
restraining someone. You get two across the arms around the 
restraints on the platform, two across on the legs and----
    Senator Specter. That one is not quite big enough for you, 
though, is it?
    Mr. Rogers. They get them bigger. They have them big.
    There were two each on my wrists and ankles and around and 
across my chest. No sound penetrated the room, which contained 
nothing but the platform to which I was strapped. Over the next 
2\1/2\ days, I was psychotic and hallucinating and in and out 
of consciousness. I was left alone to lie in my urine and 
excrement until someone came to clean me up once.
    When the regular staff replaced the weekend staff on 
Monday, they found me filthy and dehydrated. They were shocked 
and kept saying that I must have done something to warrant such 
treatment. But I did not know what I had done.
    This may sound extreme, but I have heard many similar 
stories. What can be done to stop the abuses we see every day 
in the use of restraints? One, we must move away from 
institutions toward community-based treatment. We must 
safeguard the rights of people in institutions. The effort to 
protect people's rights is central to Pennsylvania's move 
toward the elimination of seclusion and restraints in its state 
and private mental hospitals.
    I would also like to point out that people with 
developmental disabilities are also put at risk by the use and 
abuse of restraints.
    I understand that the American Psychiatric Association is 
claiming that the proposed legislation will have a chilling 
effect on treatment options and safety issues.
    Well, there is nothing more chilling than death. And people 
are dying as a result of this so-called treatment, which in 
reality indicates a treatment failure. We must document that 
failure so that we can make needed changes in our system.
    Information on the use of restraints is key. One mechanism 
for disseminating such information might be under the State 
Mental Health Planning Act, which requires that every state 
submit a mental health plan to the Federal Substance Abuse and 
Mental Health Services Administration. That plan could require 
information on the use of restraints broken down by state and 
local hospitals, so that a pattern of usage can emerge.
    We must involve consumers and family members and the 
community in helping develop policies and procedures. We are 
advocating for a national program of self-advocacy training for 
consumers of mental health services, because we find that 
consumers make the best advocates on such issues as the abuse 
of restraints. This program would be implemented through the 
protection and advocacy agencies with the assistance of the 
National Mental Health Association.

                           prepared statement

    As I mentioned, we must move away from institution toward 
community treatment. In the meantime, people who find 
themselves hospitalized must be assured of a safe place. Toward 
this end, we would like to see the days when the last available 
set of restraints is placed under plexiglass saying ``obsolete 
equipment.'' We hope proposed legislation takes one step 
towards that day.
    Thank you for your attention.
    Senator Specter. Thank you very much, Mr. Rogers.
    [The statement follows:]
                 Prepared Statement of Joseph A. Rogers
    Senator Specter, on behalf of the National Mental Health 
Association as well as the Mental Health Association of Southeastern 
Pennsylvania, of which I am executive director, I want to thank you for 
holding this hearing on seclusion and restraints.
    I'm here today because I have survived the experience of being put 
in seclusion and restraints. As an advocate as well as someone who may 
need acute psychiatric services in the future, I am deeply concerned 
about this deplorable practice, which has been responsible for numerous 
deaths as well as many more instances of trauma in those who have 
experienced it.
    I'm here to testify that massive changes in the system are needed 
in order to protect the lives of people with mental illness.
  --First, we must move away from institutions toward community-based 
        treatment. It has been repeatedly demonstrated that people do 
        better in the community, and that the behaviors that get them 
        in trouble, and into restraints, are a product of conditions in 
        the institution. I've been there, and no one should have to be 
        subjected to those kinds of conditions, where people are 
        crammed into a small room to spend their days with little to 
        engage them. This kind of stress definitely has an impact on 
        behavior. So we need to get people out of the institutions.
  --Second, we must safeguard the rights of people in institutions. The 
        effort to protect people's rights is central to Pennsylvania's 
        move toward the elimination of seclusion and restraint in its 
        state hospitals, about which I will provide details later in my 
        testimony. It is my understanding that the American Psychiatric 
        Association is opposing the proposed legislation and is 
        claiming that it will have a chilling effect on ``treatment 
        options'' and ``safety issues.'' Well, there is nothing more 
        chilling than death, and people are dying as a result of this 
        so-called treatment, which in reality indicates a treatment 
        failure. And we must document that failure so that we can make 
        the needed changes in our system.
  --Third, we need to involve consumers, family members and the 
        community in helping develop policies and procedures, and in 
        monitoring this situation. And we need your help: we need 
        federal legislation that mandates that information be gathered 
        and disseminated. And we need to make that information public. 
        Then we must ensure that consumer-run self-help organizations, 
        family organizations, and advocacy organizations such as Mental 
        Health Associations and Protection and Advocacy agencies get 
        the information they need and have the necessary access to 
        monitor this very dangerous practice.
    That being said, I am testifying in support of the legislation 
proposed by Senators Joseph Lieberman and Christopher Dodd and by 
representatives Pete Stark, Diana DeGette and Rosa DeLauro. We consider 
this legislation a good first step in regulating the use of seclusion 
and restraints.
    At the same time, it is important to note that the legislation does 
not go far enough. ``Far enough'' would mean instituting regulations 
that would either outlaw the use of seclusion and restraints, or make 
it nearly impossible to employ them.
    In Pennsylvania, our top mental health official, Charles G. Curie, 
has made it a goal to eliminate the use of seclusion and restraints in 
state mental hospitals. This goal has already been achieved in one 
state hospital: for the six months before it closed, as part of 
Pennsylvania's progressive shift toward community-based services, 
Haverford State Hospital did not employ seclusion and restraints.
    My testimony will cover the Pennsylvania model, as well as my own 
personal experience with seclusion and restraints. I will also suggest 
ways that the proposed legislation could be made more effective.
    My knowledge of this subject was gained firsthand; I have been 
repeatedly hospitalized for mental illness and have experienced 
seclusion and restraints a number of times.
    One of my worst experiences was in a private hospital in Florida. I 
had been brought to the emergency room by ambulance from a halfway 
house on Friday evening. Although I was fairly subdued, I was 
immediately taken to a room with thick, opaque glass doors and strapped 
to a sort of platform in five-point restraints: two each on my wrists 
and ankles and one across my chest. No sound penetrated the room and, 
since it contained nothing but the platform to which I was strapped, 
there was a nearly complete sense of sensory deprivation.
    Over the next two-and-a-half days I was psychotic and 
hallucinating, and passed in and out of consciousness. I remember being 
given some shots. I don't remember getting anything to eat or drink, 
although I suppose I must have. I was left alone to lie in my own urine 
and excrement, until someone came to clean me up, once. Most of the 
time, I was ignored.
    When the regular staff replaced the weekend staff on Monday 
morning, they found me filthy and dehydrated. They were shocked, and 
kept asking, ``What did you do? You must have done something.'' I had 
no answer; I did not know what I had done.
    This may sound extreme, but I have heard many similar stories.
    Obviously, no one's definition of ``best practices'' would include 
my experience in Florida. But, unless restraints are outlawed, there 
will always be the possibility that inexperienced staff will over-react 
and violate procedures.
    For example, a couple of years ago, when I was left in restraints 
overnight at a respected private psychiatric hospital in Philadelphia, 
I was told later that this was ``against hospital procedures.'' 
Unfortunately, because of chronic staff shortages and other 
administrative shortfalls, not to mention staff who are punitive or 
frightened, it seems to be a given that procedures will be violated on 
a regular basis. ``Best practices'' may dictate the use of restraints 
only in extreme cases of risk to the patient or others; but this is not 
what happens.
    In fact, many consumers of mental health services steer clear of 
going to emergency rooms to seek psychiatric help because of the risk 
that, if they seem agitated, they may wind up in seclusion and 
restraints.
    Unless any policy statement outlaws restraints or at least makes it 
nearly impossible to employ them, there is going to be abuse. If you 
have an inexperienced nurse at midnight who is terrified of the 
patients, policies tend to go right out the window. By the same token, 
if you don't have a room equipped with a table to strap people onto, 
that's the best guarantee that people won't be restrained against 
policy.
    It's also vital to make sure that chemical restraints are not 
substituted for tables and straps. When I have been heavily medicated 
to make me ``calm down,'' I have found that the effects can last for 
weeks.
    Educating staff in the use of alternatives to restraints is more 
important than creating policy to govern the use of restraints, since 
policy is so often violated.
    For the reasons described above and the ones that follow, I fully 
support the decision of Pennsylvania's top mental health official, 
Charles G. Curie, to establish the goal of eliminating seclusion and 
restraints in state hospitals.
    First, seclusion and restraint are not treatments; they are 
treatment failures.
    Second, seclusion and restraint are high-risk techniques that may 
result--and have resulted--in injury or death to the patient, both 
while the patient is being subdued and afterward. In addition, staff 
injuries decline in frequency and severity when the need for physical 
interventions with patients is eliminated.
    Third, a high percentage of state hospital patients are trauma 
survivors, and seclusion and restraint are themselves traumatic, for 
both patients and staff. Hospitals cannot cause trauma and effectively 
care for people.
    Fourth, the use of seclusion and restraint fosters an atmosphere of 
staff control over patients rather than the desired treatment 
partnership.
    In 1995, when Mr. Curie assumed his duties as Deputy Secretary for 
Mental Health in Pennsylvania, he found that there was a relatively 
high usage of seclusion and restraint in some state hospitals.
    With the support of others in the department, he took the first 
step of redefining the use of seclusion and restraint as a treatment 
failure, only to be used as a safety measure of last resort, when all 
other types of intervention have failed. This resulted in clinicians 
using alternative interventions, and led to a significant reduction in 
seclusion and restraint in most state hospitals.
    The Office of Mental Health thus created an environment in which 
all staff expect to see a reduction in the use of seclusion and 
restraint and the risks associated with their use.
    This shift in attitude has been accompanied by dramatic changes in 
policy and procedure, Mr. Curie has reported. For example, the 
department's Bureau of Hospital Operations has developed a system-wide 
monitoring tool that measures and compares the incidence and duration 
of seclusion and restraint in all hospitals. Increased emphasis has 
also been put on staff training on clinical alternatives to the use of 
seclusion and restraint, as well as ongoing reinforcement by management 
of reducing usage at each hospital. Consequently, Pennsylvania has 
continued to see a substantial reduction in the incidence and duration 
of use of these techniques.
    As Mr. Curie recently said:
    ``Pennsylvania's experience proves that the use of seclusion and 
restraint can be eliminated or greatly reduced when there is a 
treatment environment that focuses on the strengths of the individuals 
being served; that protects patients' dignity, comfort, and privacy; 
that promotes constructive interaction and partnership between staff 
and patients; that eliminates arbitrary ward rules developed for staff 
convenience; that fosters patients' ability to make choices and have a 
greater understanding of their own behavior; and that involves 
management and staff in planning how to reduce the incidence of 
seclusion and restraint.
    ``The options available today make the elimination of seclusion and 
restraint an extremely realistic goal. One such option is use of a new 
generation of antipsychotic medications, which are more effective in 
reducing the symptoms that lead to aggressive behavior. Clearly, 
medication should be administered only in the context of a treatment 
plan in order to relieve symptoms, and not as a chemical restraint.
    ``Clinicians also have a better understanding of the use of verbal 
de-escalation techniques to avert physical confrontation. In addition, 
providing more hours of active treatment and more structure and 
activity for patients during the day would leave less time for 
conflicts to erupt between patients and staff.''
    The Pennsylvania Office of Mental Health and Substance Abuse 
Services has instituted a standardized, universal risk assessment 
procedure to help identify people who may exhibit behaviors that could 
put them at risk of seclusion and restraints, and to target those risks 
through treatment planning. The objective is to help people learn to 
manage their anger instead of waiting until a crisis erupts.
    After any sort of seclusion or restraint is used--and that is only 
in the most extreme cases--Pennsylvania policy requires a debriefing so 
that patients and staff can talk about the incident, figure out what 
may be learned from it, and use those lessons in the treatment planning 
process in order to avoid similar incidents. This also allows both 
staff and patients an opportunity to deal with the trauma associated 
with their use.
    The Office of Mental Health and Substance Abuse Services is 
establishing a baseline and using that to measure the incidence of 
seclusion and restraint periodically in each state hospital. And the 
state plans to share that and other such information publicly. Any 
licensed entity that provides mental health care--especially those that 
are publicly funded--must be accountable to the public. That includes 
accountability about seclusion and restraint.
    The legislation that has been proposed in the Senate would keep 
confidential any investigations and analyses developed in the wake of a 
death, whereas the legislation proposed in the House would make this 
information public. In this regard, the House legislation is superior. 
The only way things can change is if there accountability to the 
public, and if state Protection and Advocacy agencies as well as 
citizen advocacy organizations know and can comment on policies, on how 
those policies are being implemented or are not being implemented, and 
on whether the incidence of restraint use is reported on a regular 
basis.
    One mechanism might be under Public Law 99-660, the State Mental 
Health Planning Act, which requires that every state submit a mental 
health plan to the Substance Abuse and Mental Health Services 
Administration. The plan could require information on the utilization 
of restraints. This information should be broken down by state 
hospital, so that a pattern of utilization can emerge. The advocacy 
community can then focus their attention in particular on institutions 
with a high usage of restraints.
    As I mentioned above, the effort to eliminate seclusion and 
restraints has already been successful in at least one state hospital: 
for six months before Haverford State Hospital closed, there was no use 
of seclusion and restraints and there was a decrease in the use of 
medication.
    Aidan Altenor initiated the effort to end seclusion and restraints 
when he was Haverford's superintendent; he credits Deputy Secretary 
Curie with providing the impetus. He has since been working toward the 
same goal at Norristown State Hospital, where he now serves as 
superintendent.
    Mr. Altenor described methods, which were successful at Haverford, 
that can lead to eliminating restraints.
    First, as mentioned above, the use of restraints must be re-defined 
as a treatment failure. As Dr. Altenor said, ``This is not a clinical 
intervention; this is tying you to a bed.''
    Second, a one-hour limit must be set on the period for which a 
physician can write a restraint order; the patient must then be 
reassessed. In Haverford's past, there was no such time limit. Dr. 
Altenor noted that, at Norristown State Hospital, the nursing staff 
plays a critical role in determining whether someone needs to remain in 
restraints for the full time period for which the order was written. 
That is, a nurse may determine that someone may be released from 
restraints in 10 or 15 minutes, although the order was for an hour.
    Third, when someone exhibits behavior that the staff may consider 
cause for using seclusion and restraints, staff must attempt to 
determine what someone is trying to communicate and must ask how the 
person's treatment plan can be revised to be more responsive to that 
person's needs.
    Fourth, the staff must review with the patient any incident that 
has led to seclusion and restraints, and must ask what to do if there 
is a similar incident in the future. This is common sense, it involves 
listening to the consumer and saying, `Oh, that's what you want us to 
do; we can do that.' Often, this is something as simple as going for a 
walk. Dr. Altenor said that this approach has played a significant role 
in eliminating the use of restraints for many people.
    Dr. Altenor added that when clinicians suspend judgment about what 
they believe to be the most appropriate clinical intervention and go 
with what the consumer wants, everyone ends up winning. With patients 
who are not able to provide straightforward feedback, clinicians must 
apply critical acumen to translate their messages so that they can 
respond with more supportive interventions.
    It is also extremely important to hold training sessions where all 
points of view are represented.
    At Haverford State Hospital, panel discussions among consumers, 
family members and professionals were presented. Besides personal 
testimony, the sessions also included data on what happens when people 
are in restraints, such as the increased risk of injury to both staff 
and patients. Prevention was also stressed.
    Dr. Altenor said that the most compelling aspect of the sessions 
was the consumers' stories about how it felt to be in restraints. Many 
people said that they felt violated, and at the mercy of whoever was 
walking around in the room. They felt they were being punished for 
aspects of their illness over which they had no control, adding insult 
to injury. He said that hearing the consumers' perspective was an eye-
opener.
    Clearly, the consumer perspective is the most important one. We are 
advocating for a national program of self-advocacy training for 
consumers of mental health services, because we find that consumers 
make the best advocates on such issues as the abuse of restraints. This 
program would be implemented through Protection and Advocacy agencies 
with the assistance of the National Mental Health Association.
    We would also like to see a requirement for the establishment of 
consumer/family/volunteer monitoring teams at psychiatric facilities. 
These teams would serve as a vital ombudsman when situations arise in 
which restraints may be applied. In Pennsylvania as in many other 
states, we already have peer advocates working in state hospitals, as 
well as peer-run drop-in centers in hospitals.
    And, as I mentioned at the beginning of my testimony, we must move 
away from institutions toward community-based treatment.
    I would like to talk about two of the individuals whose stories are 
told in an amici curiae brief filed with the U.S. Supreme Court by the 
National Mental Health Consumers' Self-Help Clearinghouse, of which I 
am also executive director, and other consumers and consumer 
organizations. The brief was filed in the Olmstead case, which is a 
challenge to the community integration mandate of the Americans with 
Disabilities Act.
    Both of these individuals--Margaret Donahue and James Price--spent 
a lot of time in seclusion and restraints when they were residing in 
state hospitals. As James Price described the conditions: ``It was hard 
living there. I had to stay in a day room and wasn't able to get out. 
We had a dormitory with eight to ten people. I got in trouble there a 
lot. They would put me in seclusion and restraints and give me 
needles.''
    For the last eight years, however, he has lived in his own 
apartment in Philadelphia, and he enjoys his freedom. He does volunteer 
work, goes to the movies, and has his eight-year-old niece over to 
stay.
    Margaret Donahue also spent most of her life in institutions. She 
now lives in Willow Grove, Pennsylvania, in a house she shares with two 
other women, both of whom were also patients at the state hospital. The 
house is a ``supported living'' residence, with round-the-clock 
staffing.
    In the hospital, she reported, she spent a lot of her time in 
restraints because of fighting and banging her head. In the community, 
she has none of those problems. She entertains visitors, and sometimes 
goes to church. She also does her own housework, and has a part-time 
job cleaning houses. In her words, ``It's better living in my house 
[than in the hospital]. You can't live in the hospital all your life.''
    No, you can't. But those people who do find themselves hospitalized 
must be assured of a safe place. Toward this end, we would like to see 
the day when the last available set of restraints is displayed in a 
Plexiglas case, under a sign saying ``obsolete equipment.'' We hope the 
proposed legislation takes us one step closer to that day.
    Thank you for your attention.
STATEMENT OF DENNIS O'LEARY, M.D., PRESIDENT, JOINT 
            COMMISSION ON ACCREDITATION OF HEALTH CARE 
            ORGANIZATIONS
    Senator Specter. We now turn to Dr. Dennis O'Leary, 
President of the Joint Commission on Accreditation of Health 
Care Organizations. Dr. O'Leary has served as dean of the 
Clinical Affairs Unit at George Washington University Medical 
Center and Vice President of the George Washington University 
Health Plan.
    Thank you for joining us, Dr. O'Leary. We look forward 
hearing from you.
    Dr. O'Leary. Thank you, Senator Specter.
    On behalf of the Joint Commission on Accreditation of 
Health Care Organizations, I would like to thank you and the 
other members of the subcommittee for holding these hearings to 
address the very serious problem surrounding the improper use 
of physical restraints on patients in psychiatric facilities. 
We appear here today as a very committed part of the solution 
to eliminating the occurrence of these tragic events.
    Over the past half century, the Joint Commission has made 
significant contributions to protecting patient rights, 
enhancing patient safety and reducing restraint use in the 
nearly 20,000 health care organizations it accredits. Long-
standing Joint Commission accreditation standards cover the 
full range of issues relating to the use of restraints.
    These include clinical justification for use, staff 
training and strategies for limiting the use of restraints. 
Application of these standards has reduced the use of 
restraints in accredited organizations.
    In 1995, patient safety became a pivotal focus of the Joint 
Commission's oversight efforts. During that year, we began an 
intense effort to evaluate restraint-related deaths in 
accredited organizations as part of a broader initiative to 
gain knowledge about serious adverse occurrences in the care of 
patients. This initiative took its origins in the midst of an 
apparent outbreak of widely publicized, unanticipated serious 
injuries and deaths.
    The existence of these serious occurrences, which we call 
sentinel events, was a clarion call to the Joint Commission and 
others that far greater efforts needed to be made to improve 
the safety and quality of health care.
    In this process, the Joint Commission has become the 
nation's leader in facilitating the identification of sentinel 
events and working with organizations to reduce the risk of 
future occurrences and in sharing lessons learned. Today the 
Joint Commission requires accredited organizations to identify 
all sentinel events and address their underlying causes. 
Failure to do so places the organization for risk of loss of 
its accreditation.
    The Joint Commission believes that asking organizations to 
identify and report unexpected deaths and injuries is the first 
step in the process of reducing in the incidences of sentinel 
events. No entity charged with oversight responsibilities can 
take appropriate action without this kind of information. That 
reporting responsibility for restraint-related deaths must lie 
on the organizations where care is being provided.
    But if mandatory reporting of restraint-related deaths is a 
necessity, we must recognize that it will not, by itself, be 
sufficient in reaching the goal of eliminating these tragic 
events.
    The Joint Commission's board of commissioners has taken the 
position that the most effective way to reach this goal is to 
mandate the reporting of restraint-related deaths as part of an 
oversight framework that also facilitates a no-holds-barred 
internal self-evaluation process. However, to achieve this 
objective, these root cause analyses must be protected from 
public disclosure by federal legislation.
    We must emphasize that the creation and sharing of these 
highly sensitive documents with monitoring agencies will be 
resisted unless they are afforded a peer review-like protection 
similar to what the states now have in place for hospital 
internal quality review.
    Early this year, our board of commissioners appointed a new 
high-level restraint use task force, which will conduct a 
thorough reevaluation of the Joint Commission's current 
restraint standards, on-site evaluation process and other means 
for accessing information about restraint use. That task force 
is expected to make its final recommendations to the board by 
the end of this year.
    The task force has launched its efforts by initiating a 
series of public hearings across the country. These hearings 
are designed to elicit input from the public and other 
interested parties regarding the current oversight process and 
what can be done to make it more searching and meaningful.
    We are also seeking dialogue with the health professional 
communities, because we believe that more than just the 
accreditation process must change. There must also be a 
significant reevaluation of what are considered acceptable 
practices and behaviors in providing psychiatric and 
psychological care.
    The reduction of restraint-related deaths and other 
sentinel events is one of the most important issues facing us 
today. Again, we applaud the subcommittee's leadership on this 
issue.

                           prepared statement

    We support and welcome the opportunity to bring together 
the strength of the public and private sectors to address these 
issues. And we look forward to working with you in doing 
whatever is necessary to prevent other deaths from occurring.
    Thank you.
    Senator Specter. Thank you very much, Dr. O'Leary.
    [The statement follows:]
                  Prepared Statement of Dennis O'Leary
    On behalf of the Joint Commission on Accreditation of Healthcare 
Organizations, I would like to thank Chairman Specter and the other 
members of the Subcommittee for holding these hearings to address the 
very serious problems surrounding the improper use of physical 
restraints on patients undergoing psychiatric or psychological 
treatment, and I am very pleased to provide our recommendations for 
appropriate action. We appear here today as a very committed part of 
the solution to eliminating the occurrence of these tragic events.
    There should be zero tolerance for the types of deaths we have all 
read about in the Hartford Courant series. Many of the 142 patients who 
died in relation to the use of restraints were children and 
adolescents. Ms. Allen's testimony about her son is especially heart 
wrenching and is nothing less than a call to action for all in the 
health care system who have not already taken serious steps to change 
the status quo.
    The Joint Commission views this hearing as a major opportunity to 
begin to build consensus on effective safeguards for reducing the 
likelihood of restraint-related deaths. This will be a daunting task, 
for there are few things in health care as challenging as the 
appropriate management of restraint use. The issues to be dealt with go 
to the very heart of patient rights, patient safety, and the safety of 
health care workers. Significant opportunities exist in improving staff 
training, identifying and sharing best practices, and developing and 
using effective alternatives to restraints. But the most immediate need 
is the design of an oversight framework which establishes clear 
accountabilities, and facilitates learning from each tragedy that 
occurs without driving the reporting of such incidents underground.
    Over the course of its long history, the Joint Commission has made 
significant contributions to protecting patient rights, enhancing 
patient safety, and reducing restraint use in the nearly 20,000 health 
care organizations it accredits. We have had extensive patient rights 
standards for many years that set clear expectations regarding personal 
interactions with patients, specify the information patients must be 
given about their rights, and describe the physical, social, and 
cultural environments necessary to the effective support of patient 
care. Joint Commission standards have, as well, delineated requirements 
for patient safety, while protecting the dignity with which patients 
are being treated. Professionals in the behavioral health care field 
can attest to the Joint Commission's pioneering efforts in these areas 
over the past several decades.
    Joint Commission accreditation standards have also had a positive 
effect on identifying and addressing inappropriate use of restraints. 
While the organizations we accredit have long evidenced difficulty in 
fully meeting these standards, their performance has progressively 
improved in recent years and most behavioral health care professionals 
would be quick to acknowledge their impact in reducing inappropriate 
restraint use.
    Because of their high visibility and importance, the restraint 
standards are frequently reviewed and updated in collaboration with 
expert professionals, advocacy groups and other stakeholders. These 
standards cover a range of important issues, including clinical 
justification for use of restraints, staff orientation, and education, 
and strategies for limiting the use of restraints--and are more 
comprehensive than comparable standards used by other accreditors, the 
states or the Health Care Financing Administration (HCFA).
    In 1995, patient safety assumed an increasingly prominent role in 
the Joint Commission's agenda. During that year, we began an intense 
effort to evaluate and monitor restraint-related deaths in accredited 
health care organizations as apart of a broader initiative to gain 
awareness and knowledge about and resolve serious adverse occurrences 
in the care of patients. This initiative took its origins in the midst 
of an apparent ``outbreak'' of widely publicized unanticipated serious 
injuries and deaths. The importance of this effort to the Joint 
Commission lay, and continues to lie, in the fact that our 
accreditation process is fundamentally designed to reduce risk to 
patients. The existence of these serious occurrences--which we call 
``sentinel events''--was a clarion call to the Joint Commission and 
others that more needs to be done to improve the safety and quality of 
health care.
    Since 1995, the Joint Commission has become the nation's leader in 
facilitating the identification of sentinel events, in working with 
specific organizations to reduce the risk of future occurrences and in 
sharing ``lessons learned'' with other accredited organizations. This 
has been both an enlightening and sobering experience. The risk of 
errors is high--an inevitable correlate of the intense human effort 
involved in patient care, the growing complexity of care, the 
expectation that care be provided with fewer resources, and other risk 
enhancing factors--and it appears that a significant number of errors 
and even sentinel events, are not reported within organizations. There 
is much to be done.
    Today the Joint Commission requires accredited organizations to 
identify all sentinel events and address their underlying causes. 
Current policy also encourages the voluntary reporting of sentinel 
events to the Joint Commission, and where the Joint Commission becomes 
aware of a sentinel event--either self-reported (80 percent) or through 
other sources such as the media (20 percent)--the organization is 
required to perform and make available to the Joint Commission an in-
depth analysis of the underlying causes and an appropriate action plan. 
Failure to do so places the organization at risk for loss of its 
accreditation. It is the Joint Commission's experience with the 
sentinel event reporting program that provides us with the unique 
perspective we wish to share with you today, toward the end of 
eliminating the types of tragedies that bring us here today.
    The most immediate and obvious issue is that the litigious 
atmosphere in which health care is provided in this country constrains 
the willingness of accredited organizations to self-report sentinel 
events and, in a very real sense, to run the risk of self-indictment 
through sharing their sentinel event analysis with a private sector 
accrediting body. With these concerns in mind, the Joint Commission 
sought federal legislation last year to protect these analyses. We were 
particularly pleased to have our legislative initiative supported by 
the Leadership of the House of Representives and subsequently passed by 
the House in last year's Patient Protection Act.
    But even stronger medicine is needed to bring these tragic 
occurrences to the surface and deal with them. Our understanding of the 
complexities and sensitivities attending effective reporting programs 
leads us to be very supportive of the mandatory reporting provisions 
for restraint-related deaths contained in Senators Lieberman and Dodd's 
Freedom from Restrain Act of 1999 (S.736) which incorporates and 
expands upon the important strategic concepts in the Patient Protection 
Act respecting sentinel event reporting. We believe S. 736 would 
provide the groundwork for a public/private sector partnership that 
could strengthen the value of voluntary accreditation in promoting 
patient safety and extend the most successful aspects of the sentinel 
event program to non-accredited health care organizations participating 
in Medicare and Medicaid.
                               reporting
    Reporting unexpected deaths and injuries is the first step in the 
process of reducing the incidence of sentinel events. Obviously, no 
entity charged with oversight responsibilities can act without 
information. Reporting should be the responsibility of the 
organizations experiencing the sentinel events, and reporting should be 
encouraged and rewarded. Creating inventories of serious medical events 
should not fall by default to investigative reporters. The Hartford 
Courant series shocked us all by describing the magnitude of restraint-
related death over a decade long period. These deaths occurred in a 
multitude of facilities being overseen by a number of different 
bodies--the states, through Medicaid or licensure programs; HCFA for 
all Medicare facilities; local government programs; the Joint 
Commission, and others. Yet none of us had an accurate compilation of 
all the restraint-related deaths that occurred under our respective 
auspices.
    Seventeen states have instituted mandatory reporting programs for 
serious events, but even health officials in Massachusetts--one of the 
states with the strongest reporting laws in this country--have 
acknowledged that they rely on the press for most of their information. 
This is an unacceptable way to get information about the least 
tolerable outcomes in our health care system. As noted, the Joint 
Commission's sentinel event reporting system is voluntary rather than 
mandatory, and restraint-related deaths are the fifth most commonly 
reported type of sentinel event. With over 400 sentinel event cases now 
in our database, we are proud of the willingness of so many health care 
organizations to report and act upon their serious events. Yet 
regrettably, even our program did not have a record of all of the 
deaths detailed in the Hartford Courant series that occurred in 
accredited organizations since 1995.
    If we cannot fully rely upon the completeness of reporting systems 
where they do exist, how do we improve upon the reporting and 
resolution of these tragic events which have now become a significant 
public policy concern in health care? The Joint Commission's Board of 
Commissioners has taken the position that the most effective way to 
address this need is to mandate the reporting of restraints-related 
deaths as part of an oversight framework that also facilitates--through 
protection from disclosure--the collection and review of ``root cause'' 
analysis information, from the responsible health care provider 
organizations, by accountable oversight bodies. These conditions are a 
sine que non for gaining a true understanding of underlying causes and 
developing appropriate preventive measures for the future.
                    root cause analysis information
    Requiring the conduct of substantive, in-depth analyses for each 
sentinel event--root cause analyses--is the next critical step to 
reduce the incidence of restraint-related deaths. This step introduces 
the critical goal of risk reduction--that is, reducing the likelihood 
that a similar death will occur for similar reasons in the same 
institution. Without this key step, reporting becomes the end game, and 
there is little evidence that mandatory or voluntary reporting of 
health care sentinel events, by itself, has led to improved patient 
safety or quality of care. The opportunity for improvements can only be 
created by a thorough, careful analysis of what went wrong. As noted, 
Joint Commission accredited organizations are required to perform a 
root cause analysis after the occurrence of each sentinel event.
    ``Root cause analysis'' is a concept borrowed from the field of 
engineering. It involves a systematic evaluation of what processes 
failed and led to an unexpected outcome. In a given case, a root cause 
analysis would elucidate all factors contributing to a restraint-
related death. It helps identify any system changes--such as review of 
staff competencies or training--that must take place to remedy any 
system failures that led to one of these tragedies. Coupling mandatory 
reporting with a requirement to learn and act would create powerful 
leverage toward reducing or eliminating restraints-related deaths. And 
for the vast majority of health care organizations which want to do the 
right thing, this approach would provide tangible guidance toward 
making changes in their organizational processes to prevent future 
occurrences of restraint-related deaths.
    Therefore, we support federal legislation that will recognize root 
cause analyses as an essential risk reduction activity which must be 
sufficiently protected from public disclosure to permit a completely 
honest, `no-hold-barred' approach to internal, self-evaluation. These 
analyses, once put on paper, become highly sensitive documents, and 
their creation and sharing with monitoring agencies will be resisted 
unless they are afforded a peer review-like protection, similar to what 
states now have in place for hospital internal quality review. We 
cannot emphasize strongly enough that any federal legislation aimed at 
increasing reporting of restraint incidents must include provisions to 
protect these specific documents. Otherwise, root cause analyses will 
not be adequately done--or done at all--and we will not make the 
essential progress toward preventing human tragedies.
                        performance measurement
    Restraints oversight also lends itself to preventive monitoring as 
a part of the emerging new quality measurement initiatives. The Joint 
Commission has also been a leader in this area, and is proud of its 
ORYX initiative that requires accredited organizations to submit 
quarterly performance data as part of a new continuous monitoring and 
evaluation process. We believe that ORYX holds significant promise for 
assisting organizations in monitoring and if appropriate altering their 
restraint use. There are currently 26 performance measures related to 
the use of restraints or seclusion that are now available for use by 
hospitals under ORYX. Six of these measures have been selected for 
quarterly reporting to the Joint Commission by individual accredited 
hospitals. They range in nature from measuring the prevalence of daily 
restraint use to reporting the actual percentage of restraint hours. 
Accredited nursing homes are also using some of the ORYX restraint-
related measures for long term care. We have already received some 
feedback from accredited organizations that the use of ORYX measures 
has helped them improve their restraint use.
                         public accountability
    Public accountability through public reporting of restraint-related 
deaths provides a final strong lever to the reduction of future 
occurrences. The occurrence of a restraint-related death should not be 
kept either from the public or from those with quality oversight 
responsibility. These occurrences--in the most vulnerable of 
individuals--require immediate attention and, almost always 
intervention. Organizations can underscore their own commitment to 
change by publicizing the interventions taken following a restraint-
related death.
    The public should also expect that the oversight bodies responsible 
for monitoring restraint-related deaths will, through their own 
mechanisms, use their measurement information to identify and disclose 
``poor performers'' to the public. Bad things happen, even in health 
care organizations otherwise providing good health care. However, a 
pattern of poor performance or a documented resistance to resolving 
quality or safety problems that place patients at risk for further 
serious occurrences should not be kept from the public. The Joint 
Commission has taken an aggressive approach to public disclosure for 
some time, and makes performance reports on individual accredited 
organizations available to the public at no charge.
                             best practices
    There is another type of information-sharing that must be an 
essential part of any strategy to eliminate restraint-related events. 
When root cause analysis information is shared with oversight bodies, a 
powerful source of information on appropriate, and even best, practices 
is continually being created and expanded. The Joint Commission is 
already credited with saved lives by alerting health care organizations 
about dangerous practices that have come to light under our sentinel 
event program, and suggesting ways to prevent future sentinel events. A 
case in point is our experience in guiding hospitals in the appropriate 
storage of potassium chloride. After identifying a pattern of deaths 
across the country resulting from the inadvertent administration of 
concentrated potassium chloride as a result of packaging and labeling 
confusion, we alerted all accredited facilities to limit access to this 
potentially lethal solution. We also have issued a sentinel event alert 
on the issue of restraints, advising providers about effective 
alternatives to the use of physical restraints and the importance of 
seeking less restrictive measures to achieve treatment and safety 
goals.
                      joint commission commitment
    This testimony began with a statement about the Joint Commission's 
commitment to reducing the number of restraint-related deaths in this 
country. That commitment is backed by a long-standing and continuing 
role in setting standards for patient rights and for the use and 
monitoring of restraints, and more recently, by the Joint Commission's 
leadership role in facilitating the identification of sentinel events, 
working with organizations to reduce the risk of future occurrences, 
and sharing ``lessons learned'' with all accredited organizations. But 
the Joint Commission does not intend to end its commitment there.
    Early this year, our Board of Commissioners appointed a new high-
level Restraint Use Task Force which will conduct a thorough re-
evaluation of the Joint Commission's current restraints standards, on-
site evaluation process, and other means for accessing information 
about restraints use. That Task Force is expected to make its final 
recommendations to the Board of Commissioners by the end of this year.
    The Task Force launched its efforts last month by initiating a 
series of public hearings across the country. These hearings are 
designed to elicit input, both oral and written, from the public and 
other interested parties on their perspectives on the current oversight 
process and what can be done to make it more searching and meaningful. 
We are also seeking the input from the health professional communities, 
both separately and at these hearings, because we believe that more 
than just the accreditation process must change--there must be a 
significant change in what is considered acceptable practices and 
behavior by the entire community involved in providing psychiatric and 
psychological care. The first two hearings--in San Francisco and 
Atlanta--were extremely well attended and rich in the input provided. 
Interest in the third hearing, which is taking place in Alexandria 
today, is so great that we have had to divide it into two separate 
sessions. We should take great heart in the evident broad commitment of 
all of the parties at interest to close down one of the most sordid 
chapters on health care in this century.
                               conclusion
    The reduction of restraint-related deaths and other sentinel events 
is one of the most important issues facing us today. Again, we applaud 
the Subcommittee's leadership on the issue. We support and welcome the 
opportunity to bring together the strength of public and private 
sectors to address these issues, and we look forward to working with 
you.
STATEMENT OF THOMAS HARMON, EXECUTIVE SECRETARY, 
            MEDICAL REVIEW BOARD, NEW YORK STATE 
            COMMISSION ON QUALITY CARE
    Senator Specter. We turn now to Mr. Thomas Harmon, 
Executive Director of the Medical Review Board of the New York 
State Commission on Quality Care.
    Thank you very much for joining us, Mr. Harmon. We note 
your 20 years' work on supervising investigations of over 4,000 
cases of abuse and deaths in mental health facilities. The 
floor is yours.
    Mr. Harmon. Chairman Specter, Senator Harkin and others, 
thank you for this opportunity to speak on the matter of 
independent investigations into deaths in mental hygiene 
facilities, particularly deaths in which restraint or seclusion 
was a factor.
    As noted, I work for the New York State Commission on 
Quality of Care, which is New York State's protection and 
advocacy agency. The commission has often been cited as a model 
for independent investigations. Most recently, the Hartford 
Courant series on deadly restraint lauded New York State as 
being one of the few states requiring the reporting of all 
mental hygiene consumer deaths to an independent body for 
review and investigation.
    I want to share with you my perspectives on what makes New 
York State unique and the value of the independent death 
investigations we conduct. The commission was created in 1977 
by state law in New York to oversee programs serving the 
mentally disabled. Among other things, the law in New York 
required that all deaths and allegations of abuse be reported 
to our commission so that we can review and conduct 
investigations where necessary.
    It was subsequent to that that we became New York State's 
federally designated protection and advocacy agency. However, 
in certain respects, New York State law confers upon the 
commission greater authority than most P&As are afforded under 
the federal laws.
    For example, whereas New York State law requires that all 
deaths and allegations of abuse be reported to the commission, 
and we can then commence an investigation, most other P&A 
agencies do to receive that notification and can only commence 
an investigation when they receive a complaint or they have 
suspicion of abuse.
    Let me cite two values of independent death investigations. 
The first is impartiality. All facilities, either by law, 
regulation or the mandates of their accrediting bodies, are 
required to conduct internal investigations of untoward events 
for the purpose of protecting their patients and consumers from 
future harm. And a lot of facilities endeavor to do that.
    However, there are a number of factors which erode 
facilities' ability to do that faithfully, or erode the 
public's confidence in their ability to do it. Facilities in 
their investigative zeal may be quick to find and remedy the 
obvious smoking gun, like an employee error, for example, but 
not take the time to look at the underlying issues which set 
the employee up for that error. In facilities where serious 
events happen, very infrequently the facility may lack the 
requisite skills to investigate the matter as much as they 
desperately want to get to the bottom of what went on.
    And sometimes it may be perceived that the facility's 
investigation is self-serving, and confidence in its results is 
reduced. The primary value brought by independent 
investigations is their impartiality. We have no self-interest 
to serve.
    And as often as the commission has found problems in cases 
we have investigated and deaths that we have investigated, we 
found an equal number of cases, if not greater, where a death, 
as unexpected as it was, did not suggest problems in care. And 
we were able at that point in time to give the family and the 
facility alike some peace of mind in an otherwise discomforting 
time.
    Finally, let me just say another value. And that is, 
independent investigations can go and bring lessons to beyond 
the walls of the facility where you are investigating. I have 
in my written testimony an example of where we investigated a 
death on Long Island, where towels were used to protect staff 
from biting and spitting. And the facility terminated that 
practice after we brought the hazards of that practice to its 
attention.
    But when we learned that it was happening at other 
facilities in the state, we brought it to our state office of 
mental health, which in February issued an alert to all 
hospitals across the state to terminate the practice.
    In closing, I wanted to bring to you the commission's 
experience in conducting death investigations with the hope 
that it can be a model for other states, as you deal with this 
problem of restraint and seclusion deaths.
    Thank you.
    Senator Specter. Thank you very much, Mr. Harmon.
    [The statement follows:]
                  Prepared Statement of Thomas Harmon
    Chairman Specter, Senator Harkin and other Senators, thank you for 
this opportunity to provide testimony on the matter of independent 
investigations into deaths of individuals who are residents or patients 
of mental hygiene facilities, particularly deaths in which restraint or 
seclusion was a factor.
    My name is Tom Harmon and I work for the New York State Commission 
on Quality of Care, New York State's designated agency within the 
federal Protection and Advocacy system. For over 20 years, the 
Commission on Quality of Care has conducted investigations into deaths, 
and other matters, within mental hygiene facilities. The Commission has 
often been cited as a model for independent investigations and most 
recently, in the Hartford Courant's October 1998 series Deadly 
Restraint, New York State was lauded as one of the few states requiring 
the reporting of all mental hygiene consumers' deaths to an independent 
agency for review and investigation. Having spent the majority of my 
twenty years with the Commission coordinating its death investigation 
activities, I want to share with you my perspectives on what makes New 
York State unique, the value of independent death investigations, and 
some of the key ingredients for a successful death investigation 
process. To supplement my testimony, I am also submitting written 
materials which amplify or further illustrate points I raise including 
the Commission's enabling legislation (Article 45 Mental Hygiene Law) 
and several reports published by the Commission which I believe you 
will find helpful.
                      new york's unique situation
    Among the nation's P&A's, New York State's is unique. In the mid-
1970's, New York State recognized the need for independent oversight of 
facilities serving its most vulnerable citizens--individuals with 
mental disabilities. And, with the enactment of Chapter 655 of the Laws 
of 1977, the Commission on Quality of Care was created. Among other 
things, the law required that all deaths and allegations of abuse 
occurring in mental hygiene facilities be reported to the Commission 
for its independent review and investigation. In subsequent years, the 
Commission was designated as New York State's P&A agency; however, in 
certain respects, New York State law confers upon the Commission 
greater authority than most P&A agencies are afforded under federal 
law.
    For example, whereas NYS law requires that all deaths be reported 
to the Commission in a manner and form prescribed by the Commission and 
allows the Commission to commence an investigation where deemed 
indicated, other P&A's do not receive such notification and can only 
commence an investigation when they receive a complaint or have 
reasonable cause to suspect abuse.
             the value of independent death investigations
    Time constraints prohibit me from extolling all the values of 
independent death investigations. But allow me to propose two chief 
ones. The first, in my opinion, is impartiality. All facilities, by 
mandates of law, regulation or accrediting bodies, are expected to 
engage in a process of risk management, critical self- examination or 
quality assurance, around untoward events in order to protect the 
individuals they serve from future harm. A great many facilities 
endeavor to fulfill this obligation faithfully. However, there are a 
number of factors which may erode even the best facilities' abilities 
to exercise this duty or may erode the public's confidence that it has 
been fulfilled, particularly with regard to the most serious of 
untoward events: an unexpected, sudden death or deaths related to 
restraint. Facilities in their investigatory zeal may be quick to find 
and remedy the obvious smoking gun, an employee who erred, for example, 
without taking the time to examine underlying systemic issues such as 
staff training, supervisory policies, and staffing allocations. In 
facilities where serious events happen infrequently, the facility may 
lack the requisite skills to conduct an effective investigation, no 
matter how desperately it wants to.
    The primary value brought by independent investigations into the 
most serious of untoward events is their impartiality; independent 
investigators have no self-interest to serve by their investigations. 
As often as the Commission has found that certain deaths suggested 
problems in care, we have found, in an equal or greater number of 
cases, that the death, perhaps as unexpected as it was, did not suggest 
problems; the Commission's impartial investigations found care was 
appropriate, thereby offering families and facilities alike some peace 
of mind in an otherwise discomforting time.
    A second value of independent investigations, particularly those 
done by a single agency, is the opportunity for systemic reform or 
system-wide protection and prevention. During a recent investigation 
into a death on Long Island, the Commission found that facility staff 
would routinely hold a towel snugly over the mouths of patients they 
restrained. When advised by the Commission of the inherently dangerous 
nature of this intervention, the facility terminated the practice. 
However, the Commission learned that this practice was employed at 
other hospitals and brought the matter to the attention of our State 
Office of Mental Health which recently issued a statewide alert banning 
the technique. Additionally, the Commission put OMH in contact with the 
New York State Office of Mental Retardation and Developmental 
Disabilities to further explore a safer device employed by an OMRDD 
facility for preventing spitting or biting hazards during restraints.
    The above example illustrates the value brought by an independent 
investigating body working collaboratively with regulatory agencies to 
bring about systemic reform, each propelling the other into finer and 
finer consumer service and protection practices. Other examples of 
these collaborative efforts include:
  --In the early-1990's, our Office of Mental Health conducted an 
        extensive review of restraint and seclusion practices in New 
        York State and issued new policies on this subject, resulting 
        in a reduction of the utilization of these interventions;
  --Our Office of Mental Retardation and Developmental Disabilities has 
        developed a rigorous protocol for approving and routinely 
        monitoring the use of certain restrictive interventions; and
  --Both regulatory agencies have developed training programs on the 
        use of restraint, seclusion and physical interventions which 
        emphasize alternatives to such interventions and tools to de-
        escalate situations to thereby reduce the need for their use.
    While not all cases may suggest the need for system-wide reforms, 
many cases present opportunities to revisit staff training programs or 
reexamine and refine policies or procedures at individual facilities 
across the state. In this vein, the Commission has had much success 
with a series of case studies it produces for all facilities in New 
York State entitled, Could This Happen In Your Program? The series 
presents actual cases investigated by the Commission and invites 
readers to reflect on their own agencies' operations and whether 
lessons learned elsewhere have applicability in their programs. These 
training materials provide managers and direct care staff an 
opportunity to examine their own operations to prevent similar 
tragedies from occurring in their facility.
                            key ingredients
    Realizing the benefits of independent investigations requires that 
the investigating body has all the needed tools. I'd like to briefly 
list some of the tools which have enabled the Commission to establish a 
noteworthy investigation process in New York State.
    Understanding why a person died and whether the death suggests ways 
in which care can be improved is like putting together a puzzle. First, 
you need to have all the pieces; including not just information from 
the mental hygiene facility, but records and other information from, 
among others, coroners, medical examiners, general hospitals where the 
individual may have died or been treated, law enforcement personnel and 
Emergency Medical Services crews. Accessing this information in a 
timely fashion is important and, in New York State, the Commission's 
right of access is spelled out in State statute.
    Once all the pieces have been amassed, one also needs individuals 
sufficiently expert in putting the pieces together and interpreting the 
picture which emerges. The Commission has nurses on staff who review 
the medical cases we investigate. But sometimes situations arise which 
require more detailed clinical analysis. The legislation establishing 
the Commission also provided for a Medical Review Board consisting of 
volunteer physicians, appointed by the Governor, to assist the 
Commission on a volunteer basis on matters it investigates. The 
physicians have specialties in Forensic Pathology, Psychiatry, Surgery, 
Internal Medicine, and Pharmacology. Over the years their expertise has 
been of great value to the Commission, and the people we serve, in 
helping to assemble the pieces of the puzzles we are called on to solve 
and offer meaningful recommendations to protect the living.
    In closing, I believe the Commission's independent investigations 
into unusual deaths and incidents of abuse, in collaboration with the 
efforts of our State's Office of Mental Health and Office of Mental 
Retardation and Developmental Disabilities, have led to important 
improvements in the quality of care afforded individuals with 
disabilities and could serve as a model for other states in their 
efforts to protect and best serve their most vulnerable citizens.
    Once again, I wish to thank you for the opportunity to testify 
before you today.

    [Clerk's note.--The written materials referred to in Mr. 
Harmon's statement do not appear in the hearing record but are 
available for review in the subcommittee files.]
    Senator Specter. Mr. Rogers, would you bring those devices 
up so Senator Harkin and I can take a closer look at them?
    Mr. Rogers. It is a straightjacket.
    Senator Specter. Straightjacket? Bring that up. Let us take 
a look at that.
    Senator Harkin. I have never seen a straightjacket in my 
life.
    Senator Specter. Senator Harkin says he has never seen a 
straightjacket. How do you put this on?
    Mr. Rogers. Well, you put it on so usually your arms go 
back in the back. This one----
    Senator Specter. The arms in the back?
    Mr. Rogers. Yes; I have not practiced this one. This one, 
your arms would just be inside, and the whole thing would be 
strapped around you so you could not make any moves at all.
    Senator Harkin. Oh, I see.
    Senator Specter. Let us see how the others work. These are 
for hands and----
    Mr. Rogers. Right. These would restrain you by strapping 
your arms down to a gurney or to a chair, wherever they want.
    Senator Specter. Come around here and show us how this 
would be applied.
    Mr. Rogers. All the way over there?
    Senator Specter. Right here is fine.
    Mr. Rogers. Well, you take the individual, and you strap 
them, you work the strap through.
    Senator Harkin. What is all this stuff over here?
    Mr. Rogers. This is an interesting thing. This is a net 
they use.
    Senator Specter. Before you do that, show us how these 
work.
    Mr. Rogers. And then you pull them down, and they strap to 
a chair or to a bench or whatever. Unfortunately, sometimes 
they strap you to a gurney, and that is actually a very 
dangerous practice. Because if the person gets violent, throws 
themselves around, the gurney can flip over. And if they are 
not being observed, the gurney lands on top of them, they can 
literally break their neck.
    Mr. Rogers. This they use by really throwing it over a 
person. And they can strap them down.
    Mr. Harkin. You have got to be kidding me.
    Mr. Rogers. This is used to, again, put the arms through. 
And then you can--this can hold the person totally down on 
whatever you set them down on, a gurney or onto a bed. And the 
idea is to hold them. Unfortunately, what happens in a lot of 
cases is the person is really upset and disturbed, obviously. 
You put them in the restraints. They are sometimes put in way 
too tight. Their ability to breath, their ability to aspirate, 
is affected. And that is what causes a lot of the deaths.
    Senator Specter. OK. Thank you very much, Mr. Rogers.
    Senator Harkin. It is like some kind of a torture movie, 
you know, like movies you see in wartime when they torture 
people. That is what it looks like.
    Mr. Rogers. Well, when the movies want to make a dramatic 
situation, they use these restraints. And it is pretty dramatic 
what it does to a person.
    In my case, I came into the hospital for help, was not 
really that agitated. For some reason, the staff decided that I 
needed to be restrained. I can tell you, it took me a long time 
to go back to the hospital for help after having had that done.
    Senator Harkin. I can believe that.
    Mr. Rogers. Thank you, Senator.
    Senator Harkin. Well, thank you very much.
    Senator Specter. Dr. O'Leary.
    Dr. O'Leary. Yes, sir.
    Senator Specter. Beginning the questioning--and Senator 
Harkin and I will each take five-minute rounds and go to 
10:30--is it realistic to have a requirement that there not be 
any restraint except on a doctor's order? That is one of the 
suggestions made in the legislation which is pending. And that 
seems like a very good way to limit these kinds of restraints 
which are so brutal to issues of absolute necessity. There is 
an exception in emergency situations where then a doctor would 
be called in with as prompt as possible review of it. But is it 
realistic to impose that kind of requirement on the use of 
these restraints?
    Dr. O'Leary. I think that it is a realistic requirement 
and, more than that, a necessary requirement.
    Senator Specter. So you would endorse that.
    Dr. O'Leary. Yes; I really would. And I think the issue 
that actually is being begged is whether restraints should be 
used in any situations other than in an emergency situation. I 
think that is one of the issues that we all need to be looking 
at very seriously.
    Senator Specter. Well, that would be quite a remedy, to 
require a doctor to authorize it. And maybe there could even be 
some provision on an emergency basis to require a doctor to 
review it, if that could be set up. We would have to examine 
that.
    Mr. Harmon, you have in your resume stated that you have 
dealt with some 4,000 cases of abuse and deaths. How many of 
those are deaths?
    Mr. Harmon. Oh, in the past 10 years, working for a medical 
review board, I probably have looked at 2,000 to 3,000 deaths 
in New York State.
    Senator Specter. I join my colleagues in the compliment for 
the Hartford Courant. It is a phenomenal series. And it is in 
the great tradition of American investigative journalism to 
make a disclosure of this sort, which focuses congressional 
attention. Once we are acquainted with the problem, then we can 
move ahead to try to fashion an answer to it.
    The estimates are about 150 deaths a year. But given the 
statistics of what you have worked on in New York State alone, 
it seems to me that that kind of an estimate is very, very 
understated.
    Would you have--I see nods from Dr. Allen and Dr. Mohr. 
Would you have an estimate as to the number of deaths which 
result from excessive restraints in this country on an annual 
basis?
    Mr. Harmon. Not nationally. I can say in New York State 
last year, in 1998, we received at our commission approximately 
170 allegations of abuse or neglect involving restraints. And--
--
    Senator Specter. Did those result in deaths?
    Mr. Harmon. In four cases, there were deaths. So we had 
four deaths in 1998. In two of those cases, I think, I know, 
that upon investigation, we could find no problems in care. In 
the other two cases, there were problems.
    Senator Specter. And the speculation is there would be a 
great many more unreported.
    Mr. Harmon. No. I do not believe in New York State----
    Senator Specter. You think they do report them there.
    Mr. Harmon. By law, they have to. And we also require them 
to fill out forms that indicate whether or not restraint was 
used within a 24-hour period of----
    Senator Specter. Well, I suspect that notwithstanding tight 
reporting requirements, that a lot are unreported. People have 
a tendency not to report when the information might lead to 
liability on their part. I do not want to impugn your report as 
in New York State, but my experience would suggest that.
    Dr. Allen, listening to the case of your son, absolutely 
horrible, and we all sympathize with you. Having had 16-year-
old sons myself, I can understand and appreciate your anguish. 
As you have related the circumstance, there was more than 
carelessness.
    There was a degree of recklessness, which really crosses 
the homicide line. What you have stated goes to involuntary 
manslaughter. And perhaps recklessness in the extreme can 
constitute malice for murder in the second degree.
    You may not want to answer this question now, but I would 
like you to give some consideration, and the other panelists as 
well, as to whether legislation ought to have criminal 
sanctions attached to it, as well as licensing and reporting. I 
see a lot of nods in the audience. If you get a little tougher, 
you may find a little more deterrence. But the case you 
describe really shrieks out for a degree of recklessness, which 
is homicide.
    What do you think, Dr. Allen?
    Dr. Allen. Certainly I think there has to be a degree of 
accountability. And we can have national standards, and we can 
have better training. But I agree with you, sir, that perhaps 
there needs to be a deterrent.
    Senator Specter. Dr. Mohr, one final question. My red light 
is on. I am very much impressed with your comment that it is a 
psychiatric convention contrasted with a psychiatric necessity. 
On a broader educational picture, how do we tell the people of 
America, who are in this field, the workers, those who are 
there, what the appropriate standards are beyond doing what is 
conventional and so damaging? What can be done to educate us to 
what really is medically necessary?
    Dr. Mohr. I think there is two parts to your question. 
Number one, we do not really have a good research foundation. 
So we have no good programs to teach people. We have promising 
practices. And what I would recommend is to teach people what 
our promising promises are, people in the profession and in our 
schools, what our promising practices are, and then to continue 
to do research to see whether we can just simply do better.
    Senator Specter. Thank you very much, Dr. Mohr.
    Senator Harkin.
    Senator Harkin. Again, I want to thank all of you for being 
here and for your excellent testimony. I especially want to 
commend for the record, Mr. Rogers, your quotes from, if I can 
find it here, your home state, Mr. Chairman, a Mr. Curie.
    Mr. Rogers. Yes; from Pennsylvania, Deputy Secretary Curie.
    Senator Harkin. I do not know his position. What is his 
position?
    Mr. Rogers. He is the Deputy Secretary for Mental Health in 
the Department of Public Welfare.
    Senator Harkin. You said that Pennsylvania's experience 
proves that the use of seclusion and restraint can be 
eliminated or greatly reduced when there is a treatment 
environment that focuses on the strengths of the individuals 
being served, that protect patients' dignity, comfort and 
privacy, et cetera. You said the options available today make 
the elimination of seclusion and restraint an extremely 
realistic goal.
    Anyway, I----
    Mr. Rogers. Yes; Secretary Curie, who is the Deputy 
Secretary, Department of Public Welfare, has made it almost a 
personal campaign of his to really review what the state is 
doing when it uses restraints in their state hospitals. And in 
one case, in Haverford State Hospital, which is just outside of 
Philadelphia, they eliminated, six months prior to the closing 
of the hospital, they eliminated all use of restraints.
    It is really possible, if you really look at how people are 
using it, what the practices are, why they are using it, and to 
put some real standards in and to have leadership, you know, 
being held accountable to move to the point where you have tons 
of incidences of restraints to nearly zero incidents.
    Senator Harkin. Dr. Allen, again, you talked about the 
importance of staff training, certification, that type of 
thing. And it has pointed out that only three states have 
licensing and training standards. Just a little bit more 
elaboration for me. What do you think ought to be included in 
something like that? And could we address that at the national 
level?
    Dr. Allen. Truly, I do not know if training can be 
addressed at the national level. I think that needs to be 
addressed at the individual state levels. But I think we need 
to look at the need for restraints, or the use of restraint, as 
being viewed as a system failure and not a patient failure. And 
staffers have to be trained, and they have to understand. I 
mean, I think they have to be trained on deescalation 
techniques other than manhandling and wrestling a child or an 
individual down to the floor.
    But I think staff also must understand not just what to do, 
but why they are doing it and how that can be effective. And I 
think that staffers have to be taught that. And they must see 
their job as facilitating the patients regaining their own 
self-control while maintaining a sense of dignity, and not 
punishing them for being out of control.
    Senator Harkin. Right. That is what Mr. Curie was saying. 
He is talking about deescalation techniques and that type of 
thing, which I am not all that familiar with.
    Mr. Rogers. What we find is that if you have an institution 
where treatment is the primary thing, not just custodial care, 
where people are really evaluating what the individual needs, 
you do not end up using restraints. Restraint happens because, 
in a lot of situations, all they are doing is providing sort of 
a custodial care. It is like a jail.
    So people get into trouble. Staff gets into trouble. And 
people get hurt. And what we need to do is create a different 
standard and a different method of treatment for people.
    And restraints, if we eliminate restraints or eliminate 
that option, it actually has the impact of people having to 
find other options to deal with people. Deescalation is a 
technique of, when I am confronting somebody and they are 
coming back at me, if I come back at them harder, then we get 
into a fight. If I find ways to step back, talk slower, 
quieter, I can usually bring the situation down.
    Senator Harkin. I just have to believe, just looking at 
these macabre devices that you showed us here, that just coming 
at someone with something like that is enough to instill fright 
and apprehension and can lead to all kinds of reactions in an 
individual. I mean, how would you feel, how would anyone in 
this audience feel, if someone came at you with one of those 
and was going to put you in one of those? I mean, man, you have 
to have some kind of drastic emotional reaction to that.
    Mr. Rogers. Especially since a lot of people that are 
psychiatric patients have histories of abuse in their 
childhood.
    Senator Harkin. Sure.
    Mr. Rogers. And what happens is that just triggers in 
them--you are talking about people that are veterans, that have 
faced abusive situations and have trauma, post-traumatic 
syndrome. They are going to react. You come at them like that, 
they are going to fight back. And unfortunately, people get 
hurt.
    Senator Harkin. One thing I would like to clear up, though, 
I think, Dr. Mohr, you kind of touched on that, is that there 
is a general perception that restraints and these kinds of 
devices are used only for people with mental disabilities. But 
you have pointed out that they are used often with people with 
other types of disabilities. Would you elaborate on that a 
little bit, please?
    Dr. Mohr. What I can elaborate on is to reiterate what I 
have said, that restraints are a convention. They are a 
psychiatric convention, and they are a way of maintaining 
patient and milieu control. They are not by any stretch of the 
imagination in my mind therapeutic. They are used in 
psychiatric facilities, and they are used with the 
developmentally disabled and frequently used inappropriately.
    Senator Harkin. I see my time is up. Just one last thing. 
We are looking at what we can do here legislatively. And, Dr. 
O'Leary, what will the Joint Committee on Accreditation of 
Hospitals--now you are going to start looking at this and what 
you could start doing, right?
    Dr. O'Leary. Yes; now we think there are real opportunities 
for improvement here. I think the Pennsylvania model is an 
excellent example of the things that can be done to really 
reduce restraint use. Pennsylvania has actually been using the 
Joint Commission standards and some of the new measurement 
techniques to focus attention on restraint use.
    So we are going to do, I think, some major things to 
improve the oversight process.
    Senator Harkin. Would you keep us advised of that?
    Dr. O'Leary. We certainly will do that.
    Senator Harkin. Thank you.
    Senator Specter. Thank you very much, Senator Harkin.
    Thank you very much, all. Again, I commend the Courant for 
the investigative reporting which has focused on the issue.
    And we are going to be taking a very close look at the 
requirement that a doctor would have to authorize the 
restraints and some checks and balances as to the types of 
restraints and the duration, and perhaps even a closer look at 
whether there ought to be some criminal sanctions applied in 
the egregious cases which really move from negligence to 
recklessness, which could be a manslaughter charge or even 
more. But I think this has been a very informative session.
    And I thank my colleague, Senator Harkin, for his work and 
Senators Dodd and Lieberman for their leadership on this 
important field.

                         CONCLUSION OF HEARING

    Senator Specter. Thank you all very much for being here, 
that concludes our hearing. The subcommittee will stand in 
recess subject to the call of the Chair.
    [Whereupon, at 10:35 a.m., Tuesday, April 13, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]



         MATERIAL SUBMITTED SUBSEQUENT TO CONCLUSION OF HEARING

    [Clerk's note.--The following material was not presented at 
the hearing, but was submitted to the subcommittee for 
inclusion in the record subsequent to the hearing:]
                       NONDEPARTMENTAL WITNESSES
       Prepared Statement of the American Psychiatric Association
    This statement is submitted for the record by the American 
Psychiatric Association. The APA is the national medical specialty 
association representing more than 41,000 psychiatric physicians 
nationwide. Our members work and practice in all settings, including 
public and private hospitals, private practice, group practice, 
research programs, and academia.
    First and foremost, APA commends the Subcommittee for holding this 
hearing on the use of seclusion and restraint. We deeply regret, 
however, that we were in effect ``uninvited'' from public testimony and 
were thus not allowed to testify in person. While we understand the 
severe time constraints that limited the hearing time to one hour, we 
must note that the public hearing on this volatile, complex, and highly 
emotional issue was clearly unbalanced, particularly given the fact 
that not a single psychiatrist--the physicians on the front line of 
treatment--was allowed to testify.
    It is absolutely vital that public hearings provide an opportunity 
for clinicians, Members of Congress, patient advocates, and patients/
consumers to sit down together and discuss vital patient care issues. 
It is our hope that a dispassionate examination of restraint (and of 
seclusion), including deaths and serious injury caused by restraint (or 
seclusion), will further APA's overarching objective of ensuring the 
provision of all medically necessary treatment of psychiatric patients 
in an environment that is safe and humane for patients and for staff.
congress should fix the problem with restraint use when it understands 
                               the cause
    The spate of recent news stories (e.g., Hartford Courant, Fox 
Files) has focused public attention on the care of psychiatric patients 
in the inpatient or residential setting. As a matter of general 
principle, APA, of course, believes that seclusion or restraint should 
not cause patient deaths.
    The stories in the press are lamentable, and we reiterate that 
seclusion or restraint should not cause deaths. Efforts to increase the 
safety of seclusion and restraint and to decrease deaths caused by 
these interventions must be based on a clear understanding of the 
causes of deaths and serious injury. Precipitous action (for example, 
regulatory changes) prior to a full examination of the factors leading 
to safety problems may have unintended negative consequences without 
any improvement in safety.
    For example, it is not clear at this time:
  --How many psychiatric patients were in inpatient or residential 
        treatment settings?
  --How many of those patients were secluded or restrained?
  --For how long were patients secluded or restrained? Were the 
        facilities JCAHO accredited? State licensed?
  --What post-event root cause analyses took place?
  --What were the results of those analyses?
  --What is the incidence of patient-to-patient assaults during this 
        period? Patient-to-staff assaults?
    These are but a few of the questions that we believe must be 
answered in order to determine what shortcomings now exist in the 
federal regulatory and JCAHO processes as well as in current clinical 
standards of care.
 problems with restraint and seclusion must be seen in the context of 
  the patient population and the facilities in which they are treated
    It is vital to note that the incidence of use of seclusion and 
restraint, and particularly deaths or serious injuries caused by such 
use, cannot be viewed in the abstract but must be seen in the clinical 
context in which treatment occurs.
    Psychiatric facilities today face unprecedented challenges. Whether 
by managed care or by more traditional health insurance, there is great 
pressure not to admit patients to the more expensive inpatient setting 
unless there is simply no alternative. That means that the patients we 
see in these settings are more seriously ill than ever before. Many--
perhaps most--are in the acute stages of their illness, and their 
underlying illnesses are more likely to be severe.
    At the same time, psychiatric facilities and the physicians and 
other health professionals who work in them are under greater budgetary 
pressure than ever. For example, the Balanced Budget Act of 1997 
reduced payments to so-called ``TEFRA'' hospitals (i.e., those 
hospitals--including psychiatric hospitals--that are exempt from the 
Prospective Payment System) by $5 billion.
    So disadvantageous was this reduction that representatives of the 
psychiatric hospital industry have decided to pursue PPS coverage. 
Likewise, payments to psychiatrists and other health staff are 
constantly being squeezed by insurers, whether Medicare or private.
    Bluntly, psychiatrists and other health professionals and the 
facilities in which we work are being asked to do more than ever for 
patients who are more acutely ill than ever before with less resources. 
It is particularly disturbing to APA that discussion of resource 
commitment has, thus far, been entirely absent from the public 
discourse.
  there is more agreement than disagreement between psychiatrists and 
  patient advocates on the appropriate use of seclusion and restraint
    APA has a long-standing record of involvement with the development 
of general guidelines and principles for the use of seclusion and 
restraint. For example, the Report of the Task Force on Seclusion and 
Restraint (1984, amended 1992) provides a very thorough overview of the 
practices in seclusion and restraint as they are used in the treatment 
and management of violent and disruptive behaviors in the treatment 
setting. The report also reviewed alternatives to the use of physical 
controls, and it includes a very helpful discussion of indications, 
contraindications, and emergency use of seclusion and restraint. We are 
attaching a copy of the Task Force Report as a submission for the 
record.
    In response to APA's concern about the patient care implications of 
the Courant series, APA Medical Director Steven M. Mirin, M.D. directed 
that APA convene a panel of experts first to develop a statement of 
general principles on seclusion and restraint and, second, to develop 
clinical best practices standards.
    The Joint Statement of General Principles on Seclusion and 
Restraint by the American Psychiatric Association and the National 
Association of Psychiatric Health Systems is also attached to this 
written testimony. We must note for the record that the Joint Statement 
is to be viewed at the present time as a ``work in progress,'' having 
not yet been formally reviewed and approved by the governing bodies of 
our two associations.
    We believe a careful review of these documents shows that there is 
more agreement than disagreement on general principles governing the 
use of seclusion and restraint between physicians and most patient 
advocates.
    Here is a brief summary of the key points of our General 
Principles.
  --Seclusion and restraint are interventions that carry a degree of 
        risk. They may be used where, in the clinical judgement of 
        medical staff, less restrictive interventions are inadequate.
  --Seclusion and restraint may be indicated (a) to prevent harm to the 
        patient or other persons including other patients, family 
        members, and staff, and (b) to ensure a safe treatment 
        environment.
  --A physician should write seclusion and restraint orders.
  --The physician should examine the patient and ensure appropriate 
        monitoring and care throughout the episode.
  --Staff should be thoroughly trained and have demonstrated competence 
        in the application of safe and effective techniques for 
        implementing seclusion and restraint.
  --Patients should be removed from seclusion or restraint when, in the 
        physician's judgement, the patient no longer poses a threat to 
        himself/herself, other patients, family members, or staff.
  --Use of seclusion and restraint should be minimized to the extent 
        that is consistent with safe and effective psychiatric care and 
        the specific clinical needs of the patient. Likewise, staff 
        should be trained in the use of alternative interventions that 
        may reduce the need for seclusion and restraint. Facilities 
        should engage in a continuous quality improvement program that 
        seeks to minimize the use of seclusion and restraint consistent 
        with good standards of clinical practice and the needs of 
        individual patients.
  --Death and serious injury from interventions involving seclusion and 
        restraint must be reviewed internally. In addition to internal 
        review, external review by, or subject to, an accrediting 
        organization may also be required, with appropriate legal and 
        confidentiality protections.
 the current jcaho process is educative and offers a useful model for 
                                congress
    Let us now turn to a brief review of the JCAHO process. As you 
know, the standards for seclusion and restraint were significantly 
modified approximately 24 months ago. These modifications are 
consistent with and support the key points in our statement of general 
principles. Before additional changes are made, it is our judgement 
that the effect of the new standards on practice should be assessed.
    The sentinel event policy and procedures is discussed in detail in 
the JCAHO ``Special Report on Sentinel Events'' published in the 
Perspectives of November/December, 1998. Under standards set by the 
JCAHO and effective in January, 1999, and laid out in the Accreditation 
Manual, a ``sentinel event'' is ``an unexpected occurrence involving 
death or serious physical or psychological injury, or the risk 
thereof.'' Serious injury is defined to specifically include ``loss of 
limb or function.'' It is useful to think of these as catastrophic 
events involving death or severe permanent injury.
    Sentinel events are divided into two basic categories: reviewable 
and non-reviewable. Reviewable events include those that have 
``resulted in death or major permanent loss of function, not related to 
the natural course of the patient's illness or underlying condition,'' 
and a series of specifically iterated events including suicide, rape, 
and surgery on the wrong patient or body part. ``Major permanent loss 
of function'' is defined as ``sensory, motor, physiologic, or 
intellectual impairment . . . requiring continued treatment or life-
style change.''
    JCAHO-accredited facilities are encouraged to report reviewable 
sentinel events voluntarily as they occur. Facilities are required to 
prepare a root cause analysis and action plan and to submit both to 
JCAHO. Sentinel events reported to JCAHO are included in the Joint 
Commission's Sentinel Event Database. Information covered includes 
sentinel event data, root cause data, and risk reduction data; non-
identifiable aggregate data are released.
    The core, then, of the current JCAHO process is, in the words of 
the Commission, ``to increase the general knowledge about sentinel 
events, their causes, and strategies for prevention.'' As a practical 
matter, this aspect of JCAHO activities is educative. That is a 
critical component of efforts to minimize the general use of seclusion 
and restraint and to eliminate deaths caused by seclusion and 
restraint.
    As you know, hospital staff will typically hold after-the-fact 
debriefings when patients are restrained or secluded, and certainly 
when death is caused by seclusion or restraint.
    Any change in these standards must be carefully weighed against the 
impact it will have on reporting of sentinel events and on its 
consequences for the best possible patient care.
    We acknowledge and are sensitive to these concerns, and we also 
believe there may be complex issues related to liability and discovery 
that the Congress and the Joint Commission must also consider if they 
decide to change the standards for reporting of sentinel events 
involving seclusion and restraint.
                 the jcaho process can be strengthened
    Nevertheless, APA supports the strengthening of current sentinel 
event policy to require the reporting of deaths caused by seclusion or 
restraint, as well as application of the strengthened policy to serious 
injuries that meet the JCAHO definitions.
    We stress here that we speak strictly for psychiatry, and not for 
the purposes of our Joint Statement of General Principles. It follows 
that any shift in policy must also carefully consider the information 
that may be required to be reported, especially in light of the need 
for confidentiality of data included in the reports. Even greater care 
must also be taken to preserve the confidentiality of records if 
Congress considers directing the JCAHO to amend its disclosure policy 
to report information to other bodies.
 surveyor training and education are critical components of effective 
                               oversight
    Another area of potentially useful discussion is surveyor training. 
We believe that the new survey process that requires the surveyor to 
interview patients in restraint or seclusion, as well as the nursing 
and other staff responsible for their day-to-day care, is a marked 
improvement. This ``hands on'' surveying process gives a better picture 
of actual restraint issues than interviewing senior medical staff or 
simply reviewing records.
    We also emphasize the critical need for the surveyors to determine 
a facility's compliance with the standards requiring staff training. 
The literature clearly indicates a correlation between staff training 
and a reduction in the use of seclusion and restraint.
   current federal legislation to restrict the use of seclusion and 
                   restraint is fraught with problems
    As you know, in addition to current JCAHO activities, legislation 
has been introduced in the House and Senate to require reporting and 
review of deaths and injuries of psychiatric patients.
    It is not our purpose to review the bills in this testimony, 
although we would be pleased to provide a detailed analysis for your 
review. We note, however, that there are serious technical problems 
with all of the bills, including the following:
  --Inappropriate restrictions on the use of seclusion and restraint 
        (i.e., for the safety of patients only, not for staff or 
        others; no consideration of the treatment environment);
  --Potentially problematic external (beyond JCAHO) data disclosure 
        with inadequate confidentiality protections;
  --Duplicative and adversarial involvement of the protection and 
        advocacy systems in reviewing and investigating deaths and 
        serious injuries of psychiatric patients;
  --Imprecise definitions; and,
  --Failure to provide resources to meet the requirements established 
        by the bills.
    As clinicians, we believe that the ultimate responsibility for the 
decision to seclude or restrain the individual psychiatric patient must 
rest with the treating psychiatrist. Well-intentioned law and 
regulation are at best a crude instrument that cannot be a substitute 
for individual clinical expertise and judgement in which the treating 
physician and the rest of the staff work as a team to make informed 
decisions about optimum treatment for the individual patients in their 
care.
    The fact remains that we are treating sicker patients in shorter 
time and in more acute stages of their illness. This population is one 
in which--regardless of what one may feel about restraints or 
seclusion--we simply cannot allow our distaste for the intervention to 
take the place of clinical judgement and the safety of patients, staff, 
and others.
apa strongly supports research on the use of seclusion and restraint as 
   an integral part of ensuring the safe and effective use of these 
                             interventions
    We must be careful not to vest unexamined anecdotal information 
about restraint elimination with the status of ``best practice'' when 
we truly do not know if that is the case, or whether such practice is 
applicable to all patient populations in all treatment settings. The 
APA strongly supports the need for more research on these issues.
any solution to the current problems with seclusion and restraint must 
  include the commitment of resources for staffing and staff training
    Finally, we believe that the current JCAHO emphasis on education 
offers useful lessons to Congress about staffing and patient care. We 
absolutely agree that staff must be trained in the appropriate and safe 
use of seclusion and restraint and that competency should be regularly 
demonstrated. Staffing levels are also a vital issue.
    We underscore, therefore, our continuing concern about legislative 
or regulatory efforts that will materially increase the costs of care 
without concomitantly providing the resources to deliver such care. 
This is a major failing of each of the three bills now pending in the 
Congress and should be a matter of concern to the Subcommittee as it 
considers changes to current standards on restraint in behavioral 
health care and on sentinel event policies.
    Thank you for this opportunity to submit a statement for the 
record. It is our hope that the Congressional interest in this vital 
patient care issue will provide for a thoughtful review of the clinical 
issues associated with the use of restraint and seclusion and will lead 
to changes that truly ensure the provision of all medically necessary 
treatment to psychiatric patients in an environment that is safe and 
humane for patients and staff. To achieve this balance it is vital that 
psychiatrists be allowed to participate in these discussions.
                                 ______
                                 
    Prepared Joint Statement of General Principles on Seclusion and 
  Restraint by the American Psychiatric Association and the National 
               Association of Psychiatric Health Systems
    This is a statement of general principles on the use of seclusion 
and restraint in psychiatric treatment facilities and in psychiatric 
units of general hospitals. ``Seclusion'' is defined for this statement 
as ``locked door seclusion.'' ``Restraint'' is defined for this 
statement as ``physical or mechanical restraint.'' ``Serious injury'' 
is used as defined by JCAHO as of April 1999.
                           general principles
    1. Our general goal is to ensure the provision of medically 
necessary psychiatric treatment in an environment that is safe for 
patients and staff.
    2. Seclusion and restraint are interventions that carry a degree of 
risk. They may be used when, in the clinical judgement of medical 
staff, less restrictive interventions are inadequate or are not 
appropriate, and when the risks of these interventions are outweighed 
by the risks associated with all other alternatives.
    3. Psychiatric treatment facilities and psychiatric units of 
general hospitals should have established procedures for the use of 
seclusion and restraint that conform to federal, state, or local 
regulations and standards of practice.
                     use of seclusion and restraint
    4. Seclusion and Restraint may be indicated: a. To prevent harm to 
the patient or other persons, including other patients, family members 
and staff, when other interventions are not effective or appropriate. 
b. To ensure a safe treatment environment when other interventions are 
not effective or appropriate.
    5. Use of seclusion and restraint is a matter of clinical judgement 
that should include a thorough understanding of the clinical needs of 
the individual patient and the context in which the use of seclusion or 
restraint is being considered.
    6. Special care should be taken in assessing the clinical need for 
the use of restraint in special populations. Examples of special 
populations are children and adolescents, the elderly, and the 
developmentally disabled.
            preventing the need for seclusion and restraint
    7. The use of seclusion and restraint should be minimized to the 
extent that is consistent with safe and effective psychiatric care and 
the specific clinical needs of individual patients.
    8. The provision of optimal psychiatric treatment, including 
appropriate use of psychosocial and pharmaco-therapeutic interventions, 
is an important component of a strategy to reduce the use of seclusion 
and restraint.
    9. Another component of optimal psychiatric care is staff education 
and training. Treatment facilities must have appropriate numbers of 
trained staff who are familiar with the care of the specific patient 
population in the unit or facility.
    10. Staff should be trained in the use of alternative interventions 
that may reduce the need for the use of seclusion and restraint.
           ordering and implementing seclusion and restraint
    11. Seclusion and restraint are medical interventions that require 
a physician's order.
    12. The physician should examine the patient and ensure appropriate 
monitoring and care of the patient throughout the episode.
    13. Staff should be thoroughly trained and have demonstrated 
competence in the application of safe and effective techniques for 
implementing seclusion and restraint for the patient populations under 
their care. The techniques used should be approved by the medical 
staff.
    14. Restraint should be applied with sufficient numbers of staff to 
ensure safety of the patient and staff.
    15. Patients in seclusion or restraint should be carefully 
monitored and observed at intervals frequent enough to ensure their 
continued safety and the provision of humane care.
    16. The decision to continue seclusion or restraint should not be 
viewed as ``routine.'' Patients should be removed from seclusion or 
restraint when, in the physician's judgement, the patient no longer 
poses a threat to himself/herself, other patients, or staff.
    17. The use of seclusion and restraint may be traumatic for some 
patients. The treatment team should consider post-intervention 
counseling whenever clinically indicated.
                         treatment plan review
    18. A staff debriefing should follow each episode of seclusion or 
restraint. The debriefing should include an assessment of the factors 
leading to the use of seclusion or restraint, steps to reduce the 
potential future need for the seclusion or restraint of the patient, 
and the clinical impact of the intervention on the patient.
    19. Use of seclusion and restraint, particularly when a pattern 
exists with an individual patient, should prompt a review of the 
patient's treatment plan.
    20. Psychiatric treatment facilities and psychiatric units of 
general hospitals should engage in a continuous quality improvement 
process that seeks to minimize the use of seclusion and restraint 
consistent with good standards of clinical practice and the needs of 
individual patients.
                    internal and external oversight
    21. Quality assurance measures for seclusion and restraint should 
provide for the appropriate involvement of family members or other 
public parties. These measures must protect patient confidentiality and 
the clinical integrity of the treatment program.
    22. The decision to order seclusion or restraint requires the 
clinical judgement of the treating physician, therefore policies 
governing seclusion and restraint are best dealt with through flexible 
and easily amendable mechanisms such as hospital policies and 
procedures and administrative regulations.
    23. Each psychiatric treatment facility or psychiatric unit of a 
general hospital should have, in place, a system to review the 
frequency and use of seclusion and restraint by each of its clinical 
units or groups with the intent of sharing best practices across units 
and facilities.
    24. Death or serious injury resulting from interventions involving 
seclusion and restraint must be reviewed internally. In addition to 
internal review, external review by or subject to an accrediting 
organization may also be required, with appropriate legal and 
confidentiality protections.
    [Clerk's note.--The Report of the Task Force on Seclusion and 
Restraint does not appear in the hearing record but is available for 
review in the subcommittee files.]

                                 
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