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S04998 Summary:

Amd §33.04, add §33.10, Ment Hyg L
Relates to restraint of individuals in facilities under the jurisdiction of the office of mental health.
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S04998 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                      April 3, 2019
        Introduced  by  Sen.  PARKER -- 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:
     1    Section 1. Subdivision (a) of section 33.04 of the mental hygiene law,
     2  as  added  by chapter 779 of the laws of 1977 and such section as renum-
     3  bered by chapter 334 of the laws of 1980, is amended to read as follows:
     4    (a) As used in this section, "restraint" means the use of an apparatus
     5  on a patient which prevents the free movement of both arms or both  legs
     6  or  which  totally  immobilizes  such  patient, and which the patient is
     7  unable to remove easily, provided, however, that restraint in facilities
     8  licensed or operated by the office of mental health shall be  authorized
     9  and  implemented in accordance with section 33.10 of this article, which
    10  shall fully supersede the provisions of this  section  with  respect  to
    11  such facilities.
    12    §  2.  The mental hygiene law is amended by adding a new section 33.10
    13  to read as follows:
    14  § 33.10 Restraint and seclusion in facilities licensed  or  operated  by
    15            the office of mental health.
    16    (a)  Applicability. This section shall apply to hospitals and residen-
    17  tial treatment facilities for children and  youth,  as  both  terms  are
    18  defined in section 1.03 of this chapter, and secure treatment facilities
    19  as defined in section 10.03 of this chapter, that are certified or oper-
    20  ated  by  the office of mental health. Unless specifically authorized in
    21  regulations establishing any other  program  category  governed  by  the
    22  office  of  mental  health,  the  use  of  restraint or seclusion is not
    23  permitted.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4998                             2
     1    (b) Definitions. For purposes of this section:
     2    (1)  "Drug  used as a restraint" means the use of a drug or medication
     3  as a restriction to manage a  patient's  behavior  or  restrict  his/her
     4  freedom  of movement, that is not a standard treatment or dosage for the
     5  patient's medical or psychiatric condition, provided, however, that  the
     6  use of medication to completely immobilize a patient is prohibited.
     7    (2) "Mechanical restraint" means an apparatus which restricts an indi-
     8  vidual's  movement  of the head, limbs or body, and which the individual
     9  is unable to remove. 
    10    (3) "Manual restraint" means a physical  method  used  to  restrict  a
    11  person's freedom of movement or normal access to his or her body.
    12    (4) "Restraint" means a physical, pharmacological, or mechanical meas-
    13  ure  which  restricts  an individual's ability to freely move his or her
    14  head, limbs, or body, and means and includes mechanical restraint, manu-
    15  al restraint, and drug used as a restraint.
    16    (5) "Seclusion" means the involuntary placement of an individual alone
    17  in a room or area from which he or  she  is  physically  prevented  from
    18  leaving, or from which he or she reasonably believes that he or she will
    19  be prevented from leaving, provided, however, it shall not mean locking,
    20  securing,  or  otherwise  restricting a person in his or her room during
    21  overnight sleeping  hours,  when  such  person  is  held,  committed  or
    22  confined  in a secure treatment facility, as defined in section 10.03 of
    23  this chapter.
    24    (c) Conditions for use. Restraint and seclusion are  emergency  safety
    25  interventions  that  shall  be  used  only  when  necessary to prevent a
    26  patient from seriously injuring self  or  others  and  less  restrictive
    27  techniques have been determined to be ineffective.
    28    (1) Restraint or seclusion shall not be used by staff for the purposes
    29  of  discipline,  retaliation, or coercion, for the convenience of staff,
    30  to substitute for inadequate staffing, or as a substitute for  treatment
    31  programs.
    32    (2) Restraint shall be performed in accordance with safe and appropri-
    33  ate restraining techniques determined by the commissioner to be consist-
    34  ent with evidence based practices. The only permissible forms of mechan-
    35  ical  restraint shall be those devices which have been authorized by the
    36  commissioner.
    37    (d) Orders for restraint or seclusion. Restraint or seclusion shall be
    38  effected only by written order of a physician, based on the results of a
    39  face-to-face examination of the patient by the physician, and  shall  be
    40  limited  in duration in accordance with regulations of the commissioner,
    41  provided, however, that in no event may an order for restraint or seclu-
    42  sion exceed two hours.
    43    (e) Initiation in absence of physician. Restraint or seclusion may  be
    44  initiated  in  the  absence of a physician's written order only in situ-
    45  ations where the patient presents an immediate danger to self or  others
    46  and  a  physician  is  not immediately available to examine the patient,
    47  provided, however, that the restraint or seclusion must be initiated  at
    48  the  direction  of a registered professional nurse or nurse practitioner
    49  licensed pursuant to article one hundred thirty-nine  of  the  education
    50  law  or,  in  the  absence of such nurse, at the direction of the senior
    51  staff member of the staff who are present.
    52    (1) the nurse or senior staff member shall cause  a  physician  to  be
    53  immediately  summoned; if the physician cannot reasonably arrive on site
    54  within ten minutes to assess the patient and write an order, he  or  she
    55  may issue a telephone order to initiate the restraint or seclusion;

        S. 4998                             3
     1    (2)  the  nurse  or  senior  staff  member shall note in the patient's
     2  record the time of the call, the name of the person making the call, the
     3  name of the physician contacted who gave the telephone  order,  and  the
     4  name of the person who initiated the restraint or seclusion;
     5    (3)  pending  the  arrival of the physician, the patient shall be kept
     6  under constant supervision;
     7    (4) if the physician does not arrive within thirty  minutes  of  being
     8  summoned,  the  nurse or senior staff member shall record any such delay
     9  in the patient's clinical record and also place into the patient's clin-
    10  ical record a written description of the facts justifying the  emergency
    11  intervention, which shall specify the nature of the intervention and any
    12  conditions  for  maintaining  it until the arrival of the physician, the
    13  reasons why less restrictive forms of restraint or  seclusion  were  not
    14  used,  and  a  description  of  the  steps taken to ensure the patient's
    15  comfort and safety;
    16    (5) upon arrival, such physician must immediately conduct  a  face-to-
    17  face  examination  of the patient, in accordance with applicable federal
    18  and state regulations, and authenticate the telephone order in  writing;
    19  and
    20    (6)  the  physician  shall place in the clinical record an explanation
    21  for any such delay, provided, however, that in no event shall the  delay
    22  extend beyond one hour after the initiation of the intervention.
    23    (f) During the time that a patient is in restraint or seclusion, he or
    24  she  shall  be monitored to see that his or her physical needs, comfort,
    25  and safety are properly cared for.
    26    (1) An assessment of the patient's condition shall be  made  at  least
    27  once every thirty minutes or at more frequent intervals as directed by a
    28  physician.  The assessment shall be recorded and placed in the patient's
    29  file.
    30    (2) A patient shall be released from restraint or seclusion as soon as
    31  he or she no longer presents an imminent  risk  of  danger  to  self  or
    32  others. Unless a nurse, doctor, or senior staff member determines that a
    33  patient is obviously dangerous, an attempt should be made to release the
    34  patient every thirty minutes.
    35    (g)  Regulations.  The  commissioner  shall  promulgate regulations to
    36  implement the provisions of this section.
    37    § 3. This act shall take effect on the sixtieth  day  after  it  shall
    38  have become a law.
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