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

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.