CMS Interpretive Guidelines – Revisions to Restraints Guidance

As part of ALN Consulting’s commitment to our legal partners, we introduce the second installment of our CMS Interpretive Guidelines series by diving into the revisions on the use of restraints. The guidelines include an explanation of the intent of the law, definitions of terms, and instruction on determining compliance with the law. The most important update to the Interpretive Guidelines regarding restraints prohibits their use in fall prevention. This update significantly impacts the defense of long term care facilities. These revisions must be studied thoroughly in order to build a firm case for the use or non-use of restraints. Continue reading for a thorough explanation of these revisions in the Interpretive Guidelines.

42 C.F.R. §483.13(a).

The CFR Regulation states, “The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.” Relevant definitions in the Interpretive Guideline include:

Chemical Restraint: any drug that is used for discipline or convenience and not required to treat medical symptoms.

Convenience: any action taken by the facility to control a resident’s behavior or manage a resident’s behavior with a lesser amount of effort by the facility and not in the resident’s best interest.

Discipline: any action taken by the facility for the purpose of punishing or penalizing residents.

Freedom of movement: any change in place or position for the body or any part of the body that the person is physically able to control.

Medical Symptom: an indication or characteristic of a physical or psychological condition.

Physical Restraints: any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident’s body that the individual cannot remove easily which restricts freedom of movement or normal access to one’s body.

Removes easily: means that the manual method, device, material, or equipment can be removed intentionally by the resident in the same manner as it was applied by the staff (e.g., side rails are put down, not climbed over) considering the resident’s physical condition and ability to accomplish objective (e.g., transfer to a chair, get to the bathroom in time).

 

Regulation Tag F222 Guidance on Restraints

The main principal in the Interpretive Guideline is that restraints may not be used for staff convenience, and the only acceptable use of a restraint is to treat a medical symptom, with a physician order. The order itself is not justification to use a restraint, but must be “viewed in the context of the resident’s condition, circumstances, and environment.”  In addition, as a measure of last resort restraints can be used to protect the safety of the resident or others for a brief period of time. The facility may not use restraints in violation of the regulation solely based on a legal surrogate or representative’s request or approval.

When a restraint has been used, the surveyor must determine if the facility followed a systematic process of evaluation and care planning prior to using restraints, and if the plan of care was consistently implemented.

 

Surveyor “Probes” in facility use of Restraints

The defense team can use the “probes” or questions posed by the Interpretive Guidelines for surveyors in cases which involve restraints:

• What are the medical symptoms that led to the consideration of the use of restraints?
• Are these symptoms caused by failure to:
  • Meet individual needs in accordance with the resident assessments
  • Use rehabilitative/restorative care?
  • Provide meaningful activities?
  • Manipulate the resident’s environment, including seating?
• Can the causes of medical symptoms be eliminated or reduced?
• If the causes cannot be eliminated or reduced, then has the facility attempted to use any alternatives in order to avoid a decline in physical functioning associated with the restraint use?
• If alternatives have been tried and deemed unsuccessful, does the facility use the least restrictive restraint for the least amount of time? Does the facility monitor and adjust care to reduce the potential for negative outcomes while continually trying to find and use less restrictive alternatives?
• Did the resident or legal surrogate make an informed choice about the use of restraints? Were the risks, benefits, and alternatives explained?
• Does the facility use the CAA’s to evaluate the appropriateness of restraint use?
• Has the facility reevaluated the need for the restraint, made efforts to eliminate its use and maintained residents’ strength and mobility?

 

Updates to the Interpretive Guidelines

The most recent update to the Interpretive Guidelines for restraints was published in November 2014. The examples of facility practices that met the definition of restraint was noted to be “not limited to” the list. Also, in discussion of side rails, the addition of “assist with physical functioning” was added as an acceptable use.

The most important update to the Interpretive Guideline stated, “Falls do not constitute self-injurious behavior or a medical symptom that warrants the use of a physical restraint. Although restraints have been traditionally used as a falls prevention approach, they have major, serious drawbacks and can contribute to serious injuries. There is no evidence that the use of physical restraints, including but not limited to side rails, will prevent or reduce falls. Additionally, falls that occur while a person is physically restrained often result in more severe injuries (e.g., strangulation, entrapment).”

This update has implications in the defense both of the use or non-use of restraints, as well as in matters involving falls. When understood and implemented, these interpretive guidelines can be crucial in the defense of long term care facilities.

In conclusion, the successful defense of long term care facilities relies on a thorough understanding of the CMS Interpretive Guidelines. With our expertise, ALN Consulting can advise your legal team on how to best navigate the complicated CMS Interpretive Guidelines to support your legal team’s defense. Let us help you decipher the latest revisions of the Interpretive Guidelines and strengthen your long term care case.

 

References

1. Harris, Rick E. (2015). How to Use the CMS Surveyor Guidance to Craft a Winning Defense [Presentation at the DRI LTC/SNF Seminar].
2. Centers for Medicare & Medicaid Services. (2015). State Operations Manual – Appendix PP – Guidance to Surveyors for Long Term Care Facilities. Retrieved 01/04/16.