Senate Bill S1756

                                BILL NUMBER:S1756

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 rest:raint
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 rest:raint 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:  2013-14: S.851 -Died in Mental Health 2011-12:
S.3077- Died in Mental Health 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 provider's, 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 provider's, 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.