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S07713 Summary:

BILL NOS07713B
 
SAME ASSAME AS A10345-A
 
SPONSORHANNON
 
COSPNSRAKSHAR, AVELLA, HELMING, PERALTA, ROBACH, VALESKY
 
MLTSPNSR
 
Amd §§2980, 2981, 2983 & 2985, Pub Health L
 
Authorizes a patient's attending nurse practitioner to witness the patient's execution of a health care proxy; authorizes a nurse practitioner to act as a person's health care agent; authorizes an attending nurse practitioner to determine that a patient lacks capacity.
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S07713 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7713--B
            Cal. No. 981
 
                    IN SENATE
 
                                    February 9, 2018
                                       ___________
 
        Introduced  by Sens. HANNON, AKSHAR, AVELLA, HELMING, ROBACH, VALESKY --
          read twice and ordered printed, and when printed to  be  committed  to
          the Committee on Health -- committee discharged, bill amended, ordered
          reprinted  as  amended  and  recommitted to said committee -- reported
          favorably from said committee, ordered to  first  report,  amended  on
          first  report,  ordered  to  a  second  report  and ordered reprinted,
          retaining its place in the order of second report
 
        AN ACT to amend the public health law, in relation to authorizing  nurse
          practitioners  to  witness  a  health care proxy, act as a health care
          agent and determine competency of the principal of such a proxy
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Section 2980 of the public health law is amended by adding
     2  three new subdivisions 2-a, 2-b and 2-c to read as follows:
     3    2-a. "Nurse practitioner" means a nurse practitioner  certified  under
     4  section  sixty-nine  hundred ten of the education law, practicing within
     5  his or her scope of practice.
     6    2-b. "Psychiatric  nurse  practitioner"  means  a  nurse  practitioner
     7  certified  by the department of education as a psychiatric nurse practi-
     8  tioner.
     9    2-c. "Attending nurse  practitioner"  means  the  nurse  practitioner,
    10  selected by or assigned to a patient, who has primary responsibility for
    11  the treatment and care of the patient. Where more than one nurse practi-
    12  tioner  shares  such  responsibility,  or  where a nurse practitioner is
    13  acting on the attending nurse  practitioner's  behalf,  any  such  nurse
    14  practitioner  may  act  as  the attending nurse practitioner pursuant to
    15  this article.
    16    § 2. Subdivisions 2, 3 and 6 of section 2981 of the public health law,
    17  as added by chapter 752 of the laws of 1990, paragraph (b)  of  subdivi-
    18  sion 2 as amended by chapter 23 of the laws of 1994 and paragraph (c) of
    19  subdivision  2  as  amended  by section 6 of part J of chapter 56 of the
    20  laws of 2012, are amended to read as follows:
    21    2. Health care proxy; execution; witnesses. (a) A competent adult  may
    22  appoint  a health care agent by a health care proxy, signed and dated by
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14616-05-8

        S. 7713--B                          2
 
     1  the adult in the presence of two adult witnesses who shall also sign the
     2  proxy. Another person may sign and date the health care  proxy  for  the
     3  adult  if  the adult is unable to do so, at the adult's direction and in
     4  the  adult's  presence,  and  in the presence of two adult witnesses who
     5  shall sign the proxy. The  witnesses  shall  state  that  the  principal
     6  appeared to execute the proxy willingly and free from duress. The person
     7  appointed  as  agent shall not act as witness to execution of the health
     8  care proxy.
     9    (b) For persons who reside in a mental hygiene  facility  operated  or
    10  licensed  by  the office of mental health, at least one witness shall be
    11  an individual who is not affiliated with the facility and, if the mental
    12  hygiene facility is also a hospital as defined  in  subdivision  ten  of
    13  section  1.03 of the mental hygiene law, at least one witness shall be a
    14  qualified psychiatrist or psychiatric nurse practitioner.
    15    (c) For persons who reside in a mental hygiene  facility  operated  or
    16  licensed  by  the  office for people with developmental disabilities, at
    17  least one witness shall be an individual who is not affiliated with  the
    18  facility  and  at  least one witness shall be a physician, nurse practi-
    19  tioner or clinical psychologist who either is  employed  by  a  develop-
    20  mental disabilities services office named in section 13.17 of the mental
    21  hygiene  law  or  who  has  been  employed for a minimum of two years to
    22  render care and service in a facility operated or licensed by the office
    23  for people with developmental disabilities, or has been approved by  the
    24  commissioner  of  developmental  disabilities  in  accordance with regu-
    25  lations approved by the commissioner.  Such  regulations  shall  require
    26  that  a  physician,  nurse practitioner or clinical psychologist possess
    27  specialized training or three years experience in treating developmental
    28  disabilities.
    29    3. Restrictions on who may be and limitations on a health care  agent.
    30  (a)  An  operator,  administrator  or  employee of a hospital may not be
    31  appointed as a health care agent by any person who, at the time  of  the
    32  appointment,  is  a patient or resident of, or has applied for admission
    33  to, such hospital.
    34    (b) The restriction in paragraph (a) of  this  subdivision  shall  not
    35  apply to:
    36    (i)  an  operator,  administrator  or  employee  of  a hospital who is
    37  related to the principal by blood, marriage or adoption; or
    38    (ii) a physician or nurse practitioner, subject to the limitation  set
    39  forth  in paragraph (c) of this subdivision, except that no physician or
    40  nurse practitioner affiliated  with  a  mental  hygiene  facility  or  a
    41  psychiatric  unit of a general hospital may serve as agent for a princi-
    42  pal residing in or being treated by such facility  or  unit  unless  the
    43  physician is related to the principal by blood, marriage or adoption.
    44    (c)  If  a  physician  or  nurse  practitioner is appointed agent, the
    45  physician or nurse practitioner shall not act as the patient's attending
    46  physician or attending nurse practitioner after the authority under  the
    47  health  care proxy commences, unless the physician or nurse practitioner
    48  declines the appointment as agent at or before such time.
    49    (d) No person who is not the spouse, child, parent, brother, sister or
    50  grandparent of the principal, or is the issue of, or  married  to,  such
    51  person,  shall  be  appointed  as a health care agent if, at the time of
    52  appointment, he or she is presently appointed health care agent for  ten
    53  principals.
    54    6.  Alternate  agent. (a) A competent adult may designate an alternate
    55  agent in the health care proxy to serve in place of the agent when:

        S. 7713--B                          3
 
     1    (i) the attending physician or attending nurse practitioner has deter-
     2  mined in a writing signed by the physician  or  nurse  practitioner  (A)
     3  that  the person appointed as agent is not reasonably available, willing
     4  and competent to serve as  agent,  and  (B)  that  such  person  is  not
     5  expected to become reasonably available, willing and competent to make a
     6  timely decision given the patient's medical circumstances;
     7    (ii)  the  agent is disqualified from acting on the principal's behalf
     8  pursuant to subdivision three of this  section  or  subdivision  two  of
     9  section two thousand nine hundred ninety-two of this article, or
    10    (iii) under conditions set forth in the proxy.
    11    (b)  If,  after  an  alternate agent's authority commences, the person
    12  appointed as agent becomes available, willing and competent to serve  as
    13  agent:
    14    (i) the authority of the alternate agent shall cease and the authority
    15  of the agent shall commence; and
    16    (ii)  the  attending  physician  or attending nurse practitioner shall
    17  record the change in agent and the reasons therefor in  the  principal's
    18  medical record.
    19    § 3. Section 2983 of the public health law, as added by chapter 752 of
    20  the  laws  of 1990, paragraph (b) of subdivision 1 as amended by chapter
    21  23 of the laws of 1994 and paragraph (c) of subdivision 1 as amended  by
    22  section  7  of  part  J of chapter 56 of the laws of 2012, is amended to
    23  read as follows:
    24    § 2983. Determination of lack of capacity to make  health  care  deci-
    25  sions  for the purpose of empowering agent. 1.  Determination by attend-
    26  ing physician or attending nurse practitioner. (a) A determination  that
    27  a  principal  lacks capacity to make health care decisions shall be made
    28  by the attending physician or attending nurse practitioner to a  reason-
    29  able  degree  of  medical  certainty. The determination shall be made in
    30  writing and shall contain such attending physician's or attending  nurse
    31  practitioner's opinion regarding the cause and nature of the principal's
    32  incapacity  as  well  as  its extent and probable duration. The determi-
    33  nation shall be included in the patient's medical record. For a decision
    34  to withdraw or withhold life-sustaining treatment, the attending  physi-
    35  cian  or attending nurse practitioner who makes the determination that a
    36  principal lacks capacity to make health care decisions must consult with
    37  another physician or nurse practitioner to confirm  such  determination.
    38  Such  consultation  shall  also be included within the patient's medical
    39  record.
    40    (b) If an attending physician or attending  nurse  practitioner  of  a
    41  patient in a general hospital or mental hygiene facility determines that
    42  a patient lacks capacity because of mental illness, the attending physi-
    43  cian  or  attending  nurse practitioner who makes the determination must
    44  be, or must consult, for the purpose of  confirming  the  determination,
    45  with  a  qualified  psychiatrist. A record of such consultation shall be
    46  included in the patient's medical record.
    47    (c) If the attending physician or attending nurse practitioner  deter-
    48  mines that a patient lacks capacity because of a developmental disabili-
    49  ty,  the  attending  physician or attending nurse practitioner who makes
    50  the determination must be, or must consult, for the purpose of  confirm-
    51  ing  the determination, with a physician, nurse practitioner or clinical
    52  psychologist who either is  employed  by  a  developmental  disabilities
    53  services office named in section 13.17 of the mental hygiene law, or who
    54  has  been employed for a minimum of two years to render care and service
    55  in a facility operated or licensed by the office for people with  devel-
    56  opmental  disabilities,  or  has  been  approved  by the commissioner of

        S. 7713--B                          4
 
     1  developmental disabilities in accordance with regulations promulgated by
     2  such commissioner. Such regulations  shall  require  that  a  physician,
     3  nurse practitioner or clinical psychologist possess specialized training
     4  or  three  years  experience  in  treating developmental disabilities. A
     5  record of such consultation shall be included in the  patient's  medical
     6  record.
     7    (d)  A  physician  or  nurse  practitioner who has been appointed as a
     8  patient's agent shall not make the determination of the patient's capac-
     9  ity to make health care decisions.
    10    2. Request for a determination. If requested by the agent, an  attend-
    11  ing physician or attending nurse practitioner shall make a determination
    12  regarding the principal's capacity to make health care decisions for the
    13  purposes of this article.
    14    3. Notice of determination. Notice of a determination that a principal
    15  lacks  capacity  to  make health care decisions shall promptly be given:
    16  (a) to the principal, orally and in writing, where there  is  any  indi-
    17  cation  of the principal's ability to comprehend such notice; (b) to the
    18  agent; (c) if the principal is  in  or  is  transferred  from  a  mental
    19  hygiene  facility,  to the facility director; and (d) to the conservator
    20  for, or committee of, the principal.
    21    4. Limited purpose of determination. A determination made pursuant  to
    22  this  section  that a principal lacks capacity to make health care deci-
    23  sions shall not be construed as a finding that the patient lacks capaci-
    24  ty for any other purpose.
    25    5. Priority of principal's decision. Notwithstanding  a  determination
    26  pursuant  to  this  section  that  the  principal lacks capacity to make
    27  health care decisions, where a principal objects to the determination of
    28  incapacity or to a health care decision made by an  agent,  the  princi-
    29  pal's objection or decision shall prevail unless the principal is deter-
    30  mined  by  a  court  of  competent jurisdiction to lack capacity to make
    31  health care decisions.
    32    6. Confirmation of lack of capacity. (a) The  attending  physician  or
    33  attending  nurse  practitioner  shall  confirm the principal's continued
    34  incapacity before complying with an agent's health care decisions, other
    35  than those decisions made at or about the time of the  initial  determi-
    36  nation  made  pursuant to subdivision one of this section. The confirma-
    37  tion shall be stated in writing and shall be included in the principal's
    38  medical record.
    39    (b) The notice requirements set forth in  subdivision  three  of  this
    40  section  shall  not  apply to the confirmation required by this subdivi-
    41  sion.
    42    7. Effect of recovery of capacity. In the event the  attending  physi-
    43  cian  or  attending nurse practitioner determines that the principal has
    44  regained capacity, the authority of the agent  shall  cease,  but  shall
    45  recommence  if  the  principal subsequently loses capacity as determined
    46  pursuant to this section.
    47    § 4. Subdivision 2 of section 2985 of the public health law, as  added
    48  by chapter 752 of the laws of 1990, is amended to read as follows:
    49    2.  Duty  to record revocation.  (a) A physician or nurse practitioner
    50  who is informed of or provided with a revocation of a health care  proxy
    51  shall  immediately  (i) record the revocation in the principal's medical
    52  record and (ii) notify the agent and the medical staff  responsible  for
    53  the principal's care of the revocation.
    54    (b)  Any  member of the staff of a health care provider informed of or
    55  provided with a revocation of a  health  care  proxy  pursuant  to  this

        S. 7713--B                          5
 
     1  section  shall  immediately  notify a physician or nurse practitioner of
     2  such revocation.
     3    §  5.  This  act shall take effect on the ninetieth day after it shall
     4  have become a law.   Effective immediately, any  rules  and  regulations
     5  necessary  to implement the provisions of this act on its effective date
     6  are authorized and directed to be amended, repealed  and/or  promulgated
     7  on or before such date.
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