Relates to the use of psychotropic medications in nursing homes and adult care facilities; imposes limits as to time and documentation; requires informed consent under certain circumstances.
STATE OF NEW YORK
________________________________________________________________________
5841--B
Cal. No. 190
2021-2022 Regular Sessions
IN ASSEMBLY
February 26, 2021
___________
Introduced by M. of A. GOTTFRIED, WEINSTEIN, SAYEGH, STECK, SIMON,
CUSICK, ABINANTI, COOK, GLICK, VANEL, LUNSFORD, CAHILL, L. ROSENTHAL,
RICHARDSON, BRONSON, ZEBROWSKI, THIELE, WILLIAMS, BICHOTTE HERMELYN,
CARROLL, FALL, GALLAGHER, FORREST, CRUZ, STIRPE, NOLAN, CLARK, COLTON,
PERRY, SANTABARBARA, HUNTER, JACKSON, ZINERMAN, GRIFFIN, KELLES,
JACOBSON, FERNANDEZ, GALEF, SILLITTI -- read once and referred to the
Committee on Health -- reported and referred to the Committee on Codes
-- reported and referred to the Committee on Rules -- amended on the
special order of third reading, ordered reprinted as amended, retain-
ing its place on the special order of third reading -- ordered to a
third reading, amended and ordered reprinted, retaining its place on
the order of third reading
AN ACT to amend the public health law, in relation to the use of psycho-
tropic medications in nursing homes and adult care facilities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public health law is amended by adding a new section
2 280-d to read as follows:
3 § 280-d. Use of psychotropic medications in nursing homes and adult
4 care facilities. 1. As used in this section:
5 (a) "psychotropic medication" means a drug that affects brain activ-
6 ities associated with mental processes and behavior, including, but not
7 limited to, antipsychotics, antidepressants, antianxiety drugs or anxio-
8 lytics, and hypnotics;
9 (b) "lawful representative" means, where a patient lacks capacity to
10 consent to health care, a person authorized to consent on behalf of the
11 patient, including, but not limited to, a health care agent authorized
12 by a health care proxy under article twenty-nine-C of this chapter or a
13 surrogate under article twenty-nine-CC of this chapter;
14 (c) "increase" when used in relation to an order for a psychotropic
15 medication, means an increase of the dosage or duration of the medica-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00036-04-2
A. 5841--B 2
1 tion above the dosage or duration covered by the currently active
2 consent;
3 (d) "health care professional" means a health care professional,
4 licensed, certified or authorized to practice under title eight of the
5 education law, acting within his or her lawful scope of practice, who
6 has authority to order a psychotropic medication; and
7 (e) "patient" means an individual who is a resident of a residential
8 health care facility as defined in article twenty-eight of this chapter,
9 or an adult care facility certified under section four hundred sixty-
10 one-b of the social services law.
11 2. (a) An order for a psychotropic medication in a nursing home shall
12 include the dosage, frequency, and duration of the order which shall not
13 exceed fourteen days. A health care professional, who is employed by or
14 contracted with a nursing home or adult care facility to provide
15 services to facility residents, or who provides services on site in a
16 nursing home or adult care facility, may not prescribe or increase a
17 prescription for a psychotropic medication for a patient in such facili-
18 ty unless the health care professional has obtained the written informed
19 consent of the patient or the patient's lawful representative, or is
20 acting pursuant to an order under this section, or is acting under
21 subdivision three of this section. Where a patient lacks capacity to
22 consent to health care and lacks a lawful representative, a prescription
23 or increase of a prescription under this section shall be subject to
24 subdivision four of section twenty-nine hundred ninety-four-g of this
25 chapter as if the patient were an inpatient of a general hospital. To
26 constitute informed consent, the following disclosure shall be given to
27 the patient or, where the patient lacks capacity to consent to health
28 care, the patient's lawful representative, in a clear and explicit
29 manner:
30 (i) the reason for the medication, including the nature and serious-
31 ness of the patient's illness, disorder or condition that the medication
32 is intended to treat;
33 (ii) the anticipated benefit from the medication, and the dosage,
34 frequency, and duration of the order;
35 (iii) the probability of side effects and significant risks of the
36 medication, including the nature, degree, and duration of such effects
37 and reasonably known risks;
38 (iv) the reasonable alternative treatments to the proposed medication
39 and the reason that the health care professional prefers the proposed
40 medication in this instance; and
41 (v) that the patient or lawful representative has the right to consent
42 or refuse consent to use of the proposed medication, and that if he or
43 she consents, he or she has the right to revoke his or her consent for
44 any reason, at any time, including a description of how the consent
45 shall be revoked.
46 (b) The health care professional shall document in the patient's
47 medical record the date and time that the informed consent disclosure
48 was provided, and to whom and by whom it was provided, and include the
49 written consent.
50 (c) Where the patient's medical record notes that a family member has
51 requested notification of medication orders or prescriptions, and such
52 notification is otherwise lawful, the health care professional shall
53 cause notice to be provided within forty-eight hours of the
54 prescription, order, or increase of an order or prescription under this
55 section. Such notice shall not be provided if the patient specifically
56 requests that the family member not be given notification.
A. 5841--B 3
1 3. A health care professional is not required to obtain consent under
2 this section to issue an order for use of a psychotropic medication for
3 a patient in a nursing home where it is necessary in an emergency to
4 protect against an immediate threat to the life, health or safety of the
5 patient or another person. The medication must be the most appropriate
6 available means of reducing that threat, with the least risk of harm
7 considering the patient's condition or disorder. The order shall only
8 apply, in the absence of consent, during the emergency. Where an order
9 is made under this subdivision, the health care professional shall imme-
10 diately record the use of the psychotropic medication, the reason for
11 the use, and the dosage, in the patient's medical record; and shall
12 promptly notify the patient or the patient's lawful representative who
13 would have had the authority to consent, and any family member required
14 to be notified under this section and record such notifications in the
15 patient's medical record.
16 4. This section does not increase the lawful scope of practice of any
17 health care professional and does not diminish or impair any requirement
18 for or regulation of consent to health care treatment.
19 5. The commissioner may make regulations to implement this section.
20 § 2. This act shall take effect on the one hundred eightieth day after
21 it shall have become a law. Effective immediately, the commissioner of
22 health is authorized to make regulations and take any other actions
23 necessary to implement section 280-d of the public health law.