The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5841
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 26, 2021
                                ___________
 
 Introduced  by  M.  of A. GOTTFRIED, SAYEGH -- read once and referred 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

 A. 5841                             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.

 A. 5841                             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.

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5841--A
                                                             R. R. 27
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 26, 2021
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED,  WEINSTEIN, SAYEGH, STECK, SIMON,
   CUSICK,  BARRON,  ABINANTI,  COOK,  GLICK,  VANEL,  LUNSFORD,  CAHILL,
   L. ROSENTHAL,   PICHARDO,   RICHARDSON,  BRONSON,  ZEBROWSKI,  THIELE,
   WILLIAMS, BICHOTTE HERMELYN, CARROLL, FALL, GALLAGHER, FORREST,  CRUZ,
   STIRPE,  NOLAN,  CLARK,  COLTON, PERRY, SANTABARBARA, HUNTER, JACKSON,
   ZINERMAN, GRIFFIN, KELLES, 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
 
 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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00036-02-1

 A. 5841--A                          2
 
   (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.
   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 WHO IS A NURSING HOME RESIDENT WHERE IT  IS  NECESSARY  IN  AN
 EMERGENCY  TO PROTECT AGAINST AN IMMEDIATE THREAT TO THE LIFE, HEALTH OR
 SAFETY OF THE RESIDENT OR ANOTHER PERSON.   THE MEDICATION MUST  BE  THE
 MOST APPROPRIATE AVAILABLE MEANS OF REDUCING THAT THREAT, WITH THE LEAST

 A. 5841--A                          3
 
 RISK OF HARM CONSIDERING THE RESIDENT'S CONDITION OR DISORDER. THE ORDER
 SHALL ONLY APPLY, IN THE ABSENCE OF CONSENT, DURING THE EMERGENCY. 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  RESIDENT'S  LAWFUL  REPRESEN-
 TATIVE  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.
   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.