NY State Senate Bill 2021-S2103

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 24, 2022	print number 2103b
Jan 24, 2022	amend and recommit to health
Jan 05, 2022	referred to health
Jun 10, 2021	committed to rules
May 03, 2021	amended on third reading 2103a
Mar 11, 2021	advanced to third reading
Mar 10, 2021	2nd report cal.
Mar 09, 2021	1st report cal.541
Jan 19, 2021	referred to health

Votes

- Mar 9, 2021 - Health Committee Vote
  S2103
  
  Aye
  
  8
  
  Nay
  
  4
  
  Aye with Reservations
  
  3
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Health Committee Vote: Mar 9, 2021
      
      aye (8)
      
      Benjamin
      
      Biaggi
      
      Brouk
      
      Hoylman-Sigal
      
      Kaminsky
      
      Rivera
      
      Ryan
      
      Salazar
      
      nay (4)
      
      Gallivan
      
      Oberacker
      
      Rath III
      
      Stec
      
      aye wr (3)
      
      Boyle
      
      May
      
      Thomas

Bill Amendments

Original

B (Active)

2021-S2103 - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add §280-d, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8752
2019-2020: S5441
2023-2024: S466
2025-2026: S893

2021-S2103 - Summary

Relates to the use of psychotropic medications in nursing homes and adult care facilities; imposes limits as to time and documentation; requires informed consent under certain circumstances.

2021-S2103 - Sponsor Memo

                                
 
BILL NUMBER: S2103

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the public health law, in relation to the use of psycho-
tropic medications in nursing homes and adult care facilities

 
PURPOSE OR GENERAL IDEA OF BILL:

To require an enhanced level of informed consent before psychotropic
medication can be prescribed for patients residing in nursing homes or
adult care facilities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Would add a new section 280-c to article 2-A of the Public Health Law to
detail the information that must be provided before a health care
professional may prescribe a psychotropic medication and require a writ-
ten informed consent before the initial order, or before an increase in
the dose or duration of an existing order. s.k 1 The bill accommodates

the need of patients who lack capacity and have lawful representation by
a health care agent or surrogate. It provides notification within 48
hours of an order for a psychotropic medication to family members who
have requested and are lawfully permitted to receive such notice. It
establishes requirements for record keeping in relation to such medica-
tion orders and the contingent informed consent.

Finally, the bill allows for an emergency order for psychotropic medica-
tion where it is reasonably necessary to protect the life, health or
safety of the patient or others, with prompt notification to lawful
representatives and family members lawfully permitted to receive such
notice.

 
JUSTIFICATION:

Under section 2803-c(3) of the Public Health Law, patients residing in
nursing homes have the right to be fully informed of their condition and
any proposed treatment, to refuse treatment, and to be free from chemi-
cal restraints unless such a prescription is consistent with certain
requirements that limit duration and guide use necessitated by an emer-
gency. Psychotropic medications are drugs that affect brain activities
associated with mental processes and behavior including antipsychotics,
antidepressants, antianxiety drugs and hypnotics.

Spurred by published reports, the Assembly Committee on Health held a
public hearing in February 2015 to examine the use of psychotropic drugs
in nursing homes. Consensus emerged that in far too many instances,
psychotropic drugs are used without a differential diagnosis of mental
illness, in order to quiet and calm patients who may be simply upset or
excitable. Given that activities and diversions have been proven to
effectively reduce disruptions related to simple anxiety, dementia and
emotional upset, it is not in many patients' interest to expose them to
the dangerous side effects of psychotropic drugs which include cognitive
decline and addiction.

This bill would require that before such drugs are ordered for a patient
residing in a nursing home or an adult care facility, the patient or
their lawful surrogate be fully informed of the nature and seriousness
of his or her condition, the anticipated benefit from the medication,
the dosage and duration of the prescription, the probability, nature and
degree of side effects, the reasonable alternatives to the drug and why
the health care professional prefers the drug in this instance, and that
the patient has the right to refuse consent for the drug, or later to
revoke their consent. The consent would be written.

Adult care facilities, including assisted living and adult homes, share
many similarities with nursing homes in terms of the needs, vulnerabili-
ty and isolation of the residents. It is appropriate to extend the
protections of this legislation to adult care facility residents.

Allowing family members beyond those who are already the health care
agent or surrogate for the patient to require notification adds another
layer of accountability and assures that patients' quality of life will
be protected and optimized.

Reference: Left Behind: The Impact Of The Failure To Fulfill The Promise
of The National Campaign To Improve Dementia Care; Long Term Community
Care Coalition; 12/22/2014.

 
PRIOR LEGISLATIVE HISTORY:

2015-2016: A.7351 - Passed Assembly
2017-2018: A.5332 Passed Assembly
2019-2020: S.5441 Referred to Health / A.1033 Passed Assembly

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
180 days after enactment provided that the Commissioner may make regu-
lations beforehand that would become effective at the same time as the
law.

2021-S2103 - Bill Text download pdf

                            
 
                     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.

2021-S2103A - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add §280-d, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8752
2019-2020: S5441
2023-2024: S466
2025-2026: S893

2021-S2103A - Summary

Relates to the use of psychotropic medications in nursing homes and adult care facilities; imposes limits as to time and documentation; requires informed consent under certain circumstances.

2021-S2103A - Sponsor Memo

                                
 
BILL NUMBER: S2103A

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the public health law, in relation to the use of psycho-
tropic medications in nursing homes and adult care facilities

 
PURPOSE OR GENERAL IDEA OF BILL:

To require an enhanced level of informed consent before psychotropic
medication can be prescribed for patients residing in nursing homes or
adult care facilities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Would add a new section 280-c to article 2-A of the Public Health Law to
detail the information that must be provided before a health care
professional may prescribe a psychotropic medication and require a writ-
ten informed consent before the initial order, or before an increase in
the dose or duration of an existing order.

The bill accommodates the need of patients who lack capacity and have
lawful representation by a health care agent or surrogate. It provides
notification within 48 hours of an order for a psychotropic medication
to family members who have requested and are lawfully permitted to
receive such notice. It establishes requirements for record keeping in
relation to such medication orders and the contingent informed consent.

Finally, the bill allows for an emergency order for psychotropic medica-
tion where it is necessary to protect the life, health or safety of a
nursing home patient or others in the nursing home, with prompt notifi-
cation to lawful representatives and family members lawfully permitted
to receive such notice

 
JUSTIFICATION:

Under section 2803-c(3) of the Public Health Law, patients residing in
nursing homes have the right to be fully informed of their condition and
any proposed treatment, to refuse treatment, and to be free from chemi-
cal restraints unless such a prescription is consistent with certain
requirements that limit duration and guide use necessitated by an emer-
gency. Psychotropic medications are drugs that affect brain activities
associated with mental processes and behavior including antipsychotics,
antidepressants, antianxiety drugs and hypnotics.

Spurred by published reports, the Assembly Committee on Health held a
public hearing in February 2015 to examine the use of psychotropic drugs
in nursing homes. Consensus emerged that in far too many instances,
psychotropic drugs are used without a differential diagnosis of mental
illness, in order to quiet and calm patients who may be simply upset or
excitable. Given that-activities and diversions have been proven to
effectively reduce disruptions related to simple anxiety, dementia and
emotional upset, it is not in many patients' interest to expose them to
the dangerous side effects of psychotropic drugs which include cognitive
decline and addiction.

This bill would require that before such drugs are ordered for a patient
residing in a nursing home or an adult care facility, the patient or
their lawful surrogate be fully informed of the nature and seriousness
of his or her condition, the anticipated benefit from the medication,
the dosage and duration of the prescription, the probability, nature and
degree of side effects, the reasonable alternatives to the drug and why
the health care professional prefers the drug in this instance, and that
the patient has the right to refuse consent for the drug, or later to
revoke their consent. The consent would be written.

Adult care facilities, including assisted living and adult homes, share
many similarities with nursing homes in terms of the needs, vulnerabili-
ty and isolation of the residents. It is appropriate to extend the
protections of this legislation to adult care facility residents, yet
limit the emergency order to nursing homes. Allowing family members
beyond those who are already the health care agent or surrogate for the
patient to require notification adds another layer of accountability and
assures that patients' quality of life will be protected and optimized.

Reference: Left Behind: The Impact Of The Failure To Fulfill The Promise
of The National Campaign To Improve Dementia Care; Long Term Community
Care Coalition; 12/22/2014.

 
PRIOR LEGISLATIVE HISTORY:

2015-16: A.7351 - passed Assembly
2017-18: S8752-A/A.5332 passed Assembly
2019-20: S5441 Referred to Health

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
180 days after enactment provided that the Commissioner may make regu-
lations beforehand that would become effective at the same time as the
law.

2021-S2103A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2103--A
     Cal. No. 541
 
                        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 -- reported favora-
   bly  from  said committee, ordered to first and second report, ordered
   to a third reading, amended and ordered reprinted, retaining its place
   in 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00036-03-1

 S. 2103--A                          2
 
   (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
 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

 S. 2103--A                          3
 
 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.

2021-S2103B (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add §280-d, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8752
2019-2020: S5441
2023-2024: S466
2025-2026: S893

2021-S2103B (ACTIVE) - Summary

Relates to the use of psychotropic medications in nursing homes and adult care facilities; imposes limits as to time and documentation; requires informed consent under certain circumstances.

2021-S2103B (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S2103B

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the public health law, in relation to the use of psycho-
tropic medications in nursing homes and adult care facilities

 
PURPOSE:

To require an enhanced level of informed consent before psychotropic
medication can be prescribed for patients in nursing homes or adult care
facilities.

 
SUMMARY OF PROVISIONS:

Would add a new section 280-c to article 2-A of the Public Health Law to
detail the information that must be provided before a health care
professional may prescribe a psychotropic medication to a patient in a
nursing home or an adult care facility and require a written informed
consent before the initial order or prescription, or before an increase
in the dose or duration of an existing order or prescription.

The bill accommodates the need of patients who lack capacity and have
lawful representation by a health care agent or surrogate. It provides
notification within 48 hours of an order for a psychotropic medication
to family members who have requested and are lawfully permitted to
receive such notice. It establishes requirements for record keeping in
relation to such medication orders and the contingent informed consent.

Finally, the bill allows for an emergency order for psychotropic medica-
tion where it is necessary to protect the life, health or safety of a
nursing home patient or others in the nursing home, with prompt notifi-
cation to lawful representatives and family members lawfully permitted
to receive such notice.

 
JUSTIFICATION:

Under section 2803-c(3) of the Public Health Law, patients residing in
nursing homes have the right to be fully informed of their condition and
any proposed treatment, to refuse treatment, and to be free from chemi-
cal restraints unless such a prescription is consistent with certain
requirements that limit duration and guide use necessitated by an emer-
gency. Psychotropic medications are drugs that affect brain activities
associated with mental processes and behavior including antipsychotics,
antidepressants, antianxiety drugs and hypnotics.

Spurred by published reports, the Assembly Committee on Health held a
public hearing in February 2015 to examine the use of psychotropic drugs
in nursing homes. Consensus emerged that in far too many instances,
psychotropic drugs are used without a differential diagnosis of mental
illness, in order to quiet and calm patients who may be simply upset or
excitable. Given that activities and diversions have been proven to
effectively reduce disruptions related to simple anxiety, dementia and
emotional upset, it is not in many patients' interest to expose them to
the dangerous side effects of psychotropic drugs which include cognitive
decline and addiction.


This bill would require that before such drugs are ordered for a patient
in a nursing home or an adult care facility, the patient or their lawful
surrogate be fully informed of the nature and seriousness of his or her
condition, the anticipated benefit from the medication, the dosage and
duration of the prescription, the probability, nature and degree of side
effects, the reasonable alternatives to the drug and why the health care
professional prefers the drug in this instance, and that the patient has
the right to refuse consent for the drug, or later to revoke their
consent. The consent would be written.

Adult care facilities, including assisted living and adult homes, share
many similarities with nursing homes in terms of the needs, vulnerabili-
ty and isolation of the residents. It is appropriate to extend the
protections of this legislation to adult care facility residents, yet
limit the emergency order to nursing homes. Allowing family members
beyond those who are already the health care agent or surrogate for the
patient to require notification adds another layer of accountability and
assures that patients' quality of life will be protected and optimized.

Reference: Left Behind: The Impact Of The Failure To Fulfill The Promise
of The National Campaign To Improve Dementia Care; Long Term Community
Care Coalition; 12/22/2014.

 
PRIOR LEGISLATIVE HISTORY:

2015-2016: A.7351
2017-2018: S.8752A/A.5332A
2019-2020: S.5441/A.1033

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
180 days after enactment provided that the Commissioner may make regu-
lations beforehand that would become effective at the same time as the
law.

2021-S2103B (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2103--B
 
                        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 -- reported favora-
   bly  from  said committee, ordered to first and second report, ordered
   to a third reading, amended and ordered reprinted, retaining its place
   in the order of third reading  --  recommitted  to  the  Committee  on
   Health  in  accordance  with  Senate  Rule  6,  sec.  8  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00036-05-2

 S. 2103--B                          2
 
 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 IN A NURSING HOME SHALL
 INCLUDE THE DOSAGE, FREQUENCY, AND DURATION OF THE ORDER WHICH SHALL NOT
 EXCEED FOURTEEN DAYS. A HEALTH CARE PROFESSIONAL, WHO IS EMPLOYED BY  OR
 CONTRACTED  WITH  A  NURSING  HOME  OR  ADULT  CARE  FACILITY TO PROVIDE
 SERVICES TO FACILITY RESIDENTS,  OR WHO PROVIDES SERVICES ON SITE  IN  A
 NURSING  HOME  OR  ADULT  CARE FACILITY, MAY NOT PRESCRIBE OR INCREASE A
 PRESCRIPTION FOR A PSYCHOTROPIC MEDICATION FOR A PATIENT IN SUCH FACILI-
 TY 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, A PRESCRIPTION
 OR  INCREASE  OF  A  PRESCRIPTION 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 INPATIENT OF A GENERAL HOSPITAL. TO
 CONSTITUTE INFORMED CONSENT, THE FOLLOWING 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 OR PRESCRIPTIONS,  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 OR PRESCRIPTION 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  IN  A  NURSING HOME WHERE IT IS NECESSARY IN AN EMERGENCY TO
 PROTECT AGAINST AN IMMEDIATE THREAT TO THE LIFE, HEALTH OR SAFETY OF THE
 S. 2103--B                          3
 
 PATIENT OR ANOTHER PERSON.  THE MEDICATION MUST BE THE MOST  APPROPRIATE
 AVAILABLE  MEANS  OF  REDUCING  THAT THREAT, WITH THE LEAST RISK OF HARM
 CONSIDERING THE PATIENT'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 IMME-
 DIATELY 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.
   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.

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