BILL NUMBER: S4998

SPONSOR: PARKER
 
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 33.10 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 jurisdic-
tion of OMH. Specifically, these provisions:

(1) clarify that restraint and seclusion are permitted behavioral inter-
ventions 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 alterna-
tives 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 regu-
lations 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:

2017-18: s3463 - REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILI-
TIES
2015-16: S.1756 - Referred to Mental Health and developmental Disabili-
ties
2013-14: 5.851 - 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 Disabili-
ties 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 phys-
ical 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 interme-
diate 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 seclu-
sion 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 strug-
gling 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 phys-
ical 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 behav-
ioral intervention techniques used for the different OMH and OMRDD popu-
lations.

For example, the use of seclusion or certain drugs in the OMRDD system
to restrain or control an individual's behavior may be considered inap-
propriate or abusive, while such use in OMB'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 stand-
ards 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.