Legal and Regulatory Issues Governing the Use of Restraints

Book Chapter in Braun, J. V. and Lipson, S., eds.,Toward a Restraint Free Environment: Reducing the Use of Physical and Chemical Restraints in Long-Term Care and Acute Care Settings (1993)

27 Pages Posted: 14 Feb 2014

Date Written: 1993

Abstract

Restraint reform measures present many challenges to long-term care providers. However, with a solid understanding of the legal ramifications, providers can take effective steps to comply with federal and state requirements to reduce or eliminate restraint use as far as possible. Many long-term care providers have voiced concerns that the inability to use restraints may aggravate already crises-level staffing shortages, lead to injuries to residents, and increase providers' potential liability under state and federal law. In fact, contray to popular belief, adopting appropriate restraint policies and procedures providing for restraint usage only as a last resort can significantly reduce a facility's exposure to regulatory, civil and criminal liability. Indeed, review of the case law shows that failure to use restarints properly and to properly supervise restrained residents has increased providers' legal exposure far more than has the nonuse of restraints.

This chapter examines the practices, devices, and forms of treatment that constitute physical and chemical restraints and describes the circumstances under which such restraints may be used consitent with applicable legal requirements. Thereafter, this chapter analyzes the the circumstances in which liability has been imposed on providers for the nonuse and misuse of restraints and describes how potential liability may be altered by federal and state regulations governing restraint usage. The chapter concludes with suggested strategies that health care providers may implement in order to reduce their potential liability exposure.

Suggested Citation

Harkins, Malcolm J. and Oliver, Pamela, Legal and Regulatory Issues Governing the Use of Restraints (1993). Book Chapter in Braun, J. V. and Lipson, S., eds.,Toward a Restraint Free Environment: Reducing the Use of Physical and Chemical Restraints in Long-Term Care and Acute Care Settings (1993) , Available at SSRN: https://ssrn.com/abstract=2394947

Malcolm J. Harkins (Contact Author)

St. Louis University ( email )

School of Law
100 N. Tucker Blvd.
St. Louis, MO 63101-1930
United States
314 977 3998 (Phone)
314 977 3332 (Fax)

Pamela Oliver

Proskauer Rose LLP ( email )

Eleven Times Square
New York, NY 10036-8299
United States

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