S T A T E O F N E W Y O R K
________________________________________________________________________
3455
2019-2020 Regular Sessions
I N A S S E M B L Y
January 29, 2019
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Introduced by M. of A. ORTIZ, JEAN-PIERRE, MOSLEY -- read once and
referred to the Committee on Mental Health
AN ACT to amend the mental hygiene law, in relation to the use of elec-
troconvulsive therapy
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Title E of the mental hygiene law is amended by adding a
new article 85 to read as follows:
ARTICLE 85
ELECTROCONVULSIVE AND OTHER THERAPIES
SECTION 85.01 APPLICATION.
85.02 USE OF ELECTROCONVULSIVE THERAPY.
85.03 CONSENT TO THERAPY.
85.04 WITHDRAWAL OF CONSENT.
85.05 PHYSICIAN REQUIREMENT.
85.06 REGISTRATION OF EQUIPMENT.
85.07 REPORTS.
85.08 USE OF INFORMATION; REPORT.
§ 85.01 APPLICATION.
THIS ARTICLE SHALL APPLY TO THE USE OF ELECTROCONVULSIVE THERAPY BY
ANY PERSON, INCLUDING A PRIVATE PHYSICIAN WHO USES THE THERAPY ON AN
OUTPATIENT BASIS.
§ 85.02 USE OF ELECTROCONVULSIVE THERAPY.
(A) ELECTROCONVULSIVE THERAPY MAY NOT BE USED ON A PERSON WHO IS YOUN-
GER THAN SIXTEEN YEARS OF AGE.
(B) UNLESS THE PERSON CONSENTS TO THE USE OF THE THERAPY IN ACCORDANCE
WITH SECTION 85.03 OF THIS ARTICLE, ELECTROCONVULSIVE THERAPY MAY NOT BE
USED ON:
(1) A PERSON WHO IS SIXTEEN YEARS OF AGE OR OLDER AND WHO IS VOLUNTAR-
ILY RECEIVING MENTAL HEALTH SERVICES; OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07136-01-9
A. 3455 2
(2) AN INVOLUNTARY PATIENT WHO IS SIXTEEN YEARS OF AGE OR OLDER AND
WHO HAS NOT BEEN ADJUDICATED BY AN APPROPRIATE COURT OF LAW AS INCOMPE-
TENT TO MANAGE THE PATIENT'S PERSONAL AFFAIRS.
(C) ELECTROCONVULSIVE THERAPY MAY NOT BE USED ON AN INVOLUNTARY
PATIENT WHO IS SIXTEEN YEARS OF AGE OR OLDER AND WHO HAS BEEN ADJUDI-
CATED INCOMPETENT TO MANAGE THE PATIENT'S PERSONAL AFFAIRS UNLESS THE
PATIENT'S GUARDIAN OF THE PERSON CONSENTS TO THE TREATMENT IN ACCORDANCE
WITH SECTION 85.03 OF THIS ARTICLE. THE DECISION OF THE GUARDIAN MUST BE
BASED ON KNOWLEDGE OF WHAT THE PATIENT WOULD DESIRE, IF KNOWN.
§ 85.03 CONSENT TO THERAPY.
(A) THE DEPARTMENT BY RULE SHALL ADOPT A STANDARD WRITTEN CONSENT FORM
TO BE USED WHEN ELECTROCONVULSIVE THERAPY IS CONSIDERED. THE DEPARTMENT
BY RULE SHALL ALSO PRESCRIBE THE INFORMATION THAT MUST BE CONTAINED IN
THE WRITTEN SUPPLEMENT REQUIRED UNDER SUBDIVISION (C) OF THIS SECTION.
IN ADDITION TO THE INFORMATION REQUIRED UNDER THIS SECTION, THE FORM
MUST INCLUDE THE INFORMATION REQUIRED BY THE MENTAL HYGIENE MEDICAL
REVIEW BOARD FOR ELECTROCONVULSIVE THERAPY. IN DEVELOPING THE FORM, THE
DEPARTMENT SHALL CONSIDER RECOMMENDATIONS OF THE MEDICAL REVIEW BOARD.
USE OF THE CONSENT FORM PRESCRIBED BY THE DEPARTMENT IN THE MANNER
PRESCRIBED BY THIS SECTION CREATES A REBUTTABLE PRESUMPTION THAT THE
DISCLOSURE REQUIREMENTS OF THIS CHAPTER HAVE BEEN MET.
(B) THE WRITTEN CONSENT FORM MUST CLEARLY AND EXPLICITLY STATE:
(1) THE NATURE AND PURPOSE OF THE PROCEDURE;
(2) THE NATURE, DEGREE, DURATION, AND PROBABILITY OF THE SIDE EFFECTS
AND SIGNIFICANT RISKS OF THE TREATMENT COMMONLY KNOWN BY THE MEDICAL
PROFESSION, ESPECIALLY NOTING THE POSSIBLE DEGREE AND DURATION OF MEMORY
LOSS, THE POSSIBILITY OF PERMANENT IRREVOCABLE MEMORY LOSS, AND THE
POSSIBILITY OF DEATH;
(3) THAT THERE IS A DIVISION OF OPINION AS TO THE EFFICACY OF THE
PROCEDURE; AND
(4) THE PROBABLE DEGREE AND DURATION OF IMPROVEMENT OR REMISSION
EXPECTED WITH OR WITHOUT THE PROCEDURE.
(C) BEFORE A PATIENT RECEIVES EACH ELECTROCONVULSIVE TREATMENT, THE
HOSPITAL, FACILITY OR PHYSICIAN ADMINISTERING THE THERAPY SHALL ENSURE
THAT:
(1) THE PATIENT AND THE PATIENT'S GUARDIAN OF THE PERSON, IF ANY,
RECEIVES A WRITTEN COPY OF THE CONSENT FORM THAT IS IN THE PERSON'S
PRIMARY LANGUAGE, IF POSSIBLE;
(2) THE PATIENT AND THE PATIENT'S GUARDIAN OF THE PERSON, IF ANY,
RECEIVES A WRITTEN SUPPLEMENT THAT CONTAINS RELATED INFORMATION THAT
PERTAINS TO THE PARTICULAR PATIENT BEING TREATED;
(3) THE CONTENTS OF THE CONSENT FORM AND THE WRITTEN SUPPLEMENT ARE
EXPLAINED TO THE PATIENT AND THE PATIENT'S GUARDIAN OF THE PERSON, IF
ANY:
(A) ORALLY, IN SIMPLE, NONTECHNICAL TERMS IN THE PERSON'S PRIMARY
LANGUAGE, IF POSSIBLE; OR
(B) THROUGH THE USE OF A MEANS REASONABLY CALCULATED TO COMMUNICATE
WITH A HEARING IMPAIRED OR VISUALLY IMPAIRED PERSON, IF APPLICABLE;
(4) THE PATIENT OR THE PATIENT'S GUARDIAN OF THE PERSON, AS APPROPRI-
ATE, SIGNS A COPY OF THE CONSENT FORM STATING THAT THE PERSON HAS READ
THE CONSENT FORM AND THE WRITTEN SUPPLEMENT AND UNDERSTANDS THE INFORMA-
TION INCLUDED IN THE DOCUMENTS; AND
(5) THE SIGNED COPY OF THE CONSENT FORM IS MADE A PART OF THE
PATIENT'S CLINICAL RECORD.
A. 3455 3
(D) CONSENT GIVEN UNDER THIS SECTION IS NOT VALID UNLESS THE PERSON
GIVING THE CONSENT UNDERSTANDS THE INFORMATION PRESENTED AND CONSENTS
VOLUNTARILY AND WITHOUT COERCION OR UNDUE INFLUENCE.
(E) FOR A PATIENT SIXTY-FIVE YEARS OF AGE OR OLDER, BEFORE EACH TREAT-
MENT SERIES BEGINS, THE HOSPITAL, FACILITY OR PHYSICIAN ADMINISTERING
THE PROCEDURE SHALL:
(1) ENSURE THAT TWO PHYSICIANS HAVE SIGNED AN APPROPRIATE FORM THAT
STATES THE PROCEDURE IS MEDICALLY NECESSARY;
(2) MAKE THE FORM DESCRIBED BY PARAGRAPH ONE OF THIS SUBDIVISION
AVAILABLE TO THE PATIENT OR THE PATIENT'S GUARDIAN OF THE PERSON; AND
(3) INFORM THE PATIENT OR THE PATIENT'S GUARDIAN OF THE PERSON OF ANY
KNOWN CURRENT MEDICAL CONDITION THAT MAY INCREASE THE POSSIBILITY OF
INJURY OR DEATH AS A RESULT OF THE TREATMENT.
§ 85.04 WITHDRAWAL OF CONSENT.
(A) A PATIENT OR GUARDIAN WHO CONSENTS TO THE ADMINISTRATION OF ELEC-
TROCONVULSIVE THERAPY MAY REVOKE THE CONSENT FOR ANY REASON AND AT ANY
TIME.
(B) REVOCATION OF CONSENT IS EFFECTIVE IMMEDIATELY.
§ 85.05 PHYSICIAN REQUIREMENT.
(A) ONLY A PHYSICIAN MAY ADMINISTER ELECTROCONVULSIVE THERAPY.
(B) A PHYSICIAN MAY NOT DELEGATE THE ACT OF ADMINISTERING THE THERAPY.
A NONPHYSICIAN WHO ADMINISTERS ELECTROCONVULSIVE THERAPY IS CONSIDERED
TO BE PRACTICING MEDICINE IN VIOLATION OF THE LAWS OF THIS STATE.
§ 85.06 REGISTRATION OF EQUIPMENT.
(A) A PERSON MAY NOT ADMINISTER ELECTROCONVULSIVE THERAPY UNLESS THE
EQUIPMENT USED TO ADMINISTER THE THERAPY IS REGISTERED WITH THE DEPART-
MENT.
(B) A MENTAL HOSPITAL OR FACILITY ADMINISTERING ELECTROCONVULSIVE
THERAPY OR A PRIVATE PHYSICIAN ADMINISTERING THE THERAPY ON AN OUTPA-
TIENT BASIS MUST FILE AN APPLICATION FOR REGISTRATION UNDER THIS
SECTION. THE APPLICANT MUST SUBMIT THE APPLICATION TO THE DEPARTMENT ON
A FORM PRESCRIBED BY THE DEPARTMENT.
(C) THE APPLICATION MUST BE ACCOMPANIED BY A NONREFUNDABLE APPLICATION
FEE. THE DEPARTMENT SHALL SET THE FEE IN A REASONABLE AMOUNT NOT TO
EXCEED THE COST TO THE DEPARTMENT TO ADMINISTER THIS SECTION.
(D) THE APPLICATION MUST CONTAIN:
(1) THE MODEL, MANUFACTURER, AND AGE OF EACH PIECE OF EQUIPMENT USED
TO ADMINISTER THE THERAPY; AND
(2) ANY OTHER INFORMATION REQUIRED BY THE DEPARTMENT.
(E) THE DEPARTMENT MAY CONDUCT AN INVESTIGATION AS CONSIDERED NECES-
SARY AFTER RECEIVING THE PROPER APPLICATION AND THE REQUIRED FEE.
(F) THE DEPARTMENT BY RULE MAY PROHIBIT THE REGISTRATION AND USE OF
EQUIPMENT OF A TYPE, MODEL OR AGE THE DEPARTMENT DETERMINES IS DANGER-
OUS.
(G) THE DEPARTMENT MAY DENY, SUSPEND OR REVOKE A REGISTRATION IF THE
DEPARTMENT DETERMINES THAT THE EQUIPMENT IS DANGEROUS. THE DENIAL,
SUSPENSION OR REVOCATION OF A REGISTRATION IS CONSIDERED A CONTESTED
CASE.
§ 85.07 REPORTS.
(A) A MENTAL HOSPITAL OR FACILITY ADMINISTERING ELECTROCONVULSIVE
THERAPY, PSYCHOSURGERY, PRE-FRONTAL SONIC SOUND TREATMENT, OR ANY OTHER
CONVULSIVE OR COMA-PRODUCING THERAPY ADMINISTERED TO TREAT MENTAL
ILLNESS OR A PHYSICIAN ADMINISTERING THE THERAPY ON AN OUTPATIENT BASIS
SHALL SUBMIT TO THE DEPARTMENT QUARTERLY REPORTS RELATING TO THE ADMIN-
ISTRATION OF THE THERAPY IN THE HOSPITAL OR FACILITY OR BY THE PHYSI-
CIAN.
A. 3455 4
(B) A REPORT MUST STATE FOR EACH QUARTER:
(1) THE NUMBER OF PATIENTS WHO RECEIVED THE THERAPY, INCLUDING:
(A) THE NUMBER OF PERSONS VOLUNTARILY RECEIVING MENTAL HEALTH SERVICES
WHO CONSENTED TO THE THERAPY;
(B) THE NUMBER OF INVOLUNTARY PATIENTS WHO CONSENTED TO THE THERAPY;
(C) THE NUMBER OF INVOLUNTARY PATIENTS FOR WHOM A GUARDIAN CONSENTED
TO THE THERAPY;
(2) THE AGE, SEX AND RACE OF THE PERSONS RECEIVING THE THERAPY;
(3) THE SOURCE OF THE TREATMENT PAYMENT;
(4) THE AVERAGE NUMBER OF NONELECTROCONVULSIVE TREATMENTS;
(5) THE AVERAGE NUMBER OF NONELECTROCONVULSIVE TREATMENTS ADMINISTERED
FOR EACH COMPLETE SERIES OF TREATMENTS, BUT NOT INCLUDING MAINTENANCE
TREATMENTS;
(6) THE AVERAGE NUMBER OF MAINTENANCE ELECTROCONVULSIVE TREATMENTS
ADMINISTERED PER MONTH;
(7) THE NUMBER OF FRACTURES, REPORTED MEMORY LOSSES, INCIDENTS OF
APNEA, AND CARDIAC ARRESTS WITHOUT DEATH;
(8) AUTOPSY FINDINGS IF DEATH FOLLOWED WITHIN FOURTEEN DAYS AFTER THE
DATE OF THE ADMINISTRATION OF THE THERAPY; AND
(9) ANY OTHER INFORMATION REQUIRED BY THE DEPARTMENT.
§ 85.08 USE OF INFORMATION; REPORT.
(A) THE DEPARTMENT SHALL USE THE INFORMATION RECEIVED UNDER SECTIONS
85.06 AND 85.07 OF THIS ARTICLE TO ANALYZE, AUDIT AND MONITOR THE USE OF
ELECTROCONVULSIVE THERAPY, PSYCHOSURGERY, PRE-FRONTAL SONIC SOUND TREAT-
MENT, OR ANY OTHER CONVULSIVE OR COMA-PRODUCING THERAPY ADMINISTERED TO
TREAT MENTAL ILLNESS.
(B) THE DEPARTMENT SHALL FILE ANNUALLY WITH THE GOVERNOR, THE TEMPO-
RARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY A WRITTEN
REPORT SUMMARIZING BY FACILITY THE INFORMATION RECEIVED PURSUANT TO
SECTIONS 85.06 AND 85.07 OF THIS ARTICLE. IF THE THERAPY IS ADMINISTERED
BY A PRIVATE PHYSICIAN ON AN OUTPATIENT BASIS, THE REPORT MUST INCLUDE
THAT INFORMATION BUT MAY NOT IDENTIFY DIRECTLY OR INDIRECTLY IN A REPORT
ISSUED PURSUANT TO THIS SECTION A PATIENT WHO RECEIVED THE THERAPY.
§ 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be made and
completed on or before such date.