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A05332 Summary:

A05332 Actions:

A05332 Memo:

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.

A05332 Text:

 
                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.