N.Y. Comp. Codes R. & Regs. tit. 14 § 526.4

Current through Register Vol. 46, No. 43, October 23, 2024

Section 526.4 - Restraint and seclusion

(a)Definitions.

For purposes of this section, the following terms are defined:

(1)Behavior management plan means a document that identifies a patient's individual preferences and behaviors related to behavioral management interventions, (e.g., an individual calming plan, an individual crisis prevention plan, or a personal safety plan).

(2)Commissioner means the Commissioner of Mental Health.

(3)Drug used as a restraint means a drug or medication when it is used as a restriction to manage the patient's behavior or restrict the patient's freedom of movement and is not a standard treatment or dosage for a patient's medical or psychiatric condition, or as otherwise defined in Federal regulations of the Centers for Medicare and Medicaid Services.

(4)Emergency means a situation in which a patient's behavior creates an imminent threat of serious injury to the patient or another person, where there is the present ability to effect such harm. For purposes of this section, a threat to property shall not be considered an emergency.

(5)Facility means a hospital as defined in section 1.03 of the Mental Hygiene Law, and shall include the hospital sub-class of residential treatment facilities for children and youth, as defined in such section.

(6)Manual restraint means the use of a manual or physical method to restrict a person's freedom of movement or normal access to his or her body. The term manual restraint means and includes the term physical restraint.

(7)Mechanical restraint means an apparatus which restricts a patient's movement of the head, limbs, or body, and which the patient is unable to remove, provided, however, this term may also apply to an apparatus not normally used for this purpose, such as a bed rail or bed sheet, if the patient is not able to release the mechanism.

(8)Mechanical support means a device intended to keep the person in a safe or comfortable position, which the patient can remove at will, or to provide the stability necessary for therapeutic and preventive measures such as immobilization of fractures, administration of intravenous solutions or other medically necessary procedures.

(9)Nurse means a registered professional nurse employed by, or rendering services in, a facility certified by the Office of Mental Health, who is currently licensed pursuant to article 139 of the Education Law.

(10)Office means the New York State Office of Mental Health.

(11)Physical escort means the use of a light grasp to escort a patient to a desired location, which the patient can easily remove or avoid.

(12)Restraint means any manual method, mechanical device, or pharmacologic measure which immobilizes or reduces the ability of an individual to freely move his or her arms, legs, body, or head. For purposes of this Part, restraint means and includes manual restraint, drug used as a restraint, and mechanical restraint.

(13)Seclusion means the involuntary confinement of a patient in a room or area where the patient is prevented from leaving (or where the patient reasonably believes that he or she will be prevented from leaving), with no ability to meaningfully interact with other patients or staff, provided, however, it shall not mean confinement on a locked unit or ward where a patient is with others.

(14)Time out means a voluntary procedure used to assist a patient in regaining emotional control by providing access to a quiet area or unlocked quiet room away from his/her immediate environment.

(b)General principles.

(1) Purpose of intervention.

(i) Management of violent or self-destructive behavior. Restraint and seclusion are safety interventions which may be used for purposes of managing violent or self-destructive behavior only in emergency situations if such intervention is necessary to avoid imminent, serious injury to the patient or others, and less restrictive interventions have been utilized and determined to be ineffective, or in rare instances where the patient's dangerousness is of such immediacy that less restrictive interventions cannot be safely employed. Such restraint or seclusion shall only be used for the duration of the emergency.

(ii) Medical or post-surgical care. To ensure good medical outcomes, a mechanical restraint may be used to limit mobility or temporarily immobilize a patient in relation to a medical, post-surgical, or dental procedure.

(2) Restraint or seclusion for any purpose shall never be utilized as punishment, for the convenience of staff, to substitute for inadequate staffing, or as a substitute for treatment programs.

(3) In choosing the form of intervention for any purpose, staff shall utilize the least restrictive type which is appropriate and effective under the circumstances.

(4) A restraint does not include mechanical supports, physical escort, or the physical holding of a patient for the purpose of conducting routine physical examinations or tests (to which he or she does not object).

(5) Seclusion shall not be used with persons with a sole diagnosis of a developmental disability. Seclusion may be used for persons with a dual diagnosis of mental illness and a developmental disability, provided that such persons are under one-to-one constant visual observation while in seclusion, and all other provisions of this section governing the utilization of seclusion are met.

(c)Restraint and seclusion to manage violent or self-destructive behavior.

(1) General conditions for use.

(i) The use of restraint and seclusion to manage violent or self-destructive behavior in a facility must be in accordance with the written order of a physician and selected only when:

(a) less restrictive measures (including any such interventions that have been identified in a patient's behavior management plan), have been utilized and found to be ineffective to protect the patient from seriously injuring self or others; or

(b) in rare instances where the patient's dangerousness is of such immediacy that less restrictive interventions cannot be safely employed.

(ii) Utilization of seclusion or restraint to manage violent or self-destructive behavior shall not be based solely on a patient's seclusion or restraint history or on a history of dangerous behavior.

(iii) Mechanical restraint. The only permissible forms of mechanical restraint shall be those devices which have been authorized by the commissioner.

(2) Simultaneous use. A mechanical restraint and seclusion shall not be used simultaneously.

(3) Limitations. The following restraint techniques shall not be utilized in any facility subject to the provisions of this Part:

(i) any technique that obstructs a patient's respiratory airway or impairs his or her breathing or respiratory capacity, including techniques in which a staff member places pressure on a patient's back or places his or her body weight against the patient's torso or back;

(ii) a technique that utilizes a pillow, blanket, or other item to cover the patient's face;

(iii) use of any technique on a patient who has a known medical or physical condition where there is reason to believe that use of such technique would endanger the person's life or significantly exacerbate the person's medical condition; or

(iv) restraint in a prone (face down) position.

(4) Patient behavior management history assessment. A facility shall conduct an initial patient behavior management history assessment of each patient upon admission to the facility, or as soon thereafter as possible, based upon readily available or obtainable information, and shall develop a behavior management plan.

(5) Orders for the use of restraint or seclusion.

(i) General. Orders for the use of restraint or seclusion:

(a) must be in writing and signed by a physician;

(b) must be based on a personal, face-to-face examination by the physician which includes both a physical and psychological examination of the patient;

(c) must be implemented in the least restrictive manner possible, such that the risks associated with the use of the restraint and/or seclusion are outweighed by the risk of not using it, including consideration of alternative interventions;

(d) must be implemented in accordance with safe, appropriate restraining techniques, as approved by the office;

(e) must be ended at the earliest possible time; and

(f) shall never be written as a standing order or on an as-needed basis (PRN order).

(ii) Duration. Each written order for restraint or seclusion shall be no more than: 4 hours for adults; 1 hour for children and adolescents ages 9 to 17; and 30 minutes for children under 9; provided, however:

(a) with respect to manual restraint, orders must be limited in duration to 30 minutes for patients of any age, provided, however, the use of manual restraint must be limited to the duration of the emergency situation, regardless of the length of the order; and

(b) if an episode of mechanical restraint or seclusion has exceeded 2 hours for adults, 1 hour for children and adolescents ages 9 to 17, or 30 minutes for children under age 9, and it is expected that restraint or seclusion will be required beyond such time periods, the facility medical director or director of psychiatry (or his/her designee) shall be notified and consulted.

(iii) Justification. Each written order for restraint and seclusion must include documentation supporting its reasons for issuance.

(iv) Renewals. If restraints or seclusion are discontinued prior to the expiration of the original order, a new order must be obtained prior to reinitiating seclusion or reapplying the restraints; and, provided further, after the original order expires, a physician must see and assess the patient, in person, before issuing a new order.

(6) Initiation in the absence of a physician.

(i) Restraint or seclusion may be initiated in the absence of a physician's written order only in situations where the patient presents an immediate danger to self or others and a physician is not immediately available to examine the patient, provided, however, that the restraint or seclusion must be initiated at the direction of a registered professional nurse, nurse practitioner, or physician's assistant who has been authorized by the facility, based on credentials and competencies, to approve the use of restraint or seclusion in the absence of a physician or, in the absence of the nurse, nurse practitioner, or physician's assistant, at the direction of the senior staff member authorized in facility policy to initiate restraint or seclusion in the event of such absence. A written order by a physician must still be obtained to authorize the intervention, in accordance with the procedures set forth in Mental Hygiene Law section 33.04.

(ii) The facility must establish written procedures for initiation of restraint or seclusion in the absence of a physician, which must be in conformance with applicable Federal regulations and Mental Hygiene Law section 33.04.

(7) Assessment and monitoring. The condition of the patient who is in a restraint or in seclusion must continuously be assessed and monitored by trained and competent staff to ensure his or her physical safety and condition.

(i) An assessment of the patient's condition shall be made at least once every 30 minutes (or at more frequent intervals if directed by the physician), by a registered professional nurse, nurse practitioner, or physician assistant responsible for the care of the patient.

(ii) Restraint or seclusion must be reevaluated and ended at the earliest possible time, based on the assessment and reevaluation of the patient's condition by trained and competent staff. Assessment and monitoring activities shall be detailed in facility policies and procedures.

(8) Release. A patient shall be released from restraint or seclusion as soon as such restraint or seclusion is no longer needed to prevent the continuation or renewal of an emergency and, in no event, later than the achievement of the early release criteria or the expiration of an original order for such restraint or seclusion, unless such order is renewed with a new order. Upon release from restraint or seclusion, a registered nurse shall observe, evaluate, and document the patient's physical and psychological condition. At no time shall the patient be kept in restraint or seclusion without a written order by a physician for a period exceeding one hour.

(9) Documentation. Documentation of episodes of restraint and/or seclusion shall include:

(i) a description of the patient's behavior and the intervention used;

(ii) the rationale for the use of restraint and/or seclusion;

(iii) the failure of less restrictive interventions, including those outlined in the patient's behavior management plan; and

(iv) the patient's response to the use of restraint and/or seclusion.

(10) Post event analysis and debriefing activities. A facility shall ensure that post event analysis and debriefing activities, occur after each episode of restraint or seclusion in order to determine what led to the incident, what might have been prevented or curtailed it, and how to prevent future episodes.

(i) Post event analysis and debriefing procedures must be identified in facility policies developed in accordance with paragraph (12) of this subdivision.

(ii) Facilities must ensure that all post event analyses and debriefings occur consistent with applicable regulations of the Center for Medicare and Medicaid Services and accrediting body standards.

(11) Education and training. Education and training.

(i) All staff who have direct patient contact must have ongoing education and training, and must demonstrate competence in the techniques and alternative methods for handling behavior, symptoms, and situations that traditionally have been treated through the use of restraints or seclusion, and in the proper and safe use of seclusion and restraint application.

(ii) Providers subject to this section must utilize training and education programs that have been approved by the office for this purpose. The office shall ensure that current information identifying approved training and education is readily available to providers who must comply with this section.

(12) Policies and procedures. Facilities operated or licensed by the office which are authorized to utilize restraint or seclusion to manage violent or self-destructive behavior shall have policies which clearly articulate restraint reduction as an organizational value, set forth the organization's intent to advance positive behavior management and restraint reduction efforts, and specify the conditions under which restraint and seclusion shall be used, and the procedures for the initiation of such use to manage violent behavior that places the patient or others in danger.

(13) Reporting.

(i) The use of restraint and/or seclusion shall be reported to the office as, and in a format, specified by the office, including, but not limited to:

(a) rate of restraint or seclusion use;

(b) total hours of restraint and seclusion use as a proportion of total inpatient hours; and

(c) client and staff injury rates related to restraint or seclusion; and

(ii) In addition to any other applicable reporting requirements set forth in Federal or State law, any death that occurs while a patient is restrained or in seclusion for behavioral management purposes, or where it is reasonable to assume that a patient's death is a result of such restraint or seclusion, or as otherwise set forth in applicable Federal regulations, shall be reported to the Federal Centers for Medicare and Medicaid Services.

(14) Special program requirements. Consistent with the definitions established in subdivision (a) of this section, and subject to more stringent Federal regulations of the Centers for Medicare and Medicaid Services:

(i) State operated psychiatric centers. Restraint or seclusion in State operated psychiatric centers shall be utilized in accordance with Mental Hygiene Law section 33.04 and official policies of the office. Nothing in this section shall preclude the application of security measures during transportation of patients who are committed to a facility pursuant to an order of a criminal court or who have been admitted to a facility in accordance with article 10 of the Mental Hygiene Law.

(ii) Hospitals and inpatient facilities. Restraint or seclusion in hospitals governed by Part 582 of this Title, and psychiatric inpatient units of general hospitals governed by Part 580 of this Title, shall be utilized in accordance with Mental Hygiene Law section 33.04 and the provisions of this section, and 42 CFR section 482.13.

(iii) Residential treatment programs for children and youth. Restraint in inpatient psychiatric facilities governed by Part 584 of this Title shall be utilized in accordance with Mental Hygiene Law section 33.04 and the provisions of this section, 42 CFR sections 483.356, 483.358, 483.360, 483.362, 483.364, 483.366, 483.368, 483.370, 483.372, 483.374, and 483.376, and provided further:

(a) Seclusion in such facilities shall not be utilized unless pursuant to a written plan previously approved by the office.

(b) Upon admission, the facility must notify and supply a copy of the facility's restraint and seclusion policy to all patients or, if the patient is a minor, to the patient's parent or legal guardian. The policy must be communicated in an accessible format, must include contact information for the Justice Center for the Protection of People with Special Needs and receipt by the patient, parent, or legal guardian must be acknowledged in writing and filed in the patient's record.

(c) After initiation of restraint or seclusion as an emergency safety intervention for a minor patient, the facility must notify the parent(s) or legal guardian(s) as soon as possible. A record of the facility's contact with such person must be documented in the patient's record, including the date and time of notification and the name of the staff member who provided the notification.

(iv) Comprehensive psychiatric emergency programs. Restraint or seclusion in comprehensive psychiatric emergency programs governed by Part 590 of this Title shall be utilized in accordance with Mental Hygiene Law section 33.04, Part 590 of this Title, and applicable Federal regulations.

(v) Outpatient treatment for adults or children. Restraint or seclusion shall not be utilized in outpatient treatment programs for adults or children governed by Part 599 or 587 of this Title, including: clinic treatment programs for adults; clinic treatment programs serving children; continuing day treatment programs; day treatment programs serving children; partial hospitalization programs; intensive psychiatric rehabilitation treatment programs; and any other programs governed by such Part. Staff of such programs must have ongoing education and training, and must demonstrate competence, in techniques and alternative methods for safely handling escalating or aggressive behavior.

(vi) Residential programs for adults. Restraint or seclusion shall not be utilized in residential programs for adults governed by Part 595 of this Title. Each residential program must include in its functional program, developed in accordance with section 595.7 of Part 595 of this Title, emergency procedures that will be followed to manage violent, aggressive behavior that places the resident or others in danger. Staff of residential programs for adults must have ongoing education and training, and must demonstrate competence, in techniques and alternative methods for safely handling crisis situations.

(vii) Licensed housing programs for children. Restraint and seclusion shall not be utilized in licensed housing programs for children governed by Part 594 of this Title. Each licensed housing program for children must have ongoing education and training, and must demonstrate competence, in techniques and alternative methods of safely handling crisis situations.

(viii) Personalized recovery oriented services. Restraint and seclusion shall not be utilized in personalized recovery oriented services programs governed by Part 512 of this Title. Each personalized recovery oriented services program must have ongoing education and training, and must demonstrate competence, in techniques and alternative methods of safely handling crisis situations.

(ix) Other programs licensed by the office. Unless specifically authorized in regulations establishing any other program category governed by the office, restraint or seclusion shall not be utilized.

(x) In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing in this section shall be construed to prohibit the use of reasonable physical force when necessary to protect the life and limb of any person, for the purpose of restoring safety.

(d)Restraint for medical post-surgical procedures.

(1) The use of restraints for medical-post surgical purposes in programs operated or licensed by the office shall be in accordance with the same provisions governing the use of restraints set forth by the Department of Health in 10 NYCRR section 405.7 or the Centers for Medicare and Medicaid Services, whichever are stricter.

(2) Hospitals, and other programs operated or licensed by the office which utilize restraint for medical post-surgical purposes, shall have policies and procedures for the initiation of restraint or seclusion for such use. Such policies and procedures may be included with the policies and procedures for the initiation of restraint or seclusion for behavioral management purposes, or may be discrete.

(e)Guidelines of the office.

The office shall develop guidelines to assist providers in complying with the provisions of this section and in achieving restraint and seclusion reduction goals. The office shall post such guidelines on its public website.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 526.4

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014