Makes technical, minor and coordinating amendments regarding health care agents and proxies, decisions under the family health care decisions act, and nonhospital orders not to resuscitate.
STATE OF NEW YORK
________________________________________________________________________
5327
2021-2022 Regular Sessions
IN SENATE
March 2, 2021
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to making technical,
minor and coordinating amendments regarding health care agents and
proxies, decisions under the family health care decisions act, and
nonhospital orders not to resuscitate
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of subdivision 1 of section 2981 of the
2 public health law, as added by chapter 752 of the laws of 1990, is
3 amended to read as follows:
4 (b) For the purposes of this section, every adult shall be presumed
5 competent to appoint a health care agent unless such person has been
6 adjudged incompetent or otherwise adjudged not competent to appoint a
7 health care agent, or unless a [committee or] guardian of the person has
8 been appointed for the adult pursuant to article [seventy-eight] eight-
9 y-one of the mental hygiene law or article seventeen-A of the surro-
10 gate's court procedure act.
11 § 2. Subdivision 2 of section 2982 of the public health law, as
12 amended by chapter 230 of the laws of 2004, is amended to read as
13 follows:
14 2. Decision-making standard. After consultation with a licensed physi-
15 cian, registered nurse, physician assistant, nurse practitioner,
16 licensed psychologist, licensed master social worker, or a licensed
17 clinical social worker, the agent shall make health care decisions: (a)
18 in accordance with the principal's wishes, including the principal's
19 religious and moral beliefs; or (b) if the principal's wishes are not
20 reasonably known and cannot with reasonable diligence be ascertained, in
21 accordance with the principal's best interests; provided, however, that
22 if the principal's wishes regarding the administration of artificial
23 nutrition and hydration are not reasonably known and cannot with reason-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00325-01-1
S. 5327 2
1 able diligence be ascertained, the agent shall not have the authority to
2 make decisions regarding these measures.
3 § 3. Subdivision 3 of section 2983 of the public health law, as
4 amended by chapter 342 of the laws of 2018, is amended to read as
5 follows:
6 3. Notice of determination. Notice of a determination that a principal
7 lacks capacity to make health care decisions shall promptly be given:
8 (a) to the principal, orally and in writing, where there is any indi-
9 cation of the principal's ability to comprehend such notice; (b) to the
10 agent; (c) if the principal is in or is transferred from a mental
11 hygiene facility, to the facility director; and (d) to the [conservator
12 for, or committee of, the principal] guardian, if any.
13 § 4. The opening paragraph of section 2992 of the public health law,
14 as amended by chapter 93 of the laws of 2014, is amended to read as
15 follows:
16 The health care provider[, the conservator for, or committee] of the
17 principal under article eighty-one of the mental hygiene law or article
18 seventeen-A of the surrogate's court procedure act, members of the prin-
19 cipal's family, a close friend of the principal as defined in subdivi-
20 sion [five] four of section [two thousand nine] twenty-nine hundred
21 [sixty-one] ninety-four-a of this chapter, or the commissioner [of
22 health], the commissioner of mental health, or the commissioner of
23 developmental disabilities may commence a special proceeding pursuant to
24 article four of the civil practice law and rules, in a court of compe-
25 tent jurisdiction, with respect to any dispute arising under this arti-
26 cle, including, but not limited to, a proceeding to:
27 § 5. Section 2993 of the public health law, as amended by chapter 672
28 of the laws of 2019, is amended to read as follows:
29 § 2993. Regulations. The commissioner [of health], in consultation
30 with the commissioners of the office of mental health and the office for
31 people with developmental disabilities, shall establish such regulations
32 as may be necessary for the implementation of this article, subject to
33 the provisions of subdivision two of section [two thousand nine] twen-
34 ty-nine hundred ninety-one of this article.
35 § 6. Subdivisions 17 and 26 of section 2994-a of the public health
36 law, as added by chapter 8 of the laws of 2010, are amended to read as
37 follows:
38 17. "Health or social [service] services practitioner" means a regis-
39 tered professional nurse, nurse practitioner, physician, physician
40 assistant, psychologist, licensed master social worker or licensed clin-
41 ical social worker, licensed or certified pursuant to the education law
42 acting within his or her scope of practice.
43 26. "Person connected with the case" means the patient, any person on
44 the surrogate list, a parent or guardian of a minor patient, [the] a
45 hospital administrator, an attending physician, any other health or
46 social services practitioner who is or has been directly involved in the
47 patient's care, and any duly authorized state agency, including the
48 facility director or regional director for a patient transferred from a
49 mental hygiene facility and the facility director for a patient trans-
50 ferred from a correctional facility.
51 § 7. The opening paragraph of subdivision 3 of section 2994-b of the
52 public health law, as amended by chapter 708 of the laws of 2019, is
53 amended to read as follows:
54 Prior to seeking or relying upon a health care decision by a surrogate
55 for a patient under this article, if the attending practitioner has
56 reason to believe that the patient has a history of receiving services
S. 5327 3
1 for [mental retardation or] a developmental disability; it reasonably
2 appears to the attending practitioner that the patient has [mental
3 retardation or] a developmental disability; or the practitioner has
4 reason to believe that the patient has been transferred from a mental
5 hygiene facility operated or licensed by the office of mental health,
6 then such physician, nurse practitioner or physician assistant shall
7 make reasonable efforts to determine whether paragraphs (a), (b) or (c)
8 of this subdivision are applicable:
9 § 8. Subdivision 3 of section 2994-e of the public health law, as
10 amended by chapter 708 of the laws of 2019, is amended to read as
11 follows:
12 3. Decision-making standards and procedures for emancipated minor
13 patient. (a) If an attending practitioner determines that a patient is
14 an emancipated minor patient with decision-making capacity and documents
15 the basis for such determination in the patient's medical record, the
16 patient shall have the authority to decide about life-sustaining treat-
17 ment. Such authority shall include a decision to withhold or withdraw
18 life-sustaining treatment if an attending practitioner and the ethics
19 review committee determine that the decision accords with the standards
20 for surrogate decisions for adults, and the ethics review committee
21 approves the decision.
22 (b) If the hospital can with reasonable efforts ascertain the identity
23 of the parents or guardian of an emancipated minor patient, the hospital
24 shall make diligent efforts to notify such persons, and documents such
25 diligent efforts in the patient's medical record, prior to withholding
26 or withdrawing life-sustaining treatment pursuant to this subdivision.
27 § 9. Subparagraph (iv) of paragraph (b) of subdivision 4 of section
28 2994-m of the public health law, as amended by chapter 708 of the laws
29 of 2019, is amended to read as follows:
30 (iv) Following ethics review committee consideration of a case
31 concerning the withdrawal or withholding of life-sustaining treatment,
32 treatment shall not be withdrawn or withheld until the hospital makes
33 diligent efforts to inform the persons identified in subparagraph (iii)
34 of this paragraph have been informed of the committee's response to the
35 case and documents such diligent efforts in the patient's medical
36 record.
37 § 10. Section 2994-u of the public health law, as added by chapter 8
38 of the laws of 2010, is amended to read as follows:
39 § 2994-u. Rights to be publicized. The commissioner shall prepare a
40 statement summarizing the rights, duties, and requirements of this arti-
41 cle and shall require that a copy of such statement be furnished to
42 [patients] a patient or to [persons on] the surrogate [list known to the
43 hospital], or to the [parents or guardians] parent or guardian of a
44 minor [patients] patient, at or prior to admission to the hospital, or
45 within a reasonable time thereafter, and to [each member of the hospi-
46 tal's staff directly involved with patient care] any person on the
47 surrogate list who requests a copy of such statement from the hospital.
48 The statement shall also be made available to the hospital clinical
49 staff.
50 § 11. The commissioner of health shall revise the statement of rights
51 that hospitals are required to post (known as the Patient's Bill of
52 Rights) pursuant to paragraph (g) of subdivision 1 of section 2803 of
53 the public health law, by replacing the clause regarding orders not to
54 resuscitate with a statement that more generally informs patients of
55 their right to receive from the hospital upon admission, and upon
56 request, a more complete statement of their rights with respect to
S. 5327 4
1 deciding about health care, including appointing a health care agent,
2 consenting to do-not-resuscitate orders and making other life-sustaining
3 treatment decisions. The clause should also state in substance that the
4 hospital will also provide such statement upon request to any family
5 member or friend of a patient who lacks decision-making capacity.
6 § 12. Subdivisions 12 and 13 of section 2994-aa of the public health
7 law, subdivision 12 as amended by chapter 672 of the laws of 2019 and
8 subdivision 13 as amended by chapter 167 of the laws of 2011, are
9 amended to read as follows:
10 12. "Mental hygiene facility" means a residential facility operated or
11 licensed by the office of mental health [or the office for people with
12 developmental disabilities].
13 13. "Nonhospital order not to resuscitate" means an order that directs
14 emergency medical services personnel, hospice personnel, home care
15 services agency personnel and hospital emergency services personnel not
16 to attempt cardiopulmonary resuscitation in the event a patient suffers
17 cardiac or respiratory arrest.
18 § 13. Subdivisions 2 and 6 of section 2994-dd of the public health
19 law, as amended by chapter 708 of the laws of 2019, are amended to read
20 as follows:
21 2. A nonhospital order not to resuscitate shall be issued upon a stan-
22 dard form prescribed by the commissioner. [The commissioner shall also
23 develop a] A standard bracelet or other article that may be worn by a
24 patient with a nonhospital order not to resuscitate to identify that
25 status; provided, however, that no person may require a patient to wear
26 such a bracelet and that no person may require a patient to wear such a
27 bracelet as a condition for honoring a nonhospital order not to resusci-
28 tate or for providing health care services.
29 6. The commissioner may authorize the use of one or more alternative
30 forms for issuing a nonhospital order not to resuscitate (in place of
31 the standard form prescribed by the commissioner under subdivision two
32 of this section). Such alternative form or forms may also be used to
33 issue a non-hospital do not intubate order. Any such alternative forms
34 intended for use for persons with developmental disabilities or persons
35 with mental illness who are incapable of making their own health care
36 decisions or who have a guardian of the person appointed pursuant to
37 article eighty-one of the mental hygiene law or article seventeen-A of
38 the surrogate's court procedure act must also be approved by the commis-
39 sioner of developmental disabilities or the commissioner of mental
40 health, as appropriate. An alternative form under this subdivision shall
41 otherwise conform with applicable federal and state law. This subdivi-
42 sion does not limit, restrict or impair the use of an alternative form
43 for issuing an order not to resuscitate in a general hospital or resi-
44 dential health care facility under article twenty-eight of this chapter
45 or a hospital under subdivision ten of section 1.03 of the mental
46 hygiene law or a developmental disabilities services office under
47 section 13.17 of the mental hygiene law.
48 § 14. Section 2994-gg of the public health law, as added by chapter 8
49 of the laws of 2010, is amended to read as follows:
50 § 2994-gg. Immunity. No person shall be subjected to criminal prose-
51 cution or civil liability, or be deemed to have engaged in unprofes-
52 sional conduct, for honoring reasonably and in good faith pursuant to
53 this [section] article a nonhospital order not to resuscitate, for
54 disregarding a nonhospital order pursuant to section twenty-nine hundred
55 ninety-four-ee of this article, or for other actions taken reasonably
56 and in good faith pursuant to this [section] article.
S. 5327 5
1 § 15. This act shall take effect on the ninetieth day after it shall
2 have become a law, provided that the amendments to article 29-C of the
3 public health law shall apply to decisions made pursuant to health care
4 proxies created prior to the effective date of this act as well as those
5 created thereafter.
