senate Bill S3077

2011-2012 Legislative Session

Relates to restraint of individuals in facilities under the jurisdiction of the office of mental health

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  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
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Jan 04, 2012 referred to mental health and developmental disabilities
Feb 08, 2011 referred to mental health and developmental disabilities

S3077 - Bill Details

Current Committee:
Senate Mental Health And Developmental Disabilities
Law Section:
Mental Hygiene Law
Laws Affected:
Amd §33.04, add §33.10, Ment Hyg L
Versions Introduced in 2009-2010 Legislative Session:
S3487, S3498

S3077 - Bill Texts

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Relates to restraint of individuals in facilities under the jurisdiction of the office of mental health.

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BILL NUMBER:S3077

TITLE OF BILL:

An act
to amend the mental hygiene law,
in relation to restraint of
individuals in facilities under the
jurisdiction of the office of mental
health

PURPOSE:

This bill would amend the Mental Hygiene Law (MHL) by establishing a
new Section 33.06 that would govern the use of restraint and
seclusion in facilities under the jurisdiction of the Office of
Mental Health (OMH). The bill would remove references to OMH
facilities from Mental Hygiene Law Section 33.04.

SUMMARY OF PROVISIONS:

Section 1 of the bill would remove mental health facilities under the
jurisdiction of OMH from the provisions of MHL . 33.04 and provides
that restraint in such facilities will be governed by MHL § 33.10

Section 2 of the bill would establish MHL § 33.10 to govern the use of
restraint and seclusion in mental health facilities under the
jurisdiction of OMH. Specifically, these provisions:

(1) clarify that restraint and seclusion are permitted behavioral
interventions in certain types of facilities governed by OMH, and
that unless specifically authorized, use of such interventions in
other facilities is not permitted;
(2) clarify that the term "restraint" includes manual restraint, drug
used as a restraint, or mechanical restraint, consistent with
applicable federal Centers for Medicare and Medicaid Services (CMS)
regulations, and defines such terms consistent with CMS regulations;
(3) describe conditions for use, which track provisions of MHL § 33.04
but update them to conform with CMS regulations applicable to mental
health treatment facilities;
(4) describe requirements for orders for restraint and seclusion,
consistent with recent guidance of CMS with respect to initiation of
restraint or seclusion when a physician is not immediately available,
and
(5) direct OMH to promulgate regulations to implement the
provisions of MHL § 33.06, as a means of ensuring continued
consistency with changes on the federal level.

Section 3 of the bill provides that it will be effective 60 days after
enactment.

EXISTING LAW:

MHL § 33.04 establishes procedures which must be followed in order to
restrain patients who are served in mental hygiene facilities. These
procedures were established to ensure the protection of the retrained


individual, while authorizing restraint when less restrictive
alternatives are not feasible.

Federal regulations at 42 C.F.R. part 482 were adopted in the July
2, 1999, Federal Register (p. 36070) and Final Interpretive
Guidelines were subsequently issued for these regulations on June 30,
2000. The regulations were further amended on December 8, 2006
(Federal Register, p. 71377 -71428). These regulations govern
restraint in all hospitals which receive federal Medicaid or Medicare
funding. This includes hospitals under the jurisdiction of OMH.

On October 17, 2000, the Children's Health Act of 2000 (P.L. 106-310)
was signed into law, which requires any facility receiving federal
funds to protect and promote the rights of its residents, and
specifies the circumstances in which restraint may be used.

Further, interim final regulations governing the use of restraint in
psychiatric residential treatment facilities providing psychiatric
services in persons under age 21 were published on January 22, 2001
(42 C.F.R. Parts 441 and 483).

LEGISLATIVE HISTORY:

2009/10: S.3487 - Died in Mental Health and Developmental Disabilities.
A similar proposal (S.7393) was introduced in 2008 in the Senate and
was not reported out of the Senate Mental Health and Developmental
Disabilities Committee.

STATEMENT IN SUPPORT:

Restraint is an emergency intervention that has historically been
utilized to control the behavior of persons with
mental illness in psychiatric facilities. However, this intervention
has come under intense scrutiny over the past ten years, due to the
significant physical and psychological risks associated with its use,
on the part of both patients and staff.

In June of 2000, the federal Centers for Medicare and Medicaid Services
(CMS), promulgated new regulations governing restraint (42 C.F.R. Part
482) for inpatient mental health facilities in New York, since most
of these facilities are hospitals which participate in the federal
Medicaid and Medicare programs. However, federal regulations at
42 C.F.R Part 483, which apply to the use of restraints and
behavioral interventions for Office of Mental Disabilities (OMRDD)
licensed or operated intermediate care facilities for the
developmentally disabled, were not changed.

Several months later, the Children's Health Act of 2000 (P.L. 106-310)
was signed into law. Among its provisions. are those which require
any facility receiving federal funds to protect and promote the
rights of its residents. The circumstances in which restraint may be
used are specified in this law. It requires each facility to which
the Protection and Advocacy for Mentally III Individuals Act of 1986
applies (i.e., OMH - licensed or operated facilities) to notify the
appropriate agency of each restraint-related death that occurs at the
facility, and requires the Secretary of the Health and Human Services
to impose certain requirements on such facilities, including training


of staff in the use of restraints and any alternatives to such use.
Subsequently, in January of 2001, CMS 'promulgated interim final
regulations governing restraint in non-hospital residential treatment
facilities (RTFs),- which serve patients with mental illness under
age 21, at 42 C.F.R. Parts 4.41 and 483.

In its recent White Paper, National Association of State Mental Health
Program Directors (NASMHPD) reports that "most States and providers
with laws, regulations, or policies governing the use of restraint
and seclusion have adopted an approach that mirrors the minimum
standards as provided in the Federal regulation." (Haimowitz, S.
and Urff, ]. Ending Harm from Restraint and Seclusion: the Evolving
Efforts, submitted for publication). While existing Mental Hygiene
Law conforms in some ways to the federal law and regulations that
govern mental health providers, in several ways it is critically
incongruent with the federal requirements governing mental health
providers.

Specifically, under the federal CMS regulations for hospitals and
non-hospital RTFs, the term "restraint" includes a drug used as a
restraint and manual and mechanical restraint. Under MHL § 33.04,
which applies to both OMB and OMRDD operated or licensed facilities,
the term is much more narrowly defined as the "use of an apparatus,"
i.e., mechanical restraint. This has caused confusion for mental
health providers struggling to comply with disparate requirements
and, in some cases, has resulted in facilities being cited by CMS
upon audit for not having policies that accurately reflect federal
regulations. Moreover, there is a serious concern that one or more
providers of services to mentally ill persons used the limited
definition of "restraint" in Mental Hygiene Law Section 33.04 (which
references an "apparatus") to justify illegal physical restraint
(through the use of manual holds) of residents. Use of these
dangerous manual restraints constitute patient abuse.

Currently, both facilities for persons with mental illness and mental
retardation and developmental disabilities are uniformly subject to
standards established in MHL § 33.04. Removing mental health
facilities from the purview of this statute would appear inconsistent
with the goal of having common standards with respect to restraint in
OMH and OMRDD settings, which has been an issue in the past with
respect to co-located facilities. However, because this statute is so
outdated with respect to mental health facilities, the practices are
already disparate as a matter of necessity. Because the federal
regulations governing OMH and OMRDD providers are different, MHL
33.04 fails to accurately reflect the differences in treatment
modalities, including restraint and behavioral intervention
techniques used for the different OMH and OMRDD populations.

For example, the use of seclusion or certain drugs in the OMRDD system
to restrain or control an individual's behavior may be considered
inappropriate or abusive, while such use in OMH's system may be
clinically appropriate and permissible under federal regulations
governing "drug used as a restraint" in mental health hospitals.
Therefore, unless and until federal regulations are reconciled, it is
not only confusing to providers, but it is also not in the best
interest of mental health consumers to continue to ignore the
incongruity between federal standards and MHL § 33.04. The federal


standards reflect a more current, evidence-based practice approach to
the use of restraint and seclusion in facilities serving persons with
mental illness.

BUDGET IMPLICATIONS:

This proposal has no fiscal implications.

EFFECTIVE DATE:

This proposal would take effect 60 days after enactment.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3077

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 8, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the mental hygiene law,  in  relation  to  restraint  of
  individuals  in  facilities  under  the  jurisdiction of the office of
  mental health

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (a) of section 33.04 of the mental hygiene law,
as  added  by chapter 779 of the laws of 1977 and such section as renum-
bered by chapter 334 of the law of 1980, is amended to read as follows:
  (a) As used in this section, "restraint" means the use of an apparatus
on a patient which prevents the free movement of both arms or both  legs
or  which  totally  immobilizes  such  patient, and which the patient is
unable to remove easily, PROVIDED, HOWEVER, THAT RESTRAINT IN FACILITIES
LICENSED OR OPERATED BY THE OFFICE OF MENTAL HEALTH SHALL BE  AUTHORIZED
AND  IMPLEMENTED IN ACCORDANCE WITH SECTION 33.06 OF THIS ARTICLE, WHICH
SHALL FULLY SUPERSEDE THE PROVISIONS OF THIS  SECTION  WITH  RESPECT  TO
SUCH FACILITIES.
  S  2.  The mental hygiene law is amended by adding a new section 33.10
to read as follows:
S 33.10 RESTRAINT AND SECLUSION IN FACILITIES LICENSED  OR  OPERATED  BY
          THE OFFICE OF MENTAL HEALTH.
  (A)  APPLICABILITY. THIS SECTION SHALL APPLY TO HOSPITALS AND RESIDEN-
TIAL TREATMENT FACILITIES FOR CHILDREN AND  YOUTH,  AS  BOTH  TERMS  ARE
DEFINED IN SECTION 1.03 OF THIS CHAPTER, AND SECURE TREATMENT FACILITIES
AS DEFINED IN SECTION 10.03 OF THIS CHAPTER, THAT ARE CERTIFIED OR OPER-
ATED  BY  THE OFFICE OF MENTAL HEALTH. UNLESS SPECIFICALLY AUTHORIZED IN
REGULATIONS ESTABLISHING ANY OTHER  PROGRAM  CATEGORY  GOVERNED  BY  THE
OFFICE  OF  MENTAL  HEALTH,  THE  USE  OF  RESTRAINT OR SECLUSION IS NOT
PERMITTED.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08709-01-1

S. 3077                             2

  (B) DEFINITIONS. FOR PURPOSES OF THIS SECTION:
  (1)  "DRUG  USED AS A RESTRAINT" MEANS THE USE OF A DRUG OR MEDICATION
AS A RESTRICTION TO MANAGE A  PATIENT'S  BEHAVIOR  OR  RESTRICT  HIS/HER
FREEDOM  OF MOVEMENT, THAT IS NOT A STANDARD TREATMENT OR DOSAGE FOR THE
PATIENT'S MEDICAL OR PSYCHIATRIC CONDITION, PROVIDED, HOWEVER, THAT  THE
USE OF MEDICATION TO COMPLETELY IMMOBILIZE A PATIENT IS PROHIBITED.
  (2) "MECHANICAL RESTRAINT" MEANS AN APPARATUS WHICH RESTRICTS AN INDI-
VIDUAL'S  MOVEMENT  OF THE HEAD, LIMBS OR BODY, AND WHICH THE INDIVIDUAL
IS UNABLE TO REMOVE.
  (3) "MANUAL RESTRAINT" MEANS A PHYSICAL  METHOD  USED  TO  RESTRICT  A
PERSON'S FREEDOM OF MOVEMENT OR NORMAL ACCESS TO HIS OR HER BODY.
  (4) "RESTRAINT" MEANS A PHYSICAL, PHARMACOLOGICAL, OR MECHANICAL MEAS-
URE  WHICH  RESTRICTS  AN INDIVIDUAL'S ABILITY TO FREELY MOVE HIS OR HER
HEAD, LIMBS, OR BODY, AND MEANS AND INCLUDES MECHANICAL RESTRAINT, MANU-
AL RESTRAINT, AND DRUG USED AS A RESTRAINT.
  (5) "SECLUSION" MEANS THE INVOLUNTARY PLACEMENT OF AN INDIVIDUAL ALONE
IN A ROOM OR AREA FROM WHICH HE OR  SHE  IS  PHYSICALLY  PREVENTED  FROM
LEAVING, OR FROM WHICH HE OR SHE REASONABLY BELIEVES THAT HE OR SHE WILL
BE PREVENTED FROM LEAVING, PROVIDED, HOWEVER, IT SHALL NOT MEAN LOCKING,
SECURING,  OR  OTHERWISE  RESTRICTING A PERSON IN HIS OR HER ROOM DURING
OVERNIGHT SLEEPING  HOURS,  WHEN  SUCH  PERSON  IS  HELD,  COMMITTED  OR
CONFINED  IN A SECURE TREATMENT FACILITY, AS DEFINED IN SECTION 10.03 OF
THIS CHAPTER.
  (C) CONDITIONS FOR USE. RESTRAINT AND SECLUSION ARE  EMERGENCY  SAFETY
INTERVENTIONS  THAT  SHALL  BE  USED  ONLY  WHEN  NECESSARY TO PREVENT A
PATIENT FROM SERIOUSLY INJURING SELF  OR  OTHERS  AND  LESS  RESTRICTIVE
TECHNIQUES HAVE BEEN DETERMINED TO BE INEFFECTIVE.
  (1) RESTRAINT OR SECLUSION SHALL NOT BE USED BY STAFF FOR THE PURPOSES
OF  DISCIPLINE,  RETALIATION, OR COERCION, FOR THE CONVENIENCE OF STAFF,
TO SUBSTITUTE FOR INADEQUATE STAFFING, OR AS A SUBSTITUTE FOR  TREATMENT
PROGRAMS.
  (2) RESTRAINT SHALL BE PERFORMED IN ACCORDANCE WITH SAFE AND APPROPRI-
ATE RESTRAINING TECHNIQUES DETERMINED BY THE COMMISSIONER TO BE CONSIST-
ENT WITH EVIDENCE BASED PRACTICES. THE ONLY PERMISSIBLE FORMS OF MECHAN-
ICAL  RESTRAINT SHALL BE THOSE DEVICES WHICH HAVE BEEN AUTHORIZED BY THE
COMMISSIONER.
  (D) ORDERS FOR RESTRAINT OR SECLUSION. RESTRAINT OR SECLUSION SHALL BE
EFFECTED ONLY BY WRITTEN ORDER OF A PHYSICIAN, BASED ON THE RESULTS OF A
FACE-TO-FACE EXAMINATION OF THE PATIENT BY THE PHYSICIAN, AND  SHALL  BE
LIMITED  IN DURATION IN ACCORDANCE WITH REGULATIONS OF THE COMMISSIONER,
PROVIDED, HOWEVER, THAT IN NO EVENT MAY AN ORDER FOR RESTRAINT OR SECLU-
SION EXCEED TWO HOURS.
  (E) INITIATION IN ABSENCE OF PHYSICIAN. RESTRAINT OR SECLUSION MAY  BE
INITIATED  IN  THE  ABSENCE OF A PHYSICIAN'S WRITTEN ORDER ONLY IN SITU-
ATIONS WHERE THE PATIENT PRESENTS AN IMMEDIATE DANGER TO SELF OR  OTHERS
AND  A  PHYSICIAN  IS  NOT IMMEDIATELY AVAILABLE TO EXAMINE THE PATIENT,
PROVIDED, HOWEVER, THAT THE RESTRAINT OR SECLUSION MUST BE INITIATED  AT
THE  DIRECTION  OF A REGISTERED PROFESSIONAL NURSE OR NURSE PRACTITIONER
LICENSED PURSUANT TO ARTICLE ONE HUNDRED THIRTY-NINE  OF  THE  EDUCATION
LAW  OR,  IN  THE  ABSENCE OF SUCH NURSE, AT THE DIRECTION OF THE SENIOR
STAFF MEMBER OF THE STAFF WHO ARE PRESENT.
  (1) THE NURSE OR SENIOR STAFF MEMBER SHALL CAUSE  A  PHYSICIAN  TO  BE
IMMEDIATELY  SUMMONED; IF THE PHYSICIAN CANNOT REASONABLY ARRIVE ON SITE
WITHIN TEN MINUTES TO ASSESS THE PATIENT AND WRITE AN ORDER, HE  OR  SHE
MAY ISSUE A TELEPHONE ORDER TO INITIATE THE RESTRAINT OR SECLUSION;

S. 3077                             3

  (2)  THE  NURSE  OR  SENIOR  STAFF  MEMBER SHALL NOTE IN THE PATIENT'S
RECORD THE TIME OF THE CALL, THE NAME OF THE PERSON MAKING THE CALL, THE
NAME OF THE PHYSICIAN CONTACTED WHO GAVE THE TELEPHONE  ORDER,  AND  THE
NAME OF THE PERSON WHO INITIATED THE RESTRAINT OR SECLUSION;
  (3)  PENDING  THE  ARRIVAL OF THE PHYSICIAN, THE PATIENT SHALL BE KEPT
UNDER CONSTANT SUPERVISION;
  (4) IF THE PHYSICIAN DOES NOT ARRIVE WITHIN THIRTY  MINUTES  OF  BEING
SUMMONED,  THE  NURSE OR SENIOR STAFF MEMBER SHALL RECORD ANY SUCH DELAY
IN THE PATIENT'S CLINICAL RECORD AND ALSO PLACE INTO THE PATIENT'S CLIN-
ICAL RECORD A WRITTEN DESCRIPTION OF THE FACTS JUSTIFYING THE  EMERGENCY
INTERVENTION, WHICH SHALL SPECIFY THE NATURE OF THE INTERVENTION AND ANY
CONDITIONS  FOR  MAINTAINING  IT UNTIL THE ARRIVAL OF THE PHYSICIAN, THE
REASONS WHY LESS RESTRICTIVE FORMS OF RESTRAINT OR  SECLUSION  WERE  NOT
USED,  AND  A  DESCRIPTION  OF  THE  STEPS TAKEN TO ENSURE THE PATIENT'S
COMFORT AND SAFETY;
  (5)  UPON  ARRIVAL,  SUCH  PHYSICIAN  MUST   IMMEDIATELY   CONDUCT   A
FACE-TO-FACE  EXAMINATION  OF THE PATIENT, IN ACCORDANCE WITH APPLICABLE
FEDERAL AND STATE REGULATIONS, AND AUTHENTICATE THE TELEPHONE  ORDER  IN
WRITING; AND
  (6)  THE  PHYSICIAN  SHALL PLACE IN THE CLINICAL RECORD AN EXPLANATION
FOR ANY SUCH DELAY, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE  DELAY
EXTEND BEYOND ONE HOUR AFTER THE INITIATION OF THE INTERVENTION.
  (F) DURING THE TIME THAT A PATIENT IS IN RESTRAINT OR SECLUSION, HE OR
SHE  SHALL  BE MONITORED TO SEE THAT HIS OR HER PHYSICAL NEEDS, COMFORT,
AND SAFETY ARE PROPERLY CARED FOR.
  (1) AN ASSESSMENT OF THE PATIENT'S CONDITION SHALL BE  MADE  AT  LEAST
ONCE EVERY THIRTY MINUTES OR AT MORE FREQUENT INTERVALS AS DIRECTED BY A
PHYSICIAN.  THE ASSESSMENT SHALL BE RECORDED AND PLACED IN THE PATIENT'S
FILE.
  (2) A PATIENT SHALL BE RELEASED FROM RESTRAINT OR SECLUSION AS SOON AS
HE OR SHE NO LONGER PRESENTS AN IMMINENT  RISK  OF  DANGER  TO  SELF  OR
OTHERS. UNLESS A NURSE, DOCTOR, OR SENIOR STAFF MEMBER DETERMINES THAT A
PATIENT IS OBVIOUSLY DANGEROUS, AN ATTEMPT SHOULD BE MADE TO RELEASE THE
PATIENT EVERY THIRTY MINUTES.
  (G)  REGULATIONS.  THE  COMMISSIONER  SHALL  PROMULGATE REGULATIONS TO
IMPLEMENT THE PROVISIONS OF THIS SECTION.
  S 3. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

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