N.Y. Comp. Codes R. & Regs. tit. 18 § 441.17

Current through Register Vol. 46, No. 45, November 2, 2024

Section 441.17 - Restraint of children in care

(a)Definitions. As used in this Part:

(1)Restraint means the containment of acute physical behavior by physical intervention. Restraint as used in Part does not mean time out, confinement of a child to their own room for treatment or disciplinary reasons or use of a locked unit

(2)Acute physical behavior means only that behavior which clearly indicates the intent to inflict physical injury upon oneself or others or to otherwise jeopardize the safety of any person.

(3)Physical restraint means the use of staff to hold a child in order to contain acute physical behavior.

(4)Time out means the removal of a child from a situation that is too threatening or emotionally overwhelming for the child or where the child may lead other children into an uncontrollable state or where the child has exceeded the reasonable limits set by the staff.

(5)Locked unit means a program approved by the Office of Children and Family Services that is contained within a closed unit and is designed to serve a special population.

(6)Discipline means methods for achieving, restoring, and maintaining order and purposefulness through encouragement, guidance, and teaching children to live as socialized beings.

(b) Restraints are an exceptional intervention and shall be used only when other forms of intervention are either inappropriate or have been tried and proved unsuccessful.

(1) Restraint will never be used for punishment or for the convenience of staff.

(2) Restraint shall not be used to purposely inflict pain, fear, or harm.

(3) Room isolation, mechanical restraints, and pharmacological restraints may never be used as a form of restraint for a child in foster care.

(4) Prone restraint must not be used as a form of restraint for a child in foster care.

(c) An authorized agency shall not use any method of restraint unless it has submitted its restraint policy to the Office of Children and Family Services and such policy has been approved in writing by the Office of Children and Family Services in accordance with subdivision (d) of this section.

(d)

(1) To qualify for approval of its restraint policy by the Office of Children and Family Services, an authorized agency must be in compliance with the provisions of this section and maintain a section of the agency's policy manual which clearly states the plan and procedures for the use of restraint. Such a section and the authorized agency's policy on restraint shall include at a minimum the following:

(i) preventive methods and procedures for situations which might lead to the use of restraint;

(ii) appropriate alternatives to restraint;

(iii) the circumstances when restraint might be necessary;

(iv) methods of applying restraint and the rules which must be observed in applying such restraint; and

(v) a description of the training agency staff will receive as required by subdivision (f) of this section.

(2) No changes or modifications in the authorized agency's policy on restraint shall be made without prior written approval of the Office of Children and Family Services. All approved changes shall be recorded in the agency's policy manual. The agency shall conduct its program of restraint in accordance with its approved policy.

(3) The duration of the Office of Children and Family Services approval will be for a period of two years. However, the Office of Children and Family Services approval may be revoked in whole or in part at any time that an agency is not using restraint in accordance with its approved policy and any other provision of this section.

(4)

(i) Agencies currently using restraint or planning to use restraint shall submit a request for provisional approval to the Office of Children and Family Service in a form and manner prescribed by the Office of Children and Family Services. No agency shall continue to use restraint 90 days after adoption of these regulations without written provisional approval by the Office of Children and Family Services. Such request shall include the agency's plan for training staff in the use of restraint as required by subdivision (f) of this section. The initial training as required by subdivision (f) must be completed prior to final approval by the Office of Children and Family Services.

(ii) The Office of Children and Family Services shall review the agency's policy on restraint and the agency's plans for training. The Office of Children and Family Services shall review all rooms used for de-escalation to determine whether the room(s) meets the requirements of subdivision (i) of section 442.2 of this Subchapter. Within 90 days of receipt of the request for approval, the Office of Children and Family Services shall make a determination as to whether the application is acceptable.

(iii) If the Office of Children and Family Services determines that the application is unsatisfactory, the Office of Children and Family Services shall notify the applicant in writing of the denial of approval and the reasons therefor.

(iv) If the Office of Children and Family Services determines that the applicant is in compliance with the standards and regulations as set forth in this section, it shall notify the applicant in writing of final approval of the application.

(e) Three months prior to the expiration of the approved restraint policy, authorized agencies shall submit a request for renewal of such policy to the Office of Children and Family Services. The Office of Children and Family Services will review the agency's restraint policy and incident reports and case records of children on whom restraint has been used or injured as a result of a restraint incident. The agency will be notified of continued approval of their restraint policy within 90 days from the date the Office of Children and Family Services received their request for renewal. Continued approval will be based upon the agency's continued compliance with this section and a showing by the agency of continued need for such policy.

(f)Staff training.

(1) All staff involved in the use of restraint must complete at least six hours of training in the agency's policy concerning:

(i) preventive methods and procedures for situations which might lead to the use of restraint;

(ii) appropriate alternatives to restraint;

(iii) the circumstances when restraint might be necessary; and

(iv) methods of applying restraint and the rules which must be observed in so doing.

(2) All staff involved in the use of restraint must complete such training prior to their use of restraint, except as provided in paragraph (d)(4) of this section and must complete a review of such training every six months following the initial training.

(g) post restraint health review

(1) A post-restraint health review, conducted by a medical professional, is required within one hour of the conclusion of the restraint for any child who has been restrained. A report of such examination shall be kept in the child's medical record. When a restraint occurs outside of the working hours of medical staff, the post-restraint health review must occur as soon as practicable the next day.

(2) If it appears that a child may have sustained an injury immediately prior to or during the use of restraint, the child shall be examined by a physician or nurse immediately following the period of restraint. A report of such examination shall be kept in the child's medical record.

(3) All children cared for in an institution as defined in section 441.2 of this Part must receive a post-physical restraint health review in accordance with the standards set forth by the Office of Children and Family Services.

(h) Following each instance during which restraint is used, a summary of the incident, including efforts made to identify and resolve the problem that led to the use of restraint, the reason restraint was determined necessary and the child's reaction to the use of restraint, shall be recorded and kept in the progress notes of the child's uniform case record.

(i) Following each instance during which physical restraint is applied, the authorized agency that applied the physical restraint must notify the restrained child's parent, guardian or other person legally responsible, as applicable, the attorney for the child, and the authorized agency with legal custody of the restrained child, if different, of the use of physical restraint, any injuries sustained by the child as a result of the physical restraint and any contacts with the Vulnerable Persons' Central Register involving such restraint within 24 hours of the restraint, and document all efforts to contact those not immediately reachable.

(j) Each authorized agency shall maintain daily records of the number of children on whom restraints have been used, including the name and age of each such child and the type of restraint used.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 441.17

Amended New York State Register September 16, 2015/Volume XXXVII, Issue 37, eff. 9/16/2015

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Amended New York State Register March 31, 2021/Volume XLIII, Issue 13, eff. 3/31/2021