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A05841 Summary:

BILL NOA05841A
 
SAME ASSAME AS S02103-A
 
SPONSORGottfried
 
COSPNSRWeinstein, Sayegh, Steck, Simon, Cusick, Barron, Abinanti, Cook, Glick, Vanel, Lunsford, Cahill, Rosenthal L, Pichardo, Richardson, Bronson, Zebrowski, Thiele, Williams, Bichotte Hermelyn, Carroll, Fall, Gallagher, Forrest, Cruz, Stirpe, Nolan, Clark, Colton, Perry, Santabarbara, Hunter, Jackson, Zinerman, Griffin, Kelles, Jacobson, Fernandez, Galef, Sillitti
 
MLTSPNSR
 
Add §280-d, Pub Health L
 
Enacts requirement for 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.
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A05841 Actions:

BILL NOA05841A
 
02/26/2021referred to health
03/01/2021reported referred to codes
03/01/2021reported referred to rules
03/01/2021reported
03/02/2021rules report cal.27
03/02/2021ordered to third reading rules cal.27
03/04/2021amended on third reading 5841a
03/09/2021passed assembly
03/09/2021delivered to senate
03/09/2021REFERRED TO HEALTH
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A05841 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5841A
 
SPONSOR: Gottfried
  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: 2015-2016: A.7351 - passed Assembly 2017-2018: A. 5332 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.
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A05841 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5841--A
                                                                    R. R. 27
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    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:
 
     1    Section 1. The public health law is amended by adding  a  new  section
     2  280-d to read as follows:
     3    §  280-d.  Use  of psychotropic medications in nursing homes and adult
     4  care facilities. 1. As used in this section:
     5    (a) "psychotropic medication" means a drug that affects  brain  activ-
     6  ities  associated with mental processes and behavior, including, but not
     7  limited to, antipsychotics, antidepressants, antianxiety drugs or anxio-
     8  lytics, and hypnotics;
     9    (b) "lawful representative" means, where a patient lacks  capacity  to
    10  consent  to health care, a person authorized to consent on behalf of the
    11  patient, including, but not limited to, a health care  agent  authorized
    12  by  a health care proxy under article twenty-nine-C of this chapter or a
    13  surrogate under article twenty-nine-CC of this chapter;
    14    (c) "increase" when used in relation to an order  for  a  psychotropic
    15  medication,  means  an increase of the dosage or duration of the medica-
    16  tion above the dosage  or  duration  covered  by  the  currently  active
    17  consent;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00036-02-1

        A. 5841--A                          2
 
     1    (d)  "health  care  professional"  means  a  health care professional,
     2  licensed, certified or authorized to practice under title eight  of  the
     3  education  law,  acting  within his or her lawful scope of practice, who
     4  has authority to order a psychotropic medication; and
     5    (e)  "patient"  means an individual who is a resident of a residential
     6  health care facility as defined in article twenty-eight of this chapter,
     7  or an adult care facility certified under section  four  hundred  sixty-
     8  one-b of the social services law.
     9    2.  (a)  An  order  for  a  psychotropic  medication shall include the
    10  dosage, frequency, and duration of the  order  which  shall  not  exceed
    11  fourteen  days.  A health care professional may not order or increase an
    12  order for a psychotropic medication for a patient unless the health care
    13  professional has obtained the written informed consent of the patient or
    14  the patient's lawful representative, or is acting pursuant to  an  order
    15  under  this  section,  or  is  acting  under  subdivision  three of this
    16  section. Where a patient lacks capacity to consent to  health  care  and
    17  lacks  a  lawful  representative, an order or increase of an order under
    18  this section shall be subject to subdivision four of section twenty-nine
    19  hundred ninety-four-g of this chapter as if the patient  were  an  inpa-
    20  tient of a general hospital. To constitute informed consent, the follow-
    21  ing disclosure shall be given to the patient or, where the patient lacks
    22  capacity to consent to health care, the patient's lawful representative,
    23  in a clear and explicit manner:
    24    (i)  the  reason for the medication, including the nature and serious-
    25  ness of the patient's illness, disorder or condition that the medication
    26  is intended to treat;
    27    (ii) the anticipated benefit from  the  medication,  and  the  dosage,
    28  frequency, and duration of the order;
    29    (iii)  the  probability  of  side effects and significant risks of the
    30  medication, including the nature, degree, and duration of  such  effects
    31  and reasonably known risks;
    32    (iv)  the reasonable alternative treatments to the proposed medication
    33  and the reason that the health care professional  prefers  the  proposed
    34  medication in this instance; and
    35    (v) that the patient or lawful representative has the right to consent
    36  or  refuse  consent to use of the proposed medication, and that if he or
    37  she consents, he or she has the right to revoke his or her  consent  for
    38  any  reason,  at  any  time,  including a description of how the consent
    39  shall be revoked.
    40    (b) The health care  professional  shall  document  in  the  patient's
    41  medical  record  the  date and time that the informed consent disclosure
    42  was provided, and to whom and by whom it was provided, and  include  the
    43  written consent.
    44    (c)  Where the patient's medical record notes that a family member has
    45  requested notification of medication orders, and  such  notification  is
    46  otherwise  lawful, the health care professional shall cause notice to be
    47  provided  within  forty-eight  hours  of  the  prescription,  order,  or
    48  increase  of  an  order  under  this  section.  Such notice shall not be
    49  provided if the patient specifically requests that the family member not
    50  be given notification.
    51    3. A health care professional is not required to obtain consent  under
    52  this  section to issue an order for use of a psychotropic medication for
    53  a patient who is a nursing home resident where it  is  necessary  in  an
    54  emergency  to protect against an immediate threat to the life, health or
    55  safety of the resident or another person.   The medication must  be  the
    56  most appropriate available means of reducing that threat, with the least

        A. 5841--A                          3
 
     1  risk of harm considering the resident's condition or disorder. The order
     2  shall only apply, in the absence of consent, during the emergency. Where
     3  an  order  is  made under this subdivision, the health care professional
     4  shall  immediately  record  the  use of the psychotropic medication, the
     5  reason for the use, and the dosage, in the patient's medical record; and
     6  shall promptly notify the patient or  the  resident's  lawful  represen-
     7  tative  who  would  have  had  the  authority to consent, and any family
     8  member required to be  notified  under  this  section  and  record  such
     9  notifications in the patient's medical record.
    10    4.  This section does not increase the lawful scope of practice of any
    11  health care professional and does not diminish or impair any requirement
    12  for or regulation of consent to health care treatment.
    13    5. The commissioner may make regulations to implement this section.
    14    § 2. This act shall take effect on the one hundred eightieth day after
    15  it shall have become a law. Effective immediately, the  commissioner  of
    16  health  is  authorized  to  make  regulations and take any other actions
    17  necessary to implement section 280-d of the public health law.
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