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Use of Tasers and other control weapons remains debate in hospitals

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October 1, 2019

By A.J. Plunkett (aplunkett@decisionhealth.com)

Carefully review whether you want to allow security officers to carry conducted-electrical weapons (CEW) such as Taser® devices on your facility grounds. If you choose to allow them, ensure a high level of training in both when and how to use the weapons, compliant with your hospital’s weapons policy and CMS’ restraint and seclusion requirements.

Also be aware that CMS has cited hospitals for the improper use of such weapons, including a Pennsylvania hospital who faced immediate jeopardy (IJ) after a guard used a CEW in an attempt to control a patient earlier this year who was “becoming verbally and physically aggressive.”

The hospital was able to have the IJ removed the same day as the complaint investigation by banning the weapons from the premises, according to the CMS deficiency report filed after an investigation in April.
In a June incident that took place in a South Carolina hospital, a patient was able to take a CEW away from a private security officer during an altercation and used the weapon on a nurse. That patient was later charged with assault.

When and how to arm security guards or off-duty police officers working in hospitals has long been debated, with little resolution—especially with the ongoing concern about workplace violence and active shooter incidents.

Repeated questions to the International Association for Healthcare Security and Safety (IAHSS) led the group to approve new guidelines in January. However, the guidelines don’t encourage or discourage arming officers with firearms, but rather list considerations for discussion in developing a policy.

CEWs are among an array of control devices often employed by security officers, such as handcuffs, pepper spray, and batons. “There is heated debate presently regarding these tools and whether they have any place in the healthcare setting,” notes Sarah Henkel in the introduction to the position paper “Violence in Healthcare and the Use of Handcuffs,” published in 2018 by the IAHSS Foundation.

Hospitals cited for improper use of CEWs

While CMS has cited hospitals for incidents involving CEWs and other such control tactics, it leaves the decision on arming officers up to hospitals. However, CMS is clear in the State Operations Manual, Appendix A (SOMA), which contains interpretive guidelines for the enforcement of Medicare Conditions of Participation, that weapons are not to be used for restraint.

“CMS does not consider the use of weapons in the application of restraint or seclusion as a safe, appropriate health care intervention. For the purposes of this regulation, the term ‘weapon’ includes, but is not limited to, pepper spray, mace, nightsticks, tazers, cattle prods, stun guns, and pistols. Security staff may carry weapons as allowed by hospital policy, and State and Federal law. However, the use of weapons by security staff is considered a law enforcement action, not a health care intervention. CMS does not support the use of weapons by any hospital staff as a means of subduing a patient in order to place that patient in restraint or seclusion,” states the SOMA.

The arming of hospital security officers varies across the country, notes Ernest E. Allen, ARM, CSP, CPHRM, CHFM, a former Joint Commission surveyor and now a patient safety consultant for The Doctor’s Company in Ohio.

“In general, many of the large medical centers often have their own police security force, with officers licensed by the state with full arrest authority. This is very helpful as the officers respond much quicker than the city police department, and helps deter wrongful arrest or detention lawsuits. Most of those private medical center security/police officers are equipped with firearms and Tasers,” says Allen.

“Medium size hospitals with security staff often do not carry firearms, but it varies considerably depending on the location, with urban locations more likely to have officers with firearms and sometimes Tasers.”

“Small hospitals with security officers are almost never equipped with firearms or Tasers and rely on the response of the local police or sheriff department. A few small hospitals may hire off-duty police to provide coverage on weekends when the ED is busy,” notes Allen, “and those officers would be armed.”

What are the concerns?

Overall, liability would be less for hospitals if security officers are not issued firearms or Tasers, he says. But there is a need to protect employees as well as others from out-of-control patients or visitors.

“Healthcare employees face a much higher risk than of a workplace injury, with the ED being the prominent location. That is why most hospitals have a security office or officer stationed adjacent to the ED entrance. And EDs have lockdown capability to prevent unauthorized people from entering.”

Hospitals face competing concerns when considering arming officers, notes Steven A. MacArthur, senior compliance consultant with The Greeley Company in Danvers, Massachusetts.

“The fact of the matter is that once you introduce weapons into the equation, it increases the potential for something bad to happen, and while bad things may not happen often, I guess it comes down to weighing the risks,” says MacArthur.

“That said, CMS says no weapons on patients unless it is for a forensic/laws enforcement reason, so the risk is compounded from a compliance standpoint.” Anytime it does happen, the hospital can expect a visit from CMS.

“There are potentially all sorts of liability issues when you ‘weaponize’ your security force,” says MacArthur. Those include making sure:

  • Officers are competent to use the weapons they are provided
  • There are very clear rules of engagement and use-of-force elements in the hospital policy
  • That security officers know how to “safe” their weapons

There may also be legal concerns about providing a safe workplace, he notes.

Protect patient rights

But providing security while protecting patient rights is also a difficult balance, MacArthur says. A hospital’s policy may require, for instance, that a security officer secure any weapons before helping to restrain a patient, he says. But incidents escalate quickly.

“The big piece of this is that any time you do the laying on of hands, it is a time of significantly increased risk to everyone involved; restraint education, inclusive of practicing takedowns and holds, is an important way to minimize the risk to the extent possible, but it is never a risk-free endeavor,” says MacArthur. “I’ve had very experienced officers accidentally break a patient’s leg because the patient wasn’t educated in restraint—he zigged when he should have zagged, and the next thing you know he’s screaming. It’s always easy to Monday morning quarterback when something goes wrong, and there are plenty of folks willing to do just that.”

“Even with the best education and practice, things can go sideways, so they have to set up to minimize the risk.”

[Sidebar]

CMS clear on use of weapons as restraint: Don’t

CMS clearly states its position on the use of weapons on patients. It can be found within the interpretive guidelines for surveyors outlining patient’s rights expectations as a Medicare Condition of Participation, under A-Tag A-0154 of the State Operations Manual, Appendix A.

The guidelines also state that inappropriate use of restraint and seclusion is a condition-level deficiency. Such deficiencies could result in an immediate jeopardy ruling that could threaten a hospital’s ability to bill Medicare.

The guidelines also make clear that hospital leadership holds the ultimate responsibility for restraint and seclusion deficiencies.

According to A-0154:

“CMS does not consider the use of weapons in the application of restraint or seclusion as a safe, appropriate health care intervention. For the purposes of this regulation, the term “weapon” includes, but is not limited to, pepper spray, mace, nightsticks, tazers, cattle prods, stun guns, and pistols. Security staff may carry weapons as allowed by hospital policy, and State and Federal law. However, the use of weapons by security staff is considered a law enforcement action, not a health care intervention. CMS does not support the use of weapons by any hospital staff as a means of subduing a patient in order to place that patient in restraint or seclusion. If a weapon is used by security or law enforcement personnel on a person in a hospital (patient, staff, or visitor) to protect people or hospital property from harm, we would expect the situation to be handled as a criminal activity and the perpetrator be placed in the custody of local law enforcement.

“The use of handcuffs, manacles, shackles, other chain-type restraint devices, or other restrictive devices applied by non-hospital employed or contracted law enforcement officials for custody, detention, and public safety reasons are not governed by this rule. The use of such devices are considered law enforcement restraint devices and would not be considered safe, appropriate health care restraint interventions for use by hospital staff to restrain patients. The law enforcement officers who maintain custody and direct supervision of their prisoner (the hospital’s patient) are responsible for the use, application, and monitoring of these restrictive devices in accordance with Federal and State law. However, the hospital is still responsible for an appropriate patient assessment and the provision of safe, appropriate care to its patient (the law enforcement officer’s prisoner).”
 




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