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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5841B
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 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 to a patient in a
nursing home or an adult care facility and require a written infounded
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- 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.
STATE OF NEW YORK
________________________________________________________________________
5841--B
Cal. No. 190
2021-2022 Regular Sessions
IN ASSEMBLY
February 26, 2021
___________
Introduced by M. of A. GOTTFRIED, WEINSTEIN, SAYEGH, STECK, SIMON,
CUSICK, ABINANTI, COOK, GLICK, VANEL, LUNSFORD, CAHILL, L. ROSENTHAL,
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 -- 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 -- ordered to a
third reading, amended and ordered reprinted, retaining its place on
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:
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-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00036-04-2
A. 5841--B 2
1 tion above the dosage or duration covered by the currently active
2 consent;
3 (d) "health care professional" means a health care professional,
4 licensed, certified or authorized to practice under title eight of the
5 education law, acting within his or her lawful scope of practice, who
6 has authority to order a psychotropic medication; and
7 (e) "patient" means an individual who is a resident of a residential
8 health care facility as defined in article twenty-eight of this chapter,
9 or an adult care facility certified under section four hundred sixty-
10 one-b of the social services law.
11 2. (a) An order for a psychotropic medication in a nursing home shall
12 include the dosage, frequency, and duration of the order which shall not
13 exceed fourteen days. A health care professional, who is employed by or
14 contracted with a nursing home or adult care facility to provide
15 services to facility residents, or who provides services on site in a
16 nursing home or adult care facility, may not prescribe or increase a
17 prescription for a psychotropic medication for a patient in such facili-
18 ty unless the health care professional has obtained the written informed
19 consent of the patient or the patient's lawful representative, or is
20 acting pursuant to an order under this section, or is acting under
21 subdivision three of this section. Where a patient lacks capacity to
22 consent to health care and lacks a lawful representative, a prescription
23 or increase of a prescription under this section shall be subject to
24 subdivision four of section twenty-nine hundred ninety-four-g of this
25 chapter as if the patient were an inpatient of a general hospital. To
26 constitute informed consent, the following disclosure shall be given to
27 the patient or, where the patient lacks capacity to consent to health
28 care, the patient's lawful representative, in a clear and explicit
29 manner:
30 (i) the reason for the medication, including the nature and serious-
31 ness of the patient's illness, disorder or condition that the medication
32 is intended to treat;
33 (ii) the anticipated benefit from the medication, and the dosage,
34 frequency, and duration of the order;
35 (iii) the probability of side effects and significant risks of the
36 medication, including the nature, degree, and duration of such effects
37 and reasonably known risks;
38 (iv) the reasonable alternative treatments to the proposed medication
39 and the reason that the health care professional prefers the proposed
40 medication in this instance; and
41 (v) that the patient or lawful representative has the right to consent
42 or refuse consent to use of the proposed medication, and that if he or
43 she consents, he or she has the right to revoke his or her consent for
44 any reason, at any time, including a description of how the consent
45 shall be revoked.
46 (b) The health care professional shall document in the patient's
47 medical record the date and time that the informed consent disclosure
48 was provided, and to whom and by whom it was provided, and include the
49 written consent.
50 (c) Where the patient's medical record notes that a family member has
51 requested notification of medication orders or prescriptions, and such
52 notification is otherwise lawful, the health care professional shall
53 cause notice to be provided within forty-eight hours of the
54 prescription, order, or increase of an order or prescription under this
55 section. Such notice shall not be provided if the patient specifically
56 requests that the family member not be given notification.
A. 5841--B 3
1 3. A health care professional is not required to obtain consent under
2 this section to issue an order for use of a psychotropic medication for
3 a patient in a nursing home where it is necessary in an emergency to
4 protect against an immediate threat to the life, health or safety of the
5 patient or another person. The medication must be the most appropriate
6 available means of reducing that threat, with the least risk of harm
7 considering the patient's condition or disorder. The order shall only
8 apply, in the absence of consent, during the emergency. Where an order
9 is made under this subdivision, the health care professional shall imme-
10 diately record the use of the psychotropic medication, the reason for
11 the use, and the dosage, in the patient's medical record; and shall
12 promptly notify the patient or the patient's lawful representative who
13 would have had the authority to consent, and any family member required
14 to be notified under this section and record such notifications in the
15 patient's medical record.
16 4. This section does not increase the lawful scope of practice of any
17 health care professional and does not diminish or impair any requirement
18 for or regulation of consent to health care treatment.
19 5. The commissioner may make regulations to implement this section.
20 § 2. This act shall take effect on the one hundred eightieth day after
21 it shall have become a law. Effective immediately, the commissioner of
22 health is authorized to make regulations and take any other actions
23 necessary to implement section 280-d of the public health law.