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.