S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    466
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2023
                                ___________
 
 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.
                                                            LBD01548-01-3
              

 S. 466                              2
 
   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
 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
 S. 466                              3
 
 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 addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation of this act on its effective date are authorized to be  made  and
 completed on or before such effective date.