STATE OF NEW YORK
________________________________________________________________________
4998
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.
LBD10636-01-9
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.
