NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5332A
SPONSOR: Gottfried TITLE OF BILL: An act to amend the public health law, in relation to
the use of psychotropic 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-d 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 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
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
________________________________________________________________________
5332--A
Cal. No. 381
2017-2018 Regular Sessions
IN ASSEMBLY
February 8, 2017
___________
Introduced by M. of A. GOTTFRIED -- read once and referred to the
Committee on Health -- passed by Assembly and delivered to the Senate,
recalled from the Senate, vote reconsidered, bill amended, 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-
16 tion above the dosage or duration covered by the currently active
17 consent;
18 (d) "health care professional" means a health care professional,
19 licensed, certified or authorized to practice under title eight of the
20 education law, acting within his or her lawful scope of practice, who
21 has authority to order a psychotropic medication; and
22 (e) "patient" means an individual who is a resident of a residential
23 health care facility as defined in article twenty-eight of this chapter,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02468-04-8
A. 5332--A 2
1 or an adult care facility certified under section four hundred sixty-
2 one-b of the social services law.
3 2. (a) An order for a psychotropic medication shall include the
4 dosage, frequency, and duration of the order which shall not exceed
5 fourteen days. A health care professional may not order or increase an
6 order for a psychotropic medication for a patient unless the health care
7 professional has obtained the written informed consent of the patient or
8 the patient's lawful representative, or is acting pursuant to an order
9 under this section, or is acting under subdivision three of this
10 section. Where a patient lacks capacity to consent to health care and
11 lacks a lawful representative, an order or increase of an order under
12 this section shall be subject to subdivision four of section twenty-nine
13 hundred ninety-four-g of this chapter as if the patient were an inpa-
14 tient of a general hospital. To constitute informed consent, the follow-
15 ing disclosure shall be given to the patient or, where the patient lacks
16 capacity to consent to health care, the patient's lawful representative,
17 in a clear and explicit manner:
18 (i) the reason for the medication, including the nature and serious-
19 ness of the patient's illness, disorder or condition that the medication
20 is intended to treat;
21 (ii) the anticipated benefit from the medication, and the dosage,
22 frequency, and duration of the order;
23 (iii) the probability of side effects and significant risks of the
24 medication, including the nature, degree, and duration of such effects
25 and reasonably known risks;
26 (iv) the reasonable alternative treatments to the proposed medication
27 and the reason that the health care professional prefers the proposed
28 medication in this instance; and
29 (v) that the patient or lawful representative has the right to consent
30 or refuse consent to use of the proposed medication, and that if he or
31 she consents, he or she has the right to revoke his or her consent for
32 any reason, at any time, including a description of how the consent
33 shall be revoked.
34 (b) The health care professional shall document in the patient's
35 medical record the date and time that the informed consent disclosure
36 was provided, and to whom and by whom it was provided, and include the
37 written consent.
38 (c) Where the patient's medical record notes that a family member has
39 requested notification of medication orders, and such notification is
40 otherwise lawful, the health care professional shall cause notice to be
41 provided within forty-eight hours of the prescription, order, or
42 increase of an order under this section. Such notice shall not be
43 provided if the patient specifically requests that the family member not
44 be given notification.
45 3. A health care professional is not required to obtain consent under
46 this section to issue an order for use of a psychotropic medication for
47 a patient where it is reasonably necessary in an emergency to protect
48 the life, health or safety of the patient or another person. Where an
49 order is made under this subdivision, the health care professional shall
50 immediately record the use of the psychotropic medication, the reason
51 for the use, and the dosage, in the patient's medical record; and shall
52 promptly notify the patient or the patient's lawful representative who
53 would have had the authority to consent, and any family member required
54 to be notified under this section and record such notifications in the
55 patient's medical record.
A. 5332--A 3
1 4. This section does not increase the lawful scope of practice of any
2 health care professional and does not diminish or impair any requirement
3 for or regulation of consent to health care treatment.
4 5. The commissioner may make regulations to implement this section.
5 § 2. This act shall take effect on the one hundred eightieth day after
6 it shall have become a law; provided that, effective immediately, the
7 commissioner of health is authorized to make regulations and take any
8 other actions necessary to implement section 280-d of the public health
9 law.
