Relates to restraint of individuals in facilities under the jurisdiction of the office of mental health.
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
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.
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).
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.
This proposal has no fiscal implications.
This proposal would take effect 60 days after enactment.
STATE OF NEW YORK ________________________________________________________________________ 3077 2011-2012 Regular Sessions IN SENATE 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.