‘One-hour requirement’ controversy slows down emergency restraint regulations

AJ Ruben, attorney for Disability Rights Vermont, testifyies before the Legislative Committee on Administrative Rules at the Statehouse on Wednesday, Sept. 4, 2013. Photo by Viola Gad/VTDigger

AJ Ruben, attorney for Disability Rights Vermont, testifies before the Legislative Committee on Administrative Rules at the Statehouse on Wednesday. Photo by Viola Gad/VTDigger

Vermont is adopting new regulations for its mental health system, but the process has taken more than a year and the Department of Mental Health is struggling to come up with a proposal hospitals and patient advocates can accept.

The main area of contention surrounds who should tend to mentally ill patients within an hour after they have been involuntarily restrained or secluded.

Representatives of both sides shared testimony for more than two hours in front of the Legislative Committee on Administrative Rules (LCAR) on Wednesday. The committee advised the groups to meet once again with the Department of Health and come up with a new proposal by the next LCAR meeting Sept. 19.

The Centers for Medicare and Medicaid Services (CMS) require that a physician or an independent licensed practitioner (who can be a nurse) make a face-to-face evaluation of the patient within an hour after seclusion or restraint, which can include involuntary medication.

Patient advocates and members of the advocacy group Disability Rights Vermont argued that only physicians should be allowed to perform the evaluations.

Hospital officials said requiring physicians to conduct the face-to-face evaluation is a waste of resources and not always necessary.

“To know an individual, to know what might trigger them and makes them agitated is very important,” said Gordon Frankle, chief of psychiatry at Rutland Regional Medical Center.

A physician who called in to a clinic might not know the patient and could make a different, and perhaps less beneficial, judgment than a nurse who has worked with that patient for days or months, he said.

The Department of Mental Health wants the two sides to work out the differences.

“The attempt was being made to reconcile the two sides, and apparently they didn’t,” said Dena Monahan, an assistant attorney general with the Department of Mental Health. “I have a meeting with all these folks to try and reach consensus on this issue — just like we did before.”

The one-hour requirement is still the rule; the argument is over “who is going to do it, what it’s going to cost and how easy it will be to provide the service,” said David Mitchell, director of nursing at the Department of Mental Health.

As of now, requirements vary from hospital to hospital, Mitchell said.

“Fletcher Allen Health Care and Green Mountain Psychiatric Care Center (in Morrisville) has 24/7 in-house physicians, so they can do that,” he said.

Other hospitals would have to call in physicians, a service that would cost more than $500,000 a year, Frankle said.

If the final rule determines that only physicians will be able to conduct the assessment, it would be taxpayers who feel the economic impact, Mitchell said.

Patient advocates say nurses should not be allowed to make the one-hour judgment. AJ Ruben, supervising attorney at Disability Rights Vermont, says the state is jeopardizing patients’ rights by letting nurses medicate patients and perform the one-hour consultation.

Ruben said that according to statutes 187629c and 187251.9, only a physician should be allowed to order medication after personal observation, because that was the standard at the state hospital, he said.

Cost should not be a factor, he said.

“We should fund the mental health system so they are capable of doing what other systems can’t,” he said. “The way we treat people who are locked away, who we can’t see, that’s what reflects who we are as a society.”

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  • Fred Woogmaster

    “All professions are conspiracies against the laity.”
    George Bernard Shaw, 1906.

    See: “A Perilous Progress: Economists and Public Purpose in Twentieth Century America” by Michael A. Bernstein: ‘Professional Expertise as a Historical Problem’.

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