Montana rules unclear in 'chemical restraint' of children

When Annette Smith found out a 9-year-old Oregon girl she represents was being 'chemically restrained' for misbehavior and secluded in a Montona facility, she was 'horrified and scared for my client's safety,' Smith told members of the Oregon Senate Human Services Committee on April 11.

Posted: Apr 22, 2019 11:32 AM

By TED MCDERMOTT Montana Standard

BUTTE, Mont. (AP) — When Annette Smith found out a 9-year-old Oregon girl she represents was being injected with Benadryl and other antihistamines to chemically restrain her for misbehavior and was also frequently being placed in locked seclusion while being treated at Acadia Montana in Butte, she was "horrified and scared for my client's safety," Smith told members of the Oregon Senate Human Services Committee on April 11.

Soon after this revelation about the girl's treatment came to her attention in March, Smith and other advocates began the process of trying to pull her out of the 108-bed psychiatric residential treatment facility that treats children ages 5 to 18 with a range of behavioral issues, including major depressive disorder, disruptive mood dysregulation disorder, attention deficit/hyperactivity disorder, oppositional defiant disorder, and autism.

Last Monday, they succeeded, the Montana Standard reported. The girl, who had been in foster care before being moved to Butte six months ago, was removed from Acadia Montana and taken back to Oregon.

Gretchen Hommrich, director of investor relations for Acadia Healthcare, declined to answer a list of specific questions The Montana Standard asked about Acadia Montana and the use of chemical restraints and instead provided a statement that confirmed the use of injected chemical restraints is a "customary" practice.

"If a patient is having an acute episode endangering themselves or others around them and has not responded well to other behavioral control methods, then it is customary to administer medication by injection," her statement read. "Medication by injection is only used when absolutely necessary for the patient's safety and well-being. Nonetheless, when Oregon DHS informed us that it does not authorize medication by injection, we immediately stopped the practice."

When asked whether the facility ceased this practice for all patients at Acadia Montana, another Acadia spokesperson said the Butte facility "stopped the practice for Oregon patients." There currently are no Oregon patients at the facility.


CLICK HERE for the original story on this 9-year-old from Oregon and allegations made by her advocates.


Smith, a public defender in Eugene, Oregon, told lawmakers the girl has "significant behavioral issues" and "heightened needs" and that she's concerned the effects of her time in Butte will be traumatizing and long-lasting. Smith said she is also worried about other patients of the facility on Basin Creek Road.

"If this can happen to my client, I worry about all of the other kids out there," she told The Montana Standard last Monday.

A review of public records as well as interviews with former employees indicate that the use of injected medication and seclusion has indeed frequently happened to other kids at the Butte facility and that it has been happening for years.

For example, in a letter dated Sept. 29, 2016, a DPHHS inspector faulted Acadia Montana for being unable "to maintain a safe environment which is evidenced by the number of Emergency Safety Interventions that occur." Those emergency interventions included seclusion and "emergency medication."

The DPHHS inspector noted that in August of that year alone there had been over 500 incidents when "medication was ordered for the resident...in order to assist in managing the residents (sic) behavior." Acadia Montana also recorded the use of 126 seclusions just in March 2016.

In addition, in the course of a 2014 survey conducted by DPHHS for the federal Centers for Medicare and Medicaid Services (CMS), observers found instances in which children were left in locked seclusion rooms after calming down for periods of up to 40 minutes.

There were also reportedly times when secluded "kids peel paint off the walls in the seclusion rooms" and the paint "gets under their fingernails and they complain its painful," according to the same 2014 CMS survey. One child in locked seclusion reportedly used "a tiny piece of plastic to scratch his belly and (was) shrieking very loudly."

Several states, including Oregon and Alaska, as well as various tribal governments, send kids to Acadia Montana for treatment.

When investigators from Alaska conducted an annual review of the facility in 2016, they found that patients "did not like injectable medication (IM) and when they receive an IM they go to bed and sleep all day."

During the same inspection, 15 of 15 Alaska residents — 14 of whom were below the age of 12 — who were interviewed stated they didn't like the facility, citing "shots (IM)" among their reasons.

Alaska filed a complaint with Montana DPHHS after the review was complete, prompting further investigation.

When Montana's follow-up was completed, a Montana DPHHS investigator wrote to Acadia Montana's then-CEO, Carter Anderson (see accompanying story), to note that Alaska investigators found that "intramuscular injections of PRN medication, holds and/or restraints were common." ("PRN medication" refers to drugs administered as needed to manage agitation and psychotic behavior.)

While the facility did bring the numbers down over the course of 2016 and 2017 (see related story), the use of seclusion and medication to manage behavior apparently continued under the watch — and tabulation — of DPHHS.

As part of a series of "additional corrective action measures" mandated due to persistent problems at the facility, the DPHHS inspector required Acadia Montana to begin submitting monthly reports known as Data Collection and Summary on Actual Number of High Risk Incidents. Acadia Montana complied, providing such reports between October 2016 and April 2017 that tabulated the number of seclusions and emergency medical interventions performed at the facility, along with other data.

Interviews with former employees suggested the use of injected emergency medication and seclusion has been common at the facility over recent years.

A former Acadia Montana employee who asked not to be identified told The Montana Standard late last year that kids were injected with Haldol mixed with Thorazine or Benadryl so often that "staff used to joke around and call them 'butt darts.'"

A second former employee corroborated that account, saying that being administered such injectable medications "means you're going to be sedated and you're probably not going to be up for two days and you're probably going to be punished because you can't wake up."

Both employees said the use of seclusions that lasted an hour or more were common.

The employees said they worked there for years, off and on, beginning in about 2009.

Two other employees who worked at the facility in 2018 and also asked not to be named said the facility used two locked seclusion rooms and injected medication to control patients. They said staff called the injections "butt shots" and "booty juice."

(Haldol is a drug used to treat schizophrenia and Tourette's syndrome, while Thorazine is an anti-psychotic medication used to treat schizophrenia and manic depression in adults and severe behavioral problems in children.)

Asked if DPHHS is aware Acadia Montana has used chemical restraints, Jon Ebelt, public information officer for DPHHS, did not directly answer, referring instead to DPHHS's survey procedures for determining whether there have been deficiencies in care.

Acadia Montana CEO Peggy Cunningham declined to comment for this story, though she spoke at length to The Montana Standard about her background and approach in December. At that time, she said that the facility kept "track of seclusion and restraint" and had successfully reduced its use. (See story coming Tuesday.)

Whether or not the Administrative Rules of Montana permit the use of injected medication to control behavior at Acadia Montana and similar facilities is unclear.

Last Monday, Ebelt said, "Chemical restraints are not allowed."

But Ebelt and another DPHHS public information officer, Chuck Council, said they were unable to respond by press time to a series of follow-up questions about what rules prohibit and define chemical restraint and whether there are rules that prohibit and define other interventions, such as seclusion, that have drawn criticism this month from Oregon.

Those questions were first posed on Monday, and The Montana Standard followed up repeatedly throughout the week in search of clarification.

Efforts to find the rules that govern Acadia Montana and other state-licensed Psychiatric Residential Treatment Facilities were also stymied by the fact that many of those rules appear to exist in a document that is not publicly available, the Joint Commission on Accreditation of Healthcare Organizations' 2017 Comprehensive Accreditation Manual for Behavioral Healthcare.

The Montana Standard attempted to purchase this document for $320, but it could not be received by press time because the Joint Commission only issues the document in printed form and ships it from Atlanta, Georgia.

Experts from outside DPHHS attempted to clarify the rules, in the absence of information from the agency.

While noting that Acadia Montana is licensed as a Psychiatric Residential Treatment Facility, a spokesperson for the Montana Department of Justice said by email that it would be governed by the rules for Youth Care Facilities.

According to those rules, "'Chemical restraint' means the use of a drug or medication that is used to control behavior or restrict the youth's freedom of movement, and which is not a standard treatment for the youth's medical or psychiatric condition. The use of chemical restraint is prohibited in all YCFs (youth care facilities).'"

Those rules also define "seclusion" as "a behavior control technique involving locked isolation in which the resident is physically prevented from leaving" and state, "Seclusion is prohibited in licensed YCFs."

While the definitions of "seclusion" and "chemical restraint" are quite straightforward in these administrative rules, Craig Fitch, acting director of the Montana Mental Disabilities Board of Visitors, which is housed in the Office of the Governor and aims to provide outside oversight of mental health programs in the state, said this week that Acadia Montana is regulated by a different set of rules — those for Residential Treatment Facilities.

But many of those rules are only available for sale through the Joint Commission, which is an independent nonprofit and not a public entity.

Not even Fitch had access to a copy of those rules this week, but he said he believed that there is a difference between chemical restraint, which is prohibited, and emergency medication, which he said "is clearly legal to use . in emergency situations."

Asked about the difference between the two, Fitch, an attorney, said that the use of drugs to control behavior would be considered emergency medication if a child is "actively dangerous and imminently dangerous to (him or her) self or others."

Fitch said he didn't "know all the nuances of what would or wouldn't define a chemical restraint, except a restraint is something that is going to be used primarily for the benefit of the staff as opposed to the child" and that chemical restraint might be occurring if a "pattern" of emergency medication emerged in a facility.

Ultimately, though, he said that in "any individual administration of an intramuscular medication . there would be no legitimate way for you to know whether this was for the use of emergency medication or an inappropriate chemical restraint. It's hard from the outside on a superficial level to know for sure what's going on."

That said, he allowed that the revelations about the treatment of the girl in Oregon suggest "a pattern of defaulting to the administration of a medication" that may qualify as the use of chemical restraint, which he said is "unethical and inconsistent with the standards of practice."

And according to Fitch, the final determination about whether injecting a child with medication is a chemical restraint or emergency medication is up to DPHHS and the agency official who inspects a facility.

While Fitch said DPHHS can interpret the rules how they want, that "doesn't give them carte blanche to make ridiculous rules."

He added that the agency is compelled to interpret rules reasonably by outside pressures.

"When the cats get out of the bag and it becomes obvious that you have been trying to suppress these issues through creative interpretation, then you end up looking like an idiot and you go down in flames," Fitch said.

Along with being overseen by the state, Psychiatric Residential Treatment Facilities like Acadia Montana are regulated by the federal Centers for Medicare and Medicaid Services and must comply with that agency's regulations, which define a "drug used as a restraint" as one that is "administered to manage a resident's behavior in a way that reduces the safety risk to the resident or others; has the temporary effect of restricting the resident's freedom of movement; and is not a standard treatment for the resident's medical or psychiatric condition."

Those CMS rules do allow the use of drugs as restraints in emergency safety situations, which occur when "unanticipated resident behavior ... places the resident or others at serious threat of violence or injury if no intervention occurs."

While the definition and rules that apply to chemical restraint, emergency medication and other as-needed (or PRN) medication are murky in Montana, it is clear that Acadia Montana has used medication to manage patient behavior for years.

Concerns about this practice have already led the Oregon Department of Human Services to vow that it will no longer send kids to Acadia Montana or any other facility run by Acadia Healthcare, the troubled for-profit company that operates a network of 586 behavioral healthcare facilities.


CLICK HERE for more on an Oregon lawsuit targeting lawmakers and DHS officials, claiming that they failed to protect foster kids.


Sara Gelser, a Democratic state senator in the Oregon Legislature whose district covers Corvallis and Albany, is the chair of the Senate Human Services Committee, before which Smith, the 9-year-old's attorney, testified. Since hearing about the girl, Gelser has been looking into Acadia Montana, its parent company Acadia Healthcare and the out-of-state placement of Oregon's foster children. And she has become deeply concerned about what she has found means for the young people treated at Acadia facilities like the one in Butte.

"If our little Oregon girl is being treated like that, she's not the only one," Gelser told The Montana Standard this week. "I hope the Montana oversight people are in there right now and that they shut them down."

But the kind of decisive action taken in Oregon after advocates and officials there learned about the treatment given at Acadia Montana has not been seen in the Treasure State, despite a long history of allegations of mistreatment at the for-profit facility.

Gelser believes the difference, in part, has to do with the specific, human story that has come to light about the 9-year-old Oregon girl, despite a system that makes it hard for victims of such practices to come forward.

"I'm convinced that we have other kids for whom the same thing is true, we just haven't reported on them," Gelser said. "And we haven't had hearings about them, and it's hard to find them, because they're locked away in faraway places, where you have to be on an approved visitors list to get to the children and the children don't necessarily know that what's happening to them isn't right.

"They probably think that they deserve it," Gelser continued. "And that's perhaps the saddest part of all, that they don't even know they can ask for help and that they deserve so much better than what we're doing to them."

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