BILL NUMBER:  S3487

 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 § 33.06

Section 2 of the bill would establish MHL § 33.06 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 :

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.