•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A08586 Summary:

BILL NOA08586B
 
SAME ASSAME AS S07107-B
 
SPONSORSimon
 
COSPNSRGunther, Gonzalez-Rojas, O'Donnell, Byrnes, Rosenthal L, Otis
 
MLTSPNSR
 
Add Art 82 §§82.01 - 82.15, Ment Hyg L
 
Relates to supported decision-making by people with intellectual, developmental, cognitive and psychosocial disabilities.
Go to top    

A08586 Actions:

BILL NOA08586B
 
12/22/2021referred to mental health
01/05/2022referred to mental health
03/22/2022amend and recommit to mental health
03/22/2022print number 8586a
05/06/2022amend and recommit to mental health
05/06/2022print number 8586b
05/09/2022reported referred to codes
05/23/2022reported referred to rules
05/24/2022reported
05/24/2022rules report cal.412
05/24/2022substituted by s7107b
 S07107 AMEND=B MANNION
 06/01/2021REFERRED TO DISABILITIES
 06/03/2021COMMITTEE DISCHARGED AND COMMITTED TO RULES
 06/03/2021ORDERED TO THIRD READING CAL.1510
 06/07/2021PASSED SENATE
 06/07/2021DELIVERED TO ASSEMBLY
 06/07/2021referred to mental health
 01/05/2022died in assembly
 01/05/2022returned to senate
 01/05/2022REFERRED TO DISABILITIES
 02/16/20221ST REPORT CAL.540
 02/17/20222ND REPORT CAL.
 02/28/2022ADVANCED TO THIRD READING
 03/21/2022AMENDED ON THIRD READING 7107A
 03/24/2022PASSED SENATE
 03/24/2022DELIVERED TO ASSEMBLY
 03/24/2022referred to mental health
 05/10/2022RECALLED FROM ASSEMBLY
 05/10/2022returned to senate
 05/10/2022VOTE RECONSIDERED - RESTORED TO THIRD READING
 05/10/2022AMENDED ON THIRD READING 7107B
 05/16/2022REPASSED SENATE
 05/16/2022RETURNED TO ASSEMBLY
 05/16/2022referred to codes
 05/24/2022substituted for a8586b
 05/24/2022ordered to third reading rules cal.412
 05/24/2022passed assembly
 05/24/2022returned to senate
 07/26/2022DELIVERED TO GOVERNOR
 07/26/2022SIGNED CHAP.481
Go to top

A08586 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8586B
 
SPONSOR: Simon
  TITLE OF BILL: An act to amend the mental hygiene law, in relation to supported deci- sion-making by people with intellectual, developmental, cognitive and psychosocial disabilities   PURPOSE OF THE BILL: This proposed legislation would add Article 82 to the Mental Hygiene Law, creating Supported Decision-Making as a less restrictive alterna- tive to guardianship. To promote autonomy and self-determination, this bill would legally recognize Supported Decision-Making Agreements, allowing for decision-making supports to be formalized by individuals in need of assistance in making decisions for themselves. It would create obligations and corresponding immunity from liability for third parties in order to effectuate supported decisions made in accordance with a Supported Decision-Making Agreement. The bill would authorize the Office for People with Developmental Disabilities to promulgate implementation regulations and would also allow for regulations to be promulgated by other state agencies serving a myriad of individuals who may also bene- fit by less restrictive decision-making support, such as the Office of Children and Family Services, Office of Mental Health, State Education Department, and the Office for the Aging.   SUMMARY OF PROVISIONS: The fifteen proposed subdivisions of Article 82 include: (1) a legislative purpose preamble; (2) definitions of terms used within the article; (3) provisions defining the presumption of an adult's capacity to enter into a supported decision-making agreement, and protections against using the adult's interest in or execution of a supported decision-mak- ing agreement as evidence of incapacity or the denial of services or benefits; (4) provisions defining the scope of the article, ensuring the continued availability of advance directives and access to personal information, preventing the participation of a supporter in conversations with third- party professionals from constituting a waiver of professional evidenti- ary privilege, and precluding the use of a supported decision-making agreement as a condition of participation in any activity, service, or program; (5) provisions defining the duties, responsibilities, and authority of supporters, and the limits of a supporter's role; (6) provisions describing the formation requirements of a supported decision-making agreement and setting the term of the agreement as effective until revoked by the decision-maker; (7) provisions on the requirements for revocation or amendment of a supported decision-making agreement, allowing for liberal changes to be made only by the decision-maker; (8) limitations on the eligibility of supporters, and process for resig- nation of a supporter, (9) provisions describing the requirement of a facilitation process for the extension of third-party obligations and liability protections; (10) provisions describing the form a supported decision-making agree- ment must take, including the additional requirements for extending third-party obligations and liability protections; (11) provisions describing the obligations on third parties to accept decisions made in accordance with any supported decision-making agree- ment that is validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Developmental Disabilities; (12) provisions limiting liability for third parties who accept deci- sions made in accordance with any supported decision-making agreement that was validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Develop- mental Disabilities;   EFFECTIVE DATE: This act shall take effect ninety days from the date that the regu- lations issued in accordance with this act appear in the New York State Register, or the date such regulations are adopted, whichever is later; and provided that the commissioner of mental hygiene shall notify the legislative bill drafting commission upon the occurrence of the appear- ance of the regulations in the New Yok State Register or the date such regulations are adopted, whichever is later, in order that the commis- sion may maintain an accurate and timely effective data base of the official text of laws of the state of New York in furtherance of effect- ing the provisions of section 44 of the legislative law and section 70-b of the public officers law.
Go to top

A08586 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8586--B
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 22, 2021
                                       ___________
 
        Introduced by M. of A. SIMON, GUNTHER, GONZALEZ-ROJAS, O'DONNELL, BYRNES
          --  (at  request of the Office for People with Developmental Disabili-
          ties) -- read once and referred to the Committee on Mental  Health  --
          recommitted  to  the  Committee  on  Mental  Health in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended  and  recommitted  to  said  committee  --  again
          reported  from  said  committee  with amendments, ordered reprinted as
          amended and recommitted to said committee
 
        AN ACT to amend the mental hygiene law, in relation to  supported  deci-
          sion-making  by people with intellectual, developmental, cognitive and
          psychosocial disabilities
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The mental hygiene law is amended by adding a new article
     2  82 to read as follows:
     3                                  ARTICLE 82
     4                          SUPPORTED DECISION-MAKING
     5  Section 82.01 Legislative findings and purpose.
     6          82.02 Definitions.
     7          82.03 Presumption of capacity.
     8          82.04 Scope.
     9          82.05 Duties, responsibilities, and authority of supporters.
    10          82.06 Formation and term of agreement.
    11          82.07 Revocation and amendment of agreement.
    12          82.08 Eligibility and resignation of supporters.
    13          82.09 Facilitation of agreement.
    14          82.10 Form of agreement.
    15          82.11 Legal effect of decisions made with support and third-par-
    16                  ty obligations.
    17          82.12 Limitations on liability.
    18          82.13 Supporter notice.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09657-08-2

        A. 8586--B                          2
 
     1          82.14 Reporting abuse, coercion, undue influence,  or  financial
     2                  exploitation.
     3          82.15 Rules and regulations.
     4  § 82.01 Legislative findings and purpose.
     5    (a)  The  legislature  finds  that  a person's right to make their own
     6  decisions is critical to their autonomy and  self-determination.  People
     7  with  intellectual,  developmental, cognitive and psychosocial disabili-
     8  ties are often denied that right because of stigma and outdated  beliefs
     9  about  their  capability. This right is denied, despite the reality that
    10  very few people make decisions entirely  on  their  own.  Everyone  uses
    11  supports,  as  do  people  with  disabilities; who may just need more or
    12  different kinds of supports.
    13    (b) The legislature further finds that the, now well recognized, prac-
    14  tice of supported decision-making is a way in  which  many  people  with
    15  disabilities  can  make  their  own decisions with the support they need
    16  from trusted persons in their lives, and that supported  decision-making
    17  can  be a less restrictive alternative to guardianship. Recognizing that
    18  supported decision-making can take a variety of forms,  the  legislature
    19  finds that a more formal process, resulting in a supported decision-mak-
    20  ing  agreement between the person with a disability (the decision-maker)
    21  and their supporter or supporters, can provide the basis  for  requiring
    22  third  parties,  who  might otherwise question a person's legal capacity
    23  because of their disability, to recognize their decisions  on  the  same
    24  basis  as others. When this more formal process is followed, people with
    25  disabilities can make choices confident that they will be  respected  by
    26  others  and  knowing they will be solely responsible for their own deci-
    27  sions.
    28    (c) The legislature further finds that supported  decision-making  and
    29  supported decision-making agreements should be encouraged when appropri-
    30  ate for persons with disabilities, and that the execution of a supported
    31  decision-making  agreement should not detrimentally impact the eligibil-
    32  ity of a person for other services, including adult protective services.
    33    (d) The legislature also strongly urges relevant  state  agencies  and
    34  civil society to research and develop appropriate and effective means of
    35  support for older persons with cognitive decline, persons with traumatic
    36  brain injuries, and persons with psychosocial disabilities, so that full
    37  legislative  recognition can also be accorded to the decisions made with
    38  supported decision-making agreements by persons  with  such  conditions,
    39  based  on a consensus about what kinds of support are most effective and
    40  how they can best be delivered.
    41  § 82.02 Definitions.
    42    When used in this article, the following terms shall have the  follow-
    43  ing  meaning,  unless the context or subject matter requires a different
    44  interpretation:
    45    (a) "abuse" encompasses physical abuse, sexual  abuse,  and  emotional
    46  abuse,  as  defined  in section four hundred seventy-three of the social
    47  services law.
    48    (b) "adult" means an individual eighteen years of age or older.
    49    (c) "advance directive" means a legally  recognized  written  or  oral
    50  instruction  by an adult relating to the provision of health care to the
    51  adult if and when they become incapacitated, including but  not  limited
    52  to  a  health  care  proxy, a consent to the issuance of an order not to
    53  resuscitate or other orders for life-sustaining treatment recorded in  a
    54  patient's  medical  record,  or  other  legally-recognized statements of
    55  wishes or beliefs.

        A. 8586--B                          3
 
     1    (d) "decision-maker" means an adult who  has  executed,  or  seeks  to
     2  execute, a supported decision-making agreement.
     3    (e)  "financial  exploitation"  has  the meaning given in section four
     4  hundred seventy-three of the social services law.
     5    (f) "good faith" means honest in fact and in the observance of reason-
     6  able standards of fair dealing.
     7    (g) "neglect" has the meaning defined in paragraph (d) of  subdivision
     8  one of section four hundred seventy-three of the social services law.
     9    (h)  "physical  coercion"  means  to  place  under  duress, menace, or
    10  threaten physical violence or imprisonment.
    11    (i) "supported decision-making" means a way by which a  decision-maker
    12  utilizes  support  from  trusted persons in their life, in order to make
    13  their own decisions about their life, including,  but  not  limited  to,
    14  decisions  related  to  where  and with whom the decision-maker wants to
    15  live; decisions about finances; the services, supports, and health  care
    16  the  decision-maker wants to receive; and where the decision-maker wants
    17  to work.
    18    (j) "supported decision-making agreement" is an agreement a  decision-
    19  maker  enters  into  with one or more supporters under this section that
    20  describes how the decision-maker uses supported decision-making to  make
    21  their  own decisions. Supported decision-making agreements can either be
    22  an informal arrangement  between  the  decision-maker  and  his  or  her
    23  supporter or supporters, or one that is in accordance with section 82.11
    24  of this article, which has been reviewed and signed by a facilitator.
    25    (k)  "supporter"  means  an  adult  who has voluntarily entered into a
    26  supported decision-making agreement with a decision-maker,  agreeing  to
    27  assist the decision-maker in making their own decisions as prescribed by
    28  the supported decision-making agreement, and who is not ineligible under
    29  section 82.08 of this article.
    30    (l)  "undue influence" means moral or mental coercion that leads some-
    31  one to carry out the wishes of another instead of their own because they
    32  are unable to refuse or resist.
    33    (m) "facilitator" means an individual  or  entity  authorized  by  the
    34  office  for  people  with developmental disabilities that works with and
    35  educates the decision-maker and his or her supporter or supporters about
    36  supported  decision-making  and  supported  decision-making   agreements
    37  authorized under this article.
    38  § 82.03 Presumption of capacity.
    39    (a) For the purposes of this article, every adult shall be presumed to
    40  have  the  capacity to enter into a supported decision-making agreement,
    41  unless that adult has a legal guardian, appointed by a court  of  compe-
    42  tent  jurisdiction,  whose  granted  authority  is  in conflict with the
    43  proposed supported decision-making agreement. This  presumption  may  be
    44  rebutted only by clear and convincing evidence.
    45    (b)  Capacity  shall  include  capacity  with  decision-making support
    46  and/or accommodations.
    47    (c) A diagnosis of a developmental or other  disability  or  condition
    48  shall not constitute evidence of incapacity.
    49    (d)  The  manner  in which an adult communicates with others shall not
    50  constitute evidence of incapacity.
    51    (e) Neither the execution of a supported decision-making agreement  by
    52  an  individual, nor the interest in or wish to execute a supported deci-
    53  sion-making agreement by an individual, nor the failure of an individual
    54  to execute a supported decision-making agreement may be used or  consid-
    55  ered  as  evidence  that  the  individual lacks capacity, or to deny the

        A. 8586--B                          4
 
     1  decision-maker benefits to which they are otherwise entitled,  including
     2  adult protective services.
     3    (f)  A decision-maker may make and execute a supported decision-making
     4  agreement, if the decision-maker understands that they  are  making  and
     5  executing  an  agreement  with their chosen supporters and that they are
     6  doing so voluntarily.
     7  § 82.04 Scope.
     8    (a) If a decision-maker voluntarily enters into a supported  decision-
     9  making agreement with one or more supporters, the decision-maker may, in
    10  the  agreement,  authorize  the  supporter to provide support to them in
    11  making their own decisions in areas  they  choose,  including,  but  not
    12  limited to: gathering information, understanding and interpreting infor-
    13  mation,  weighing  options and   alternatives to a decision, considering
    14  the consequences of making a decision or not making it, participating in
    15  conversations with third parties if the decision-maker  is  present  and
    16  requests  their  participation, communicating the decision-maker's deci-
    17  sion to third parties if the  decision-maker  is  present  and  requests
    18  their  participation, and providing the decision-maker support in imple-
    19  menting the decision-maker's decision.
    20    (b) Nothing  in  this  article,  nor  the  existence  of  an  executed
    21  supported  decision-making  agreement, shall preclude the decision-maker
    22  from acting independently of the supported decision-making agreement  or
    23  executing,  with  or  without  the  assistance  of  supporters  under  a
    24  supported decision-making agreement, a power  of  attorney  under  title
    25  fifteen  of  article  five  of  the general obligations law, health care
    26  proxy under article twenty-nine-C of the public  health  law,  or  other
    27  advance directive.
    28    (c)  Notwithstanding  the  existence  of  a  supported decision-making
    29  agreement, a decision-maker shall continue to have  unrestricted  access
    30  to their personal information without the assistance of a supporter.
    31    (d)  Notwithstanding  the  existence  of  a  supported decision-making
    32  agreement, a decision-maker may request and receive assistance in making
    33  any decision that is not covered  under  the  supported  decision-making
    34  agreement  at  any  time and from any person, regardless of whether that
    35  person is designated as a supporter  in  the  supported  decision-making
    36  agreement.
    37    (e)  A supported decision-making agreement made pursuant to this arti-
    38  cle may be evidence that  the  decision-maker  has  a  less  restrictive
    39  alternative to guardianship in place.
    40    (f)  The  availability  of supported decision-making agreements is not
    41  intended to limit the informal use of supported decision-making,  or  to
    42  preclude  judicial  consideration  of such informal arrangements as less
    43  restrictive alternatives to guardianship.
    44    (g) Execution of a supported decision-making agreement may  not  be  a
    45  condition of participation in any activity, service, or program.
    46    (h) If a decision-maker seeks from any person professional advice that
    47  would  be  otherwise covered by evidentiary privilege in accordance with
    48  sections forty-five hundred three, forty-five hundred  four,  forty-five
    49  hundred  seven,  forty-five  hundred eight and forty-five hundred ten of
    50  the civil practice law and rules, the inclusion in the conversation of a
    51  supporter authorized  by  the  supported  decision-making  agreement  to
    52  provide  support  in  the  area  in  which  the decision-maker seeks the
    53  professional advice shall not constitute a waiver of that privilege.
    54    (i) Notwithstanding any other provision of law to the contrary,  noth-
    55  ing  within this article shall be construed to prohibit eligibility of a
    56  decision-maker for receipt of services or supports that they would  have

        A. 8586--B                          5
 
     1  otherwise  been  entitled,  including  adult protective services, absent
     2  entering into a supported decision-making agreement under the provisions
     3  of this article.
     4    (j) A supported decision-making agreement made between a decision-mak-
     5  er  and his or her supporter or supporters after consultation and educa-
     6  tion, which is signed by a facilitator shall have the  legal  force  and
     7  effect authorized under section 82.11 of this article.
     8  § 82.05 Duties, responsibilities, and authority of supporters.
     9    (a) A supporter must:
    10    1.  respect  the  decision-maker's right to make a decision, even when
    11  the supporter disagrees with the decision or believes it is not  in  the
    12  decision-maker's best interests;
    13    2. act honestly, diligently, and in good faith;
    14    3.  act within the scope set forth in the executed supported decision-
    15  making agreement;
    16    4. avoid conflicts of interest;
    17    5. notify the decision-maker in writing, and in  a  manner  the  deci-
    18  sion-maker  can  understand,  of  the  supporter's intent to resign as a
    19  supporter; and
    20    6. participate in facilitation  and/or  education  programs  developed
    21  under  regulations  promulgated  by  the office for people with develop-
    22  mental disabilities in order to enter a formal supported decision-making
    23  agreement.
    24    (b) A supporter is prohibited from:
    25    1. making decisions for  the  decision-maker,  except  to  the  extent
    26  otherwise granted in an advance directive;
    27    2. exerting undue influence upon the decision-maker;
    28    3. physically coercing the decision-maker;
    29    4.  obtaining,  without the consent of the decision-maker, information
    30  acquired for a purpose other than assisting the decision-maker in making
    31  a decision authorized by the supported decision-making agreement;
    32    5. obtaining,  without  the  consent  of  the  decision-maker,  or  as
    33  expressly granted by the supported decision-making agreement, and accom-
    34  panied  by  an  appropriate  release,  nonpublic personal information as
    35  defined in 15 U.S.C. § 6809(4)(A), or clinical  records  or  information
    36  under subdivision (c) of section 33.13 of this chapter; and
    37    6.  communicating a decision-maker's decision to a third-party without
    38  the participation and presence of the decision-maker.
    39    (c) The relationship between a decision-maker and a supporter  is  one
    40  of  trust  and  confidence  and  serves  to preserve the decision-making
    41  authority of the decision-maker.
    42    (d) A supporter shall not be  considered  a  surrogate  or  substitute
    43  decision  maker  for the decision-maker and shall not have the authority
    44  to sign legal documents on behalf of  the  decision-maker  or  bind  the
    45  decision-maker  to  a  legal  agreement,  but  may, if such authority is
    46  expressly granted in the supported  decision-making  agreement,  provide
    47  co-signature  together with the decision-maker acknowledging the receipt
    48  of statements of rights and responsibilities in order to permit  partic-
    49  ipation  in  such  programs  or  activities  that the decision-maker has
    50  communicated a choice to participate in.
    51    (e) If expressly granted by the supported  decision-making  agreement,
    52  and  the decision-maker has signed an appropriate release, the supporter
    53  may assist the decision-maker in obtaining educational records under the
    54  Family Educational Rights and Privacy Act of 1974 (20 U.S.C.  §  1232g),
    55  protected  health information under the Health Insurance Portability and
    56  Accountability Act of  1996  (45  CFR  §§  164.502,  164.508),  clinical

        A. 8586--B                          6
 
     1  records  and  information under subdivision (c) of section 33.13 of this
     2  chapter, or patient information under  subdivisions  two  and  three  of
     3  section eighteen of the public health law.
     4    (f)  A  supporter shall ensure the information obtained under subdivi-
     5  sion (e) of this section is kept privileged and confidential, as  appli-
     6  cable, and is not subject to unauthorized access, use, or disclosure.
     7  § 82.06 Formation and term of agreement.
     8    (a)  An  adult may enter into a supported decision-making agreement at
     9  any time if the adult enters into the agreement voluntarily.
    10    (b) A decision-maker may sign a supported decision-making agreement in
    11  any manner, including  electronic  signatures  permitted  under  article
    12  three of the state technology law.
    13    (c)  A supported decision-making agreement formed under the provisions
    14  of this article shall remain in effect unless and until revoked  by  the
    15  decision-maker.
    16  § 82.07 Revocation and amendment of agreement.
    17    (a)  The  decision-maker  may  revoke all or part of a supported deci-
    18  sion-making agreement by notifying the supporters orally or in  writing,
    19  or  by any other act evincing a specific intent to revoke the agreement.
    20  The failure of the decision-maker to notify supporters shall not invali-
    21  date the revocation of all or  part  of  the  supported  decision-making
    22  agreement.
    23    (b)  A  decision-maker may amend a supported decision-making agreement
    24  at any time for any reason, subject to the requirements of this section.
    25  The decision-maker shall notify all supporters of any amendment made  to
    26  the  supported decision-making agreement, but the failure to do so shall
    27  not invalidate the amendment.
    28  § 82.08 Eligibility and resignation of supporters.
    29    (a) A supporter shall be any adult chosen by  the  decision-maker;  if
    30  the  supporter chosen by the decision-maker is an employee of a provider
    31  from whom the decision-maker receives services,  the  employee  and  the
    32  provider shall follow the requirements set out in regulations promulgat-
    33  ed  by  the  office for people with developmental disabilities, or other
    34  appropriate regulatory body  which  address  those  circumstances,  with
    35  attention  paid  to  relative  labor  law and employment obligations and
    36  possible conflicts of interest or the appearance of a conflict of inter-
    37  est.
    38    (b) An individual who has been chosen by the decision-maker  to  be  a
    39  supporter, or who has entered into a supported decision-making agreement
    40  as  a supporter, shall be deemed ineligible to act, or continue to serve
    41  as supporter upon the occurrence of any of the following:
    42    1. a court authorizes a protective order or restraining order  against
    43  the supporter on request of or on behalf of the decision-maker; or
    44    2. the local department of social services has found that the support-
    45  er  has  committed  abuse,  neglect, financial exploitation, or physical
    46  coercion against the decision-maker as such terms are defined in section
    47  82.02 of this article.
    48    (c) A supporter may resign as supporter by written or oral  notice  to
    49  the decision-maker and the remaining supporters.
    50    (d)  If the supported decision-making agreement includes more than one
    51  supporter or is amended to replace the supporter who is ineligible under
    52  subdivision (b) of this section or resigns under subdivision (c) of this
    53  section, the supported decision-making agreement shall survive  for  the
    54  remaining supporters, unless it is otherwise revoked under section 82.07
    55  of this article.

        A. 8586--B                          7
 
     1    (e)  If  the supported decision-making agreement does not include more
     2  than one supporter, and is not amended  to  replace  the  supporter  who
     3  becomes  ineligible  under  subdivision  (b)  of this section or resigns
     4  under subdivision (c) of this  section,  the  supported  decision-making
     5  agreement shall be considered terminated.
     6  § 82.09 Facilitation of agreement.
     7    The  provisions  of  section 82.11 and subdivisions (b) through (d) of
     8  section 82.12 of this article shall only apply in circumstances where  a
     9  decision  is  made by a decision-maker pursuant to a supported decision-
    10  making agreement created in accordance  with  this  article  where  such
    11  decision-maker and his or her supporter or supporters have worked with a
    12  facilitator,  such  supporter  or  supporters have followed a recognized
    13  supported decision-making facilitation or education process  as  defined
    14  and  prescribed by regulations promulgated by the office for people with
    15  developmental disabilities and such facilitator has signed  such  agree-
    16  ment.
    17  § 82.10 Form of agreement.
    18    (a)  A supported decision-making agreement may be in any form consist-
    19  ent with the requirements set forth in this article.
    20    (b) A supported decision-making agreement must:
    21    1. be in writing;
    22    2. be dated;
    23    3. designate the decision-maker, and at least one supporter;
    24    4. list the categories of decisions with which a supporter is  author-
    25  ized to assist the decision-maker;
    26    5.  list  the  kinds  of support that each supporter may give for each
    27  area in which they are designated as a supporter;
    28    6. contain an attestation that the supporters agree to honor the right
    29  of the decision-maker to make their own decisions in the ways and  areas
    30  specified in the agreement, respect the decision-maker's decisions, and,
    31  further, that they will not make decisions for the decision-maker;
    32    7.  state  that  the  decision-maker  may change, amend, or revoke the
    33  supported decision-making agreement at any time for any reason,  subject
    34  to the requirements of section 82.06 of this article;
    35    8. be signed by all designated supporters; and
    36    9. be executed or endorsed by the decision-maker in the presence of at
    37  least  two adult witnesses who are not also designated as supporters, or
    38  with the attestation of a notary public.
    39    (c) A supported decision-making agreement may:
    40    1. appoint more than one supporter;
    41    2. authorize a supporter to obtain personal information  as  described
    42  in subdivision (e) of section 82.05 of this article;
    43    3. authorize a supporter to share information with any other supporter
    44  or others named in the agreement; or
    45    4.  detail  any  other  limitations on the scope of a supporter's role
    46  that the decision-maker deems important.
    47    (d) In order to be subject to the  provisions  of  section  82.11  and
    48  subdivisions  (b)  through  (d)  of  section  82.12  of  this article, a
    49  supported decision-making agreement must also:
    50    1. be signed by a facilitator or educator;
    51    2. include a statement that the  supported  decision-making  agreement
    52  was  made  in accordance with a recognized facilitation and/or education
    53  process; and
    54    3. include an  attached  attestation  by  the  decision-maker  that  a
    55  particular  decision  has  been  made  in  accordance  with  the support
    56  described in the supported decision-making agreement.

        A. 8586--B                          8
 
     1  § 82.11 Legal effect of decisions made  with  support  and  third  party
     2            obligations.
     3    (a)  This  section  shall  apply  only  to  decisions made pursuant to
     4  supported decision-making agreements created  in  accordance  with  this
     5  article  and  following  a  recognized supported decision-making facili-
     6  tation or education process, as prescribed by regulations governing  the
     7  facilitation  and  education  processes  promulgated  by  the office for
     8  people with developmental disabilities.   Additionally,  such  decisions
     9  shall be signed by a facilitator.
    10    (b)  A  decision  or  request made or communicated by a decision-maker
    11  with the assistance of a supporter in accordance with the provisions  of
    12  a  supported  decision-making  agreement must, notwithstanding any other
    13  provision of law, be recognized as the decision or request of the  deci-
    14  sion-maker and may be enforced by the decision-maker in law or equity on
    15  the same basis as  all others.
    16    (c)  A  person,  entity,  or  agency required to recognize and honor a
    17  decision made pursuant to a supported decision-making agreement  author-
    18  ized  by  this  section  may  require  the  decision-maker to execute or
    19  endorse an attestation, as provided in paragraph  three  of  subdivision
    20  (d)  of section 82.10 of this article, as a condition of recognizing and
    21  honoring the decision.
    22    (d) A person, entity, or agency that receives  a  supported  decision-
    23  making  agreement  must  honor  a  decision  made in accordance with the
    24  agreement, unless the person, entity, or agency has substantial cause to
    25  believe the supported decision-making agreement has been revoked, or the
    26  decision-maker is being abused, coerced, unduly  influenced,  or  finan-
    27  cially  exploited  by the supporter, or that the decision will cause the
    28  decision-maker substantial and imminent physical or financial harm.
    29  § 82.12 Limitations on liability.
    30    (a) Subdivisions (b), (c) and (d) of this section shall apply only  to
    31  decisions  made pursuant to supported decision-making agreements created
    32  in accordance with this article which are signed by  a  facilitator  and
    33  following  a recognized supported decision-making facilitation or educa-
    34  tion process, as prescribed by regulations  governing  the  facilitation
    35  and education processes promulgated by the office for people with devel-
    36  opmental disabilities.
    37    (b)  A  person shall not be subject to criminal or civil liability and
    38  shall not be determined to have engaged in professional  misconduct  for
    39  an  act  or omission if the act or omission is done in good faith and in
    40  reliance on a decision made by  a  decision-maker  pursuant  to  a  duly
    41  executed  supported decision-making agreement created in accordance with
    42  this article.
    43    (c) Any health care provider that provides health care  based  on  the
    44  consent  of  a decision-maker, given with support or assistance provided
    45  through a duly executed supported decision-making agreement  created  in
    46  accordance  with  this article, shall be immune from any action alleging
    47  that the decision-maker lacked capacity  to  provide  informed  consent,
    48  unless  the  entity,  custodian, or organization had actual knowledge or
    49  notice that the decision-maker had revoked the supported decision-making
    50  agreement, or that the supporter had committed abuse, physical coercion,
    51  undue influence, or financial exploitation with respect to the  decision
    52  to grant consent.
    53    (d)  Any  public  or  private  entity, custodian, or organization that
    54  discloses personal information about a decision-maker in reliance on the
    55  terms of a duly executed supported decision-making agreement created  in
    56  accordance  with this article, to a supporter authorized by the terms of

        A. 8586--B                          9
 
     1  the supported decision-making agreement to assist the decision-maker  in
     2  accessing,  collecting,  or obtaining that information under subdivision
     3  (e) of section 82.05 of this article, shall be immune  from  any  action
     4  alleging  that it improperly or unlawfully disclosed such information to
     5  the supporter unless the entity, custodian, or organization  had  actual
     6  knowledge that the decision-maker had revoked such authorization.
     7    (e) This section may not be construed to provide immunity from actions
     8  alleging that a health care provider, or other third party, has done any
     9  of the following:
    10    1.  caused  personal  injury  as a result of a negligent, reckless, or
    11  intentional act;
    12    2. acted inconsistently with the expressed wishes of a decision-maker;
    13    3. failed to provide information to  either  decision-maker  or  their
    14  supporter that would be necessary for informed consent; or
    15    4. otherwise acted inconsistently with applicable law.
    16    (f)  The  existence  or  availability  of  a supported decision-making
    17  agreement does not relieve a health care provider, or other third party,
    18  of any legal obligation to provide services to individuals with disabil-
    19  ities, including the obligation to provide reasonable accommodations  or
    20  auxiliary  aids and services, including, but not limited to, interpreta-
    21  tion services and communication supports to individuals  with  disabili-
    22  ties  under  the  federal  Americans  with Disabilities Act (42 U.S.C. §
    23  12101).
    24  § 82.13 Supporter notice.
    25    (a) If any state or municipal law requires that an agency, entity,  or
    26  person  provide a prescribed notice to a decision-maker, and the agency,
    27  entity, or person  required  to  provide  such  notice  has  received  a
    28  supported decision-making agreement from a decision-maker that specifies
    29  that  a supporter is also to receive a copy of any such notice, then the
    30  agency, entity, or person in possession of the supported decision-making
    31  agreement shall also provide the specified supporter with a copy of such
    32  notice.
    33    (b) Notwithstanding the provisions of this subsection, if any state or
    34  municipal law requires that an  agency,  entity,  or  person  provide  a
    35  prescribed notice to a decision-maker and such notice includes protected
    36  information, including private health information or educational records
    37  protected  by state or federal law, such notice shall not be provided to
    38  the specified supporter unless the supported  decision-making  agreement
    39  is  accompanied  by  a  release  authorizing  the specified supporter to
    40  obtain the protected information.
    41  § 82.14 Reporting abuse, coercion, undue influence, or financial exploi-
    42            tation.
    43    (a) Any person who receives a copy of or an original  supported  deci-
    44  sion-making  agreement  and  has  cause to believe the decision-maker is
    45  being abused, physically coerced, or financially exploited by a support-
    46  er, may report  the  alleged  abuse,  physical  coercion,  or  financial
    47  exploitation  to  adult  protective  services  pursuant  to section four
    48  hundred seventy-three of the social services law.
    49    (b) Nothing in this section may be construed as eliminating or  limit-
    50  ing  a person's duty or requirement to report under any other statute or
    51  regulation.
    52  § 82.15 Rules and regulations.
    53    (a) The commissioner of the office for people with developmental disa-
    54  bilities shall promulgate within one year of the passage of this act the
    55  rules and regulations necessary to implement this article for adults who
    56  receive or are eligible to receive services that  are  operated,  certi-

        A. 8586--B                         10
 
     1  fied,  funded  or  approved  by the office for people with developmental
     2  disabilities.
     3    (b)  Additional regulations related to this article may be promulgated
     4  by state agencies whose service populations may benefit from the  imple-
     5  mentation of supported decision-making.
     6    §  2.  This  act  shall take effect ninety days from the date that the
     7  regulations issued in accordance with section one of this act appear  in
     8  the  New  York State Register, or the date such regulations are adopted,
     9  whichever is later; and   provided   that the   commissioner  of  mental
    10  hygiene  shall  notify the legislative bill drafting commission upon the
    11  occurrence  of  the  appearance of the regulations in the New York State
    12  Register or the date such regulations are adopted, whichever  is  later,
    13  in  order that the commission may maintain an accurate and timely effec-
    14  tive data base of the official text of  laws  of  the   state   of   New
    15  York in furtherance of effectuating the  provisions of section 44 of the
    16  legislative law and section 70-b of the public officers law.
Go to top