The New York State Senate

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

                                  5441

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                               May 1, 2019
                               ___________

Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

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,
OR  AN  ADULT  CARE FACILITY CERTIFIED UNDER SECTION FOUR HUNDRED SIXTY-
ONE-B OF THE SOCIAL SERVICES LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD03494-01-9

S. 5441                             2

  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.
  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.

S. 5441                             3

  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. 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.