The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2103
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 19, 2021
                                ___________
 
 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.

                                                            LBD00036-01-1

 S. 2103                             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. 2103                             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.