The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5332--A
                                                        Cal. No. 381

                       2017-2018 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2017
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
  Committee on Health -- passed by Assembly and delivered to the Senate,
  recalled from the Senate, vote  reconsidered,  bill  amended,  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:

  Section 1. The public health law is amended by adding  a  new  section
280-d to read as follows:
  §  280-D.  USE  OF PSYCHOTROPIC MEDICATIONS IN NURSING HOMES AND ADULT
CARE FACILITIES. 1. AS USED IN THIS SECTION:
  (A) "PSYCHOTROPIC MEDICATION" MEANS A DRUG THAT AFFECTS  BRAIN  ACTIV-
ITIES  ASSOCIATED WITH MENTAL PROCESSES AND BEHAVIOR, INCLUDING, BUT NOT
LIMITED TO, ANTIPSYCHOTICS, ANTIDEPRESSANTS, ANTIANXIETY DRUGS OR ANXIO-
LYTICS, AND HYPNOTICS;
  (B) "LAWFUL REPRESENTATIVE" MEANS, WHERE A PATIENT LACKS  CAPACITY  TO
CONSENT  TO HEALTH CARE, A PERSON AUTHORIZED TO CONSENT ON BEHALF OF THE
PATIENT, INCLUDING, BUT NOT LIMITED TO, A HEALTH CARE  AGENT  AUTHORIZED
BY  A HEALTH CARE PROXY UNDER ARTICLE TWENTY-NINE-C OF THIS CHAPTER OR A
SURROGATE UNDER ARTICLE TWENTY-NINE-CC OF THIS CHAPTER;
  (C) "INCREASE" WHEN USED IN RELATION TO AN ORDER  FOR  A  PSYCHOTROPIC
MEDICATION,  MEANS  AN INCREASE OF THE DOSAGE OR DURATION OF THE MEDICA-
TION ABOVE THE DOSAGE  OR  DURATION  COVERED  BY  THE  CURRENTLY  ACTIVE
CONSENT;
  (D)  "HEALTH  CARE  PROFESSIONAL"  MEANS  A  HEALTH CARE PROFESSIONAL,
LICENSED, CERTIFIED OR AUTHORIZED TO PRACTICE UNDER TITLE EIGHT  OF  THE
EDUCATION  LAW,  ACTING  WITHIN HIS OR HER LAWFUL SCOPE OF PRACTICE, WHO
HAS AUTHORITY TO ORDER A PSYCHOTROPIC MEDICATION; AND
  (E) "PATIENT" MEANS AN INDIVIDUAL WHO IS A RESIDENT OF  A  RESIDENTIAL
HEALTH CARE FACILITY AS DEFINED IN ARTICLE TWENTY-EIGHT OF THIS CHAPTER,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD02468-04-8

A. 5332--A                          2

OR  AN  ADULT  CARE FACILITY CERTIFIED UNDER SECTION FOUR HUNDRED SIXTY-
ONE-B OF THE SOCIAL SERVICES LAW.
  2.  (A)  AN  ORDER  FOR  A  PSYCHOTROPIC  MEDICATION SHALL INCLUDE THE
DOSAGE, FREQUENCY, AND DURATION OF THE  ORDER  WHICH  SHALL  NOT  EXCEED
FOURTEEN  DAYS.  A HEALTH CARE PROFESSIONAL MAY NOT ORDER OR INCREASE AN
ORDER FOR A PSYCHOTROPIC MEDICATION FOR A PATIENT UNLESS THE HEALTH CARE
PROFESSIONAL HAS OBTAINED THE WRITTEN INFORMED CONSENT OF THE PATIENT OR
THE PATIENT'S LAWFUL REPRESENTATIVE, OR IS ACTING PURSUANT TO  AN  ORDER
UNDER  THIS  SECTION,  OR  IS  ACTING  UNDER  SUBDIVISION  THREE OF THIS
SECTION. WHERE A PATIENT LACKS CAPACITY TO CONSENT TO  HEALTH  CARE  AND
LACKS  A  LAWFUL  REPRESENTATIVE, AN ORDER OR INCREASE OF AN ORDER UNDER
THIS SECTION SHALL BE SUBJECT TO SUBDIVISION FOUR OF SECTION TWENTY-NINE
HUNDRED NINETY-FOUR-G OF THIS CHAPTER AS IF THE PATIENT  WERE  AN  INPA-
TIENT OF A GENERAL HOSPITAL. TO CONSTITUTE INFORMED CONSENT, THE FOLLOW-
ING DISCLOSURE SHALL BE GIVEN TO THE PATIENT OR, WHERE THE PATIENT LACKS
CAPACITY TO CONSENT TO HEALTH CARE, THE PATIENT'S LAWFUL REPRESENTATIVE,
IN A CLEAR AND EXPLICIT MANNER:
  (I)  THE  REASON FOR THE MEDICATION, INCLUDING THE NATURE AND SERIOUS-
NESS OF THE PATIENT'S ILLNESS, DISORDER OR CONDITION THAT THE MEDICATION
IS INTENDED TO TREAT;
  (II) THE ANTICIPATED BENEFIT FROM  THE  MEDICATION,  AND  THE  DOSAGE,
FREQUENCY, AND DURATION OF THE ORDER;
  (III)  THE  PROBABILITY  OF  SIDE EFFECTS AND SIGNIFICANT RISKS OF THE
MEDICATION, INCLUDING THE NATURE, DEGREE, AND DURATION OF  SUCH  EFFECTS
AND REASONABLY KNOWN RISKS;
  (IV)  THE REASONABLE ALTERNATIVE TREATMENTS TO THE PROPOSED MEDICATION
AND THE REASON THAT THE HEALTH CARE PROFESSIONAL  PREFERS  THE  PROPOSED
MEDICATION IN THIS INSTANCE; AND
  (V) THAT THE PATIENT OR LAWFUL REPRESENTATIVE HAS THE RIGHT TO CONSENT
OR  REFUSE  CONSENT TO USE OF THE PROPOSED MEDICATION, AND THAT IF HE OR
SHE CONSENTS, HE OR SHE HAS THE RIGHT TO REVOKE HIS OR HER  CONSENT  FOR
ANY  REASON,  AT  ANY  TIME,  INCLUDING A DESCRIPTION OF HOW THE CONSENT
SHALL BE REVOKED.
  (B) THE HEALTH CARE  PROFESSIONAL  SHALL  DOCUMENT  IN  THE  PATIENT'S
MEDICAL  RECORD  THE  DATE AND TIME THAT THE INFORMED CONSENT DISCLOSURE
WAS PROVIDED, AND TO WHOM AND BY WHOM IT WAS PROVIDED, AND  INCLUDE  THE
WRITTEN CONSENT.
  (C)  WHERE THE PATIENT'S MEDICAL RECORD NOTES THAT A FAMILY MEMBER HAS
REQUESTED NOTIFICATION OF MEDICATION ORDERS, AND  SUCH  NOTIFICATION  IS
OTHERWISE  LAWFUL, THE HEALTH CARE PROFESSIONAL SHALL CAUSE NOTICE TO BE
PROVIDED  WITHIN  FORTY-EIGHT  HOURS  OF  THE  PRESCRIPTION,  ORDER,  OR
INCREASE  OF  AN  ORDER  UNDER  THIS  SECTION.  SUCH NOTICE SHALL NOT BE
PROVIDED IF THE PATIENT SPECIFICALLY REQUESTS THAT THE FAMILY MEMBER NOT
BE GIVEN NOTIFICATION.
  3. A HEALTH CARE PROFESSIONAL IS NOT REQUIRED TO OBTAIN CONSENT  UNDER
THIS  SECTION TO ISSUE AN ORDER FOR USE OF A PSYCHOTROPIC MEDICATION FOR
A PATIENT WHERE IT IS REASONABLY NECESSARY IN AN  EMERGENCY  TO  PROTECT
THE  LIFE,  HEALTH  OR SAFETY OF THE PATIENT OR ANOTHER PERSON. WHERE AN
ORDER IS MADE UNDER THIS SUBDIVISION, THE HEALTH CARE PROFESSIONAL SHALL
IMMEDIATELY RECORD THE USE OF THE PSYCHOTROPIC  MEDICATION,  THE  REASON
FOR  THE USE, AND THE DOSAGE, IN THE PATIENT'S MEDICAL RECORD; AND SHALL
PROMPTLY NOTIFY THE PATIENT OR THE PATIENT'S LAWFUL  REPRESENTATIVE  WHO
WOULD  HAVE HAD THE AUTHORITY TO CONSENT, AND ANY FAMILY MEMBER REQUIRED
TO BE NOTIFIED UNDER THIS SECTION AND RECORD SUCH NOTIFICATIONS  IN  THE
PATIENT'S MEDICAL RECORD.

A. 5332--A                          3

  4.  THIS SECTION DOES NOT INCREASE THE LAWFUL SCOPE OF PRACTICE OF ANY
HEALTH CARE PROFESSIONAL AND DOES NOT DIMINISH OR IMPAIR ANY REQUIREMENT
FOR OR REGULATION OF CONSENT TO HEALTH CARE TREATMENT.
  5. THE COMMISSIONER MAY MAKE REGULATIONS TO IMPLEMENT THIS SECTION.
  § 2. This act shall take effect on the one hundred eightieth day after
it  shall  have  become a law; provided that, effective immediately, the
commissioner of health is authorized to make regulations  and  take  any
other  actions necessary to implement section 280-d of the public health
law.