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: A7467
SPONSOR: Paulin 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:.
Section one adds a new section 280-d to 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 informed 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 proba-
bility, 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 writ-
ten.
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: A7351 - passed Assembly No Senate Bill
2017-2018: A5332 - passed Assembly Senate Health.
2019-2020: A1033 passed Assembly Senate Health
2021-2022: A5841 - passed Assembly - Senate Health
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
________________________________________________________________________
7467
2023-2024 Regular Sessions
IN ASSEMBLY
May 24, 2023
___________
Introduced by M. of A. PAULIN, SAYEGH, STECK, SIMON, COOK, GLICK, VANEL,
LUNSFORD, L. ROSENTHAL, BRONSON, ZEBROWSKI, THIELE, WILLIAMS,
BICHOTTE HERMELYN, CARROLL, FALL, GALLAGHER, FORREST, CRUZ, STIRPE,
CLARK, COLTON, SANTABARBARA, HUNTER, JACKSON, ZINERMAN, KELLES, JACOB-
SON, OTIS, WALLACE, MEEKS, SILLITTI -- read once and referred 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:
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01548-01-3
A. 7467 2
1 (e) "patient" means an individual who is a resident of a residential
2 health care facility as defined in article twenty-eight of this chapter,
3 or an adult care facility certified under section four hundred sixty-
4 one-b of the social services law.
5 2. (a) An order for a psychotropic medication in a nursing home shall
6 include the dosage, frequency, and duration of the order which shall not
7 exceed fourteen days. A health care professional, who is employed by or
8 contracted with a nursing home or adult care facility to provide
9 services to facility residents, or who provides services on site in a
10 nursing home or adult care facility, may not prescribe or increase a
11 prescription for a psychotropic medication for a patient in such facili-
12 ty unless the health care professional has obtained the written informed
13 consent of the patient or the patient's lawful representative, or is
14 acting pursuant to an order under this section, or is acting under
15 subdivision three of this section. Where a patient lacks capacity to
16 consent to health care and lacks a lawful representative, a prescription
17 or increase of a prescription under this section shall be subject to
18 subdivision four of section twenty-nine hundred ninety-four-g of this
19 chapter as if the patient were an inpatient of a general hospital. To
20 constitute informed consent, the following disclosure shall be given to
21 the patient or, where the patient lacks capacity to consent to health
22 care, the patient's lawful representative, in a clear and explicit
23 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 or prescriptions, and such
46 notification is otherwise lawful, the health care professional shall
47 cause notice to be provided within forty-eight hours of the
48 prescription, order, or increase of an order or prescription under this
49 section. Such notice shall not be provided if the patient specifically
50 requests that the family member not 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 in a nursing home where it is necessary in an emergency to
54 protect against an immediate threat to the life, health or safety of the
55 patient or another person. The medication must be the most appropriate
56 available means of reducing that threat, with the least risk of harm
A. 7467 3
1 considering the patient's condition or disorder. The order shall only
2 apply, in the absence of consent, during the emergency. Where an order
3 is made under this subdivision, the health care professional shall imme-
4 diately record the use of the psychotropic medication, the reason for
5 the use, and the dosage, in the patient's medical record; and shall
6 promptly notify the patient or the patient's lawful representative who
7 would have had the authority to consent, and any family member required
8 to be notified under this section and record such notifications in the
9 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 addition, amend-
16 ment and/or repeal of any rule or regulation necessary for the implemen-
17 tation of this act on its effective date are authorized to be made and
18 completed on or before such effective date.
