Information Bulletin 99-5
- Memorandum From the Commissioner of Health
- Amendments to Minnesota Statutes 1998 Sec. 144.651 and 144A.10
Requesting The Use Of A Physical Restraint
Laws of Minnesota - 1999 Chapter 83
On April 23, 1999, Governor Ventura signed into law the provisions of House File 40 which establishes the right of a competent resident or the family, guardian, conservator, or health care agent of a person who is not competent, (hereafter referred to as surrogate decision makers) to request the use of physical restraints. This law gives competent residents and surrogate decision makers more involvement in whether or not to use a physical restraint. This law allows a physical restraint if the competent resident or surrogate decision maker signs a consent form and the attending physician writes an order for the restraint. A feature of this new law is that an acceptable medical symptom for a physical restraint can be "to enhance the physical safety of the resident" or the resident's fear of falling. The law is in effect now,and a copy is attached for your use in implementation of the law.
This bulletin provides information to implement the law. It focuses on the responsibilities of the competent resident or surrogate decision maker, the nursing facility, the physician and the Minnesota Department of Health (MDH). We have also included a letter from Commissioner Malcolm that you might find useful in answering the initial questions you are receiving about the law from residents and families.
I. The Responsibilities of the Competent Resident or Surrogate Decision Maker
Rights of a Competent Resident
If the resident is competent to participate in the planning of his or her care, it will be up to that resident to make the decision regarding a physical restraint. While a family member may not agree with the resident's decision, the choice will still be with the competent resident. Family members may not override a competent resident's request to either use or not use a physical restraint.
Understanding the Process for Restraint Approval
It is important for the competent resident and surrogate decision makers to understand that the new law creates a process which must be followed to allow the use of a physical restraint. They will be provided information about alternatives to and the risks involved with physical restraint use, asked to sign a consent form, and authorize the facility to discuss the request for physical restraint with the attending physician. The use of the physical restraints will be periodically reviewed with the competent resident or surrogate decision maker and the attending physician.
II. Responsibilities of the Nursing Facility
Provide Information to Competent Residents and Surrogate Decision Makers
The nursing facility must inform competent residents and surrogate decision makers about alternatives to and the risks involved with physical restraint use. The Department will not require that a legal determination of incompetency be made before a surrogate decision maker can exercise this right. If there is documentation in the record that a resident cannot make decisions, the Department will accept a surrogate decision maker's request for a restraint. An evaluation from the physician is not required, but may be helpful or information from the Resident Assessment Protocol related to cognition is acceptable for documentation. Please remember that a family member cannot override a competent resident's decision to either use or not use a physical restraint.
When a physical restraint is requested, the facility will include a notation of the request in the resident's medical record. Facilities have the option of developing information that explains the risks of physical restraint use and alternatives that could be used instead of the physical restraint. The physical restraint brochure published by MDH is one resource that could be used for this purpose. (The text of the brochure can be printed from the Division's web site at: http://www.health.state.mn.us/divs/fpc/safety.htm.)
Please keep in mind: If a side rail or other device is used only as an assistive device and does not restrict the resident's movement from bed or chair, the process involving the consent form and written order from an attending physician does not apply. It is necessary that the facility identify the purpose of the device and make sure that any safety concerns related to the use of the device are minimized.
The nursing facility must provide a consent form that can be signed by the competent resident or surrogate decision maker. The consent form should be dated and contain a statement that information regarding alternatives to and risks involved with physical restraint use has been provided, that this information has been understood, and that the decision for the use of the physical restraint is freely given. It is not necessary to obtain signed consent from the resident or surrogate decision maker before using a physical restraint in an emergency situation. (See Minn Rules 4658.0300 http://www.revisor.leg.state.mn.us/arule/4658/0300.html)
Accept Only Individualized Orders
Because the law requires the attending physician to make statements and determinations regarding the medical symptoms of the individual resident, nursing facilities should not accept standing orders from physicians for physical restraint use.
Monitor Physical Restraint Use
The nursing facility will continue to be responsible for the health and safety of all residents, including those who use physical restraints. This includes monitoring the resident while a physical restraint is in use, as well as assuring that the use of the physical restraint does not create a safety hazard to the resident. If the resident who uses a physical restraint demonstrates interaction with the physical restraint that could endanger the resident, the facility must evaluate the incident immediately. Based on this evaluation the facility could make a determination that continued use of the physical restraint is warranted or it could take action to eliminate the unsafe situation, including discontinuation of the physical restraint or the use of an alternative method to provide safety. In responding to the incident, the facility must include the competent resident or surrogate decision maker and the attending physician.
Evaluate Continued Restraint Use
As part of the on-going care planning and individualized assessments of the resident, continued use of the physical restraint should be evaluated. Consistent with federal and state rules, the facility should work with the competent resident or surrogate decision maker and the attending physician to find the least restrictive physical restraint that meets the resident or surrogate decision makers desire for physical safety. The consent forms and the written order of the attending physician should be reviewed and updated periodically. You may wish to review the decision to use a physical restraint as part of the quarterly MDS and care plan review. You should also review the decision as the resident's condition changes.
Post and Distribute Revised Bill of Rights
Because the law adds a new subdivision to the Resident Bill of Rights, the nursing facility must take steps to distribute the new subdivision to all residents. A copy of the law, along with the Bill of Rights currently used in the facility should be given to new residents upon admission. Current residents and surrogate decision makers must also receive a copy of the law. If the nursing facility documents how and when information was provided to current residents and surrogate decision makers there is no need to obtain individual signatures to verify receipt of the law. Distribution of the law to current residents, and surrogate decision makers must be completed by July 1, 1999.
Facilities must immediately post a copy of the law in the same place where the Bill of Rights is currently posted in the facility. The use of additional handouts or the additional posting will not be required once the facility has revised the Bill of Rights to include the new provision into the material provided to residents and posts a revised copy of the Bill of Rights. We also suggest that copies of the law be made available to family members and the physicians in your community.
III. Responsibilities of the Attending Physician
Evaluate Request for Physical Restraint
The law places responsibility on the attending physician to determine the presence of a medical symptom, which justifies the use of physical restraint. Before the request for a physical restraint can be honored, the physician must evaluate the request in light of the physical and psychological needs of the resident. The use of a device as a physical restraint is considered to be a medical treatment and the attending physician's review is critical.
Specify Medical Symptom
The new law specifically states that residents and surrogate decision makers have the right to request and consent to the use of a physical restraint in order to treat the medical symptom of the resident. The law clarifies that an acceptable medical symptom for a physical restraint include: the resident's fear of falling; and/or a request to use a physical restraint "to enhance the physical safety of the resident."
Provide Written Order
The law requires that the resident's "attending" physician provide a written and signed order that contains the statements and determinations regarding the medical symptoms and specifies the circumstances under which physical restraints are to be used. These circumstances include when the physical restraint is to be used (at night?, during the day?, periodically?, at all times?) and where (bed only?, chair only?, both bed and chair?).
IV. Responsibilities of the Department of Health
Accept the Physician Order
The law will protect the facility from state fines and remedies "solely as the result of allowing the use of a physical restraint as authorized". If the facility uses a physical restraint and the use is based on the request from the competent resident or a surrogate decision maker, there is a signed consent, and the attending physician's orders contains statements and determinations regarding medical symptoms and specifies the circumstances for the use of the physical restraint, the Department will not cite the facility for the use of a physical restraint. As specified in the law, the Department will accept the statements and determinations contained in the attending physician's written order as sufficient evidence of medical necessity for the use of the physical restraint.
Monitor Facility Practice
The law does not restrict the Department's enforcement authority in situations when the use of the physical restraint has jeopardized the health and safety of the resident and the nursing facility has failed to take reasonable measures to protect the resident. The Department will continue to determine if the facility is monitoring the use of physical restraints and completing the required periodic assessments of the need for the physical restraint.
If you have questions regarding the law and this bulletin, please send your questions in writing to:
David Giese, Director
Health Regulation Division
Minnesota Department of Health
P.O. Box 64900
St. Paul, Minnesota 55164-0900
DATE: April 29, 1999
TO: Nursing Facility Residents and Their Families Who Request a Physical Restraint
FROM: Jan K. Malcolm, Commissioner of Health
SUBJECT: Requesting the Use of Bed Side Rails and Other Physical Restraints
On April 23, 1999, Governor Ventura signed a law giving nursing facility residents and their families the right to request a physical restraint under the state's Patient Bill of Rights. The Governor, the legislature and the Minnesota Department of Health believe this law provides a clear basis for residents and families to use, as they work with their personal physician and the nursing facility to provide a safe environment.
The law sets up a process for requesting a physical restraint. To request a restraint you must follow these steps:
- Use of a physical restraint can be requested by a competent nursing facility resident, or by an alternative decision maker if the resident is not competent to make decisions about their health care. The alternative decision maker can be a family member, a health care agent, a conservator, or a guardian.
- The nursing facility must provide you with information about alternatives to the use of restraints, and the risks involved in using restraints.
- If you still wish to proceed with your request for a physical restraint after learning about alternatives to restraint use, and the risks of using restraints, you will be asked to sign a consent form.
- The nursing facility will forward your request to the attending physician, and the physician will evaluate the request. If your request is approved, the physician will prepare a written order specifying the medical symptom for which the restraint is being used. The new law says that concern for physical safety, as well as a resident's fear of falling can be a medical symptom justifying the use of a restraint. The physician will also indicate when and where the restraint is to be used.
The safety of residents who use restraints will be closely monitored by the nursing facility. If a restrained resident appears to be unsafe, the nursing facility must immediately evaluate the risks of continuing to use a physical restraint. Examples of risks which must be evaluated are climbing over bed side rails, or becoming caught between the mattress and the bed side rail. The nursing facility will consult with the resident or the alternative decision maker, and the attending physician, if there are safety issues.
The law requires that continued use of a restraint be periodically evaluated. You will be asked about continuing to use the restraint as part of the care planning process.
Text of the actual law follows:
H.F. No. 40, 2nd Engrossment: 81st Legislative Session (1999-2000)
A bill for an act relating to health; allowing a nursing home resident to request and consent to the use of a physical restraint; requiring certain actions by the commissioner of health with respect to immediate jeopardy citations; amending Minnesota Statutes 1998, sections 144.651, by adding a subdivision; and 144A.10, by adding a subdivision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1998, section 144.651, is amended by adding a subdivision to read:
Subd. 33. [RESTRAINTS.]
- Competent nursing family members of residents who are not competent, and legally appointed conservators, guardians, and health care agents as defined under section 145C.01, have the right to request and consent to the use of a physical restraint in order to treat the medical symptoms of the resident.
- Upon receiving a request for a physical restraint, a nursing home shall inform the resident, family member, or legal representative of alternatives to and the risks involved with physical restraint use. The nursing home shall provide a physical restraint to a resident only upon receipt of a signed consent form authorizing restraint use and a written order from the attending physician that contains statements and determinations regarding medical symptoms and specifies the circumstances under which restraints are to be used.
- A nursing home providing a restraint under paragraph (b) must:
- document that the procedures outlined in that paragraph have been followed;
- monitor the use of the restraint by the resident; and
- periodically, in consultation with the resident, the family, and the attending physician, reevaluate the resident's need for the restraint.
- A nursing home shall not be subject to fines, civil money penalties, or other state or federal survey enforcement remedies solely as the result of allowing the user of a physical restraint as authorized in this subdivision. Nothing in this subdivision shall preclude the commissioner from taking action to protect the health and safety of a resident if:
- the use of the restraint has jeopardized the health and safety of the resident; and
- the nursing home failed to take responsible measures to protect the health and safety of the resident.
e. For purposes of this subdivision, "medical symptoms" include:
- a concern for the physical safety of the resident; and
- physical or psychological needs expressed by a resident. A resident's fear of falling may be the basis of a medical symptom.
A written order from the attending physician that contains statements and determinations regarding medical symptoms is sufficient evidence of the medical necessity of the physical restraint.
f. When determining nursing facility compliance with state and federal standards for the use of physical restraints, the commissioner of health is bound by the statements and determinations contained in the attending physician's order regarding medical symptoms. For purposes of this order, "medical symptoms" include the request by a competent resident, family member of a resident who is not competent, or legally appointed conservator, guardian, or health care agent as defined under section 145C.01, that the facility provide a physical restraint in order to enhance the physical safety of the resident.
Sec. 2. Minnesota Statutes 1998, section 144A.10, is amended by adding a subdivision to read:
Subd. 11. [FACILITIES CITED FOR IMMEDIATE JEOPARDY.]
a. The provisions of this subdivision apply to Minnesota nursing facilities:
1. that received immediate jeopardy citations between April 1, 1998, and January 13, 1999,
for violations of regulations governing the use of physical restraints; and
2. on whose behalf the commissioner recommended to the federal government that fines for
these citations not be imposed or be rescinded.
b. The commissioner:
1. shall grant all possible waivers for the continuation of an approved nurse aide training
program, an approved competency evaluation program, or an approved nurse aide training
and competency evaluation program conducted by or on the site of a facility referred to in
this subdivision; and
2. shall notify the board of nursing home administrators by June 1, 1999, that the
commissioner has recommended to the federal government that fines not be imposed on
the facilities referred to in this subdivision or that any fines imposed on these facilities for
violations of regulations governing use of physical restraints be rescinded.
Sec. 3. [EFFECTIVE DATE.]
Sections 1 and 2 are effective the day following final enactment.