S T A T E O F N E W Y O R K
________________________________________________________________________
5439--A
2009-2010 Regular Sessions
I N A S S E M B L Y
February 13, 2009
___________
Introduced by M. of A. LIFTON, CAHILL, COOK, GALEF, GUNTHER, LUPARDO,
MAISEL, MILLMAN, ROSENTHAL, WEISENBERG, PHEFFER, ROBINSON, ESPAILLAT,
JAFFEE, SCHROEDER -- Multi-Sponsored by -- M. of A. BENJAMIN, BOYLAND,
CLARK, COLTON, EDDINGTON, GABRYSZAK, GLICK, GOTTFRIED, HOOPER, KOON,
MAYERSOHN, PERRY, REILLY, SEMINERIO, SWEENEY, TOWNS -- read once and
referred to the Committee on Mental Health, Mental Retardation and
Developmental Disabilities -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the mental hygiene law, the social services law and the
education law, in relation to establishing a bill of rights for chil-
dren in residential care
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The mental hygiene law is amended by adding a new section
33.19 to read as follows:
S 33.19 RIGHTS OF CHILDREN IN RESIDENTIAL CARE.
(A) IN ORDER TO ENSURE THAT CHILDREN PLACED IN RESIDENTIAL PROGRAMS
OPERATED OR LICENSED BY THE OFFICE OF MENTAL HEALTH OR OFFICE OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES ARE ASSURED APPROPRIATE CARE,
THE COMMISSIONER OF THE OFFICE OF MENTAL HEALTH AND THE COMMISSIONER OF
THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES SHALL
PROMULGATE REGULATIONS REGARDING RIGHTS OF SUCH CHILDREN IN RESIDENTIAL
CARE. SUCH REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO:
1. THE RIGHT TO A SAFE, NURTURING ENVIRONMENT FREE FROM ABUSE AND
MISTREATMENT BY EMPLOYEES AND OTHER RESIDENTS OF THE FACILITY;
2. THE RIGHT TO AN INDIVIDUALIZED PLAN OF TREATMENT SERVICES DESIGNED
WITH THE ACTIVE PARTICIPATION OF THE CHILD, TO THE EXTENT POSSIBLE AND
CLINICALLY APPROPRIATE, AND THE PARENT OR GUARDIAN;
3. THE RIGHT TO BE FREE FROM PHYSICAL RESTRAINT AND SECLUSION, EXCEPT
AS OTHERWISE AUTHORIZED BY LAW OR REGULATION, PROVIDED, HOWEVER, NO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09054-03-9
A. 5439--A 2
MECHANICAL RESTRAINT OR SECLUSION MAY BE USED IF THE CHILD IS UNDER
TWELVE YEARS OF AGE;
4. THE RIGHT TO SAFE MEDICATION PRESCRIBING PRACTICES, INCLUDING THE
PROVISION OF INFORMATION ABOUT MEDICATIONS AND, SUBJECT TO THE
PROVISIONS OF SUBDIVISION (E) OF SECTION 33.21 OF THIS ARTICLE, CONSENT
FOR PSYCHOTROPIC MEDICATIONS FROM THE PARENT OR GUARDIAN;
5. THE RIGHT TO COMMUNICATE THROUGH LETTERS, PHONE CALLS AND VISITS
WITH PARENT OR PARENTS, OTHER FAMILY MEMBERS, GUARDIANS OR OTHER SIGNIF-
ICANT INDIVIDUALS, ABSENT LEGAL OR CLINICAL IMPEDIMENTS WHICH MUST BE
DOCUMENTED IN THE CASE RECORD OF SUCH CHILD;
6. THE RIGHT TO ACCESS MEANINGFUL RECREATIONAL ACTIVITIES AND COMMUNI-
TY PROGRAMS INCLUDING DAILY OUTDOOR OR EXERCISE ACTIVITIES UNLESS THERE
ARE LEGAL OR CLINICAL IMPEDIMENTS WHICH SHALL BE DOCUMENTED IN THE CASE
RECORD OF THE CHILD;
7. THE RIGHT TO EXPRESS GRIEVANCES, CONCERNS AND SUGGESTIONS AND TO
COMMUNICATE WITH THE MENTAL HYGIENE LEGAL SERVICE, COMMISSION ON QUALITY
OF CARE FOR THE MENTALLY DISABLED, AND THE PROTECTION AND ADVOCACY
PROGRAMS ADMINISTERED BY SUCH COMMISSION WITHOUT FEAR OF RETRIBUTION;
8. THE RIGHT TO PARTICIPATE IN RELIGIOUS ACTIVITIES; AND
9. THE RIGHT TO RECEIVE AN APPROPRIATE EDUCATION IN THE LEAST RESTRIC-
TIVE ENVIRONMENT.
(B) THE FOREGOING RIGHTS MAY NOT BE LIMITED AS A PUNISHMENT, FOR THE
CONVENIENCE OF STAFF, OR MADE CONTINGENT AS PART OF A TREATMENT PLAN.
THE COMMISSIONERS AND FACILITY DIRECTOR OR CHIEF ADMINISTRATIVE OFFICER
OF ANY SUCH RESIDENTIAL PROGRAM SHALL ENSURE THAT CHILDREN AND THEIR
PARENTS OR GUARDIANS ARE INFORMED OF SUCH RIGHTS.
S 2. The social services law is amended by adding a new section 462-c
to read as follows:
S 462-C. RIGHTS OF CHILDREN IN RESIDENTIAL CARE. 1. IN ORDER TO ENSURE
THAT CHILDREN PLACED IN RESIDENTIAL PROGRAMS OPERATED, LICENSED OR
CERTIFIED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES ARE ASSURED
APPROPRIATE CARE, THE COMMISSIONER OF SUCH OFFICE SHALL PROMULGATE RULES
AND REGULATIONS REGARDING THE RIGHTS OF SUCH CHILDREN IN RESIDENTIAL
CARE. SUCH REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO:
(A) THE RIGHT TO A SAFE, NURTURING ENVIRONMENT FREE FROM ABUSE AND
MISTREATMENT BY EMPLOYEES AND OTHER RESIDENTS OF THE FACILITY;
(B) THE RIGHT TO AN INDIVIDUALIZED PLAN OF TREATMENT SERVICES DESIGNED
WITH THE ACTIVE PARTICIPATION OF THE CHILD, TO THE EXTENT POSSIBLE AND
CLINICALLY APPROPRIATE, AND THE PARENT OR GUARDIAN;
(C) THE RIGHT TO BE FREE FROM PHYSICAL RESTRAINT AND SECLUSION, EXCEPT
AS OTHERWISE AUTHORIZED BY LAW OR REGULATION, PROVIDED, HOWEVER, NO
MECHANICAL RESTRAINT OR SECLUSION MAY BE USED IF THE CHILD IS UNDER
TWELVE YEARS OF AGE;
(D) THE RIGHT TO SAFE MEDICATION PRESCRIBING PRACTICES, INCLUDING THE
PROVISION OF INFORMATION ABOUT MEDICATIONS AND, SUBJECT TO THE
PROVISIONS OF SUBDIVISION (E) OF SECTION 33.21 OF THE MENTAL HYGIENE
LAW, CONSENT FOR PSYCHOTROPIC MEDICATIONS FROM THE PARENT OR GUARDIAN;
(E) THE RIGHT TO COMMUNICATE THROUGH LETTERS, PHONE CALLS AND VISITS
WITH PARENT OR PARENTS, OTHER FAMILY MEMBERS, GUARDIANS OR OTHER SIGNIF-
ICANT INDIVIDUALS, ABSENT LEGAL OR CLINICAL IMPEDIMENTS WHICH MUST BE
DOCUMENTED IN THE CASE RECORD OF SUCH CHILD;
(F) THE RIGHT TO ACCESS MEANINGFUL RECREATIONAL ACTIVITIES AND COMMU-
NITY PROGRAMS INCLUDING DAILY OUTDOOR OR EXERCISE ACTIVITIES UNLESS
THERE ARE LEGAL OR CLINICAL IMPEDIMENTS WHICH SHALL BE DOCUMENTED IN THE
CASE RECORD OF THE CHILD;
A. 5439--A 3
(G) THE RIGHT TO EXPRESS GRIEVANCES, CONCERNS AND SUGGESTIONS WITHOUT
FEAR OF RETRIBUTION;
(H) THE RIGHT TO PARTICIPATE IN RELIGIOUS ACTIVITIES; AND
(I) THE RIGHT TO RECEIVE AN APPROPRIATE EDUCATION IN THE LEAST
RESTRICTIVE ENVIRONMENT.
2. THE FOREGOING RIGHTS MAY NOT BE LIMITED AS A PUNISHMENT, FOR THE
CONVENIENCE OF STAFF, OR MADE CONTINGENT AS PART OF A TREATMENT PLAN.
THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES AND CHIEF
ADMINISTRATIVE OFFICER OF ANY SUCH RESIDENTIAL PROGRAM SHALL ENSURE THAT
CHILDREN AND THEIR PARENTS OR GUARDIANS ARE INFORMED OF SUCH RIGHTS.
S 3. The education law is amended by adding a new section 4411 to read
as follows:
S 4411. RIGHTS OF CHILDREN IN RESIDENTIAL CARE. 1. IN ORDER TO ENSURE
THAT CHILDREN PLACED IN RESIDENTIAL PROGRAMS OPERATED OR APPROVED BY THE
DEPARTMENT ARE ASSURED APPROPRIATE CARE, THE COMMISSIONER SHALL PROMUL-
GATE RULES AND REGULATIONS REGARDING THE RIGHTS OF SUCH CHILDREN IN
RESIDENTIAL CARE. SUCH REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO:
A. THE RIGHT TO A SAFE, NURTURING ENVIRONMENT FREE FROM ABUSE AND
MISTREATMENT BY EMPLOYEES AND OTHER RESIDENTS OF THE FACILITY;
B. THE RIGHT TO AN INDIVIDUALIZED EDUCATION PROGRAM DESIGNED WITH THE
ACTIVE PARTICIPATION OF THE CHILD, TO THE EXTENT POSSIBLE AND CLINICALLY
APPROPRIATE, AND THE PARENT OR GUARDIAN;
C. THE RIGHT TO BE FREE FROM PHYSICAL RESTRAINT AND SECLUSION, EXCEPT
AS OTHERWISE AUTHORIZED BY LAW OR REGULATION, PROVIDED, HOWEVER, NO
MECHANICAL RESTRAINT OR SECLUSION MAY BE USED IF THE CHILD IS UNDER
TWELVE YEARS OF AGE;
D. THE RIGHT TO SAFE MEDICATION PRESCRIBING PRACTICES, INCLUDING THE
PROVISION OF INFORMATION ABOUT MEDICATIONS AND, SUBJECT TO THE
PROVISIONS OF SUBDIVISION (E) OF SECTION 33.21 OF THE MENTAL HYGIENE
LAW, CONSENT FOR PSYCHOTROPIC MEDICATIONS FROM THE PARENT OR GUARDIAN;
E. THE RIGHT TO COMMUNICATE THROUGH LETTERS, PHONE CALLS AND VISITS
WITH PARENT OR PARENTS, OTHER FAMILY MEMBERS, GUARDIANS OR OTHER SIGNIF-
ICANT INDIVIDUALS, ABSENT LEGAL OR CLINICAL IMPEDIMENTS WHICH MUST BE
DOCUMENTED IN THE CASE RECORD OF SUCH CHILD;
F. THE RIGHT TO ACCESS MEANINGFUL RECREATIONAL ACTIVITIES AND COMMUNI-
TY PROGRAMS INCLUDING DAILY OUTDOOR OR EXERCISE ACTIVITIES UNLESS THERE
ARE LEGAL OR CLINICAL IMPEDIMENTS WHICH SHALL BE DOCUMENTED IN THE CASE
RECORD OF THE CHILD;
G. THE RIGHT TO EXPRESS GRIEVANCES, CONCERNS AND SUGGESTIONS WITHOUT
FEAR OF RETRIBUTION;
H. THE RIGHT TO PARTICIPATE IN RELIGIOUS ACTIVITIES; AND
I. THE RIGHT TO RECEIVE AN APPROPRIATE EDUCATION IN THE LEAST RESTRIC-
TIVE ENVIRONMENT.
2. THE FOREGOING RIGHTS MAY NOT BE LIMITED AS A PUNISHMENT, FOR THE
CONVENIENCE OF STAFF, OR MADE CONTINGENT AS PART OF AN INDIVIDUALIZED
EDUCATION PROGRAM. THE COMMISSIONER AND DIRECTOR OR CHIEF ADMINISTRATIVE
OFFICER OF ANY SUCH RESIDENTIAL PROGRAM SHALL ENSURE THAT CHILDREN AND
THEIR PARENTS OR GUARDIANS ARE INFORMED OF SUCH RIGHTS.
S 4. This act shall take effect January 1, 2010.