Bill Text: NY A04478 | 2017-2018 | General Assembly | Introduced

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Bill Title: Relates to conforming and improving the process for determining incapacity.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2018-01-03 - referred to codes [A04478 Detail]

Download: New_York-2017-A04478-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          4478
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    February 2, 2017
                                       ___________
        Introduced  by  M. of A. PRETLOW, GOTTFRIED -- read once and referred to
          the Committee on Health
        AN ACT to amend the public health law and the surrogate's  court  proce-
          dure  act,  in  relation  to  conforming and improving the process for
          determining incapacity
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivisions  2,  3, 4, 5, 6 and 7 of section 2983 of the
     2  public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
     3    § 2. Subdivision 1 of section 2983 of the public health law, as  added
     4  by  chapter 752 of the laws of 1990, paragraph (b) as amended by chapter
     5  23 of the laws of 1994 and paragraph (c) as amended by section 7 of part
     6  J of chapter 56 of the laws of 2012, is amended to read as follows:
     7    1. [Determination] Initial determination by attending physician.  [(a)
     8  A]  An  initial  determination  that  a principal lacks capacity to make
     9  health care decisions shall be made by  the  attending  physician  to  a
    10  reasonable  degree of medical certainty. The determination shall be made
    11  in writing and shall contain such attending physician's opinion  regard-
    12  ing  the  cause  and nature of the principal's incapacity as well as its
    13  extent and probable duration. The determination shall be included in the
    14  patient's medical record. [For a decision to withdraw or withhold  life-
    15  sustaining  treatment,  the  attending  physician who makes the determi-
    16  nation that a principal lacks capacity to  make  health  care  decisions
    17  must  consult with another physician to confirm such determination. Such
    18  consultation shall also be included within the patient's medical record]
    19  A physician who has been appointed as a patient's agent shall  not  make
    20  the  determination  of  the patient's capacity to make health care deci-
    21  sions.
    22    2. Concurring determinations for life-sustaining treatment  decisions.
    23  For  a  decision  to withdraw or withhold life-sustaining treatment, the
    24  following shall apply:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09246-01-7
        A. 4478                             2
     1    (a) The initial determination that a patient lacks capacity  shall  be
     2  subject to a concurring determination, independently made by a health or
     3  social  services  practitioner. A concurring determination shall include
     4  an assessment of the cause and extent of the  patient's  incapacity  and
     5  the  likelihood  that  the patient will regain decision-making capacity,
     6  and shall be included in the patient's medical record.  Hospitals  shall
     7  adopt  written  policies  identifying  the  training  and credentials of
     8  health or social services practitioners qualified to provide  concurring
     9  determinations of incapacity conducted for hospital patients.
    10    (b)  If  an  attending physician of a patient in a general hospital or
    11  mental hygiene facility determines that a patient lacks capacity because
    12  of mental illness, [the attending physician who makes the  determination
    13  must  be,  or  must  consult, for the purpose of confirming the determi-
    14  nation, with a qualified psychiatrist]  either  such  physician  or  the
    15  concurring practitioner must have the following qualifications: a physi-
    16  cian licensed to practice medicine in New York state, who is a diplomate
    17  or  eligible  to  be  certified  by the American Board of Psychiatry and
    18  Neurology or who is certified  by  the  American  Osteopathic  Board  of
    19  Neurology and Psychiatry or is eligible to be certified by that board. A
    20  record  of  such consultation shall be included in the patient's medical
    21  record.
    22    (c) If the attending physician determines that a patient lacks capaci-
    23  ty because of a developmental disability, [the attending  physician  who
    24  makes  the  determination  must  be, or must consult, for the purpose of
    25  confirming the determination, with] either such physician or the concur-
    26  ring practitioner must have the following qualifications:    either  (i)
    27  for  a  patient  in a hospital, a health or social services practitioner
    28  qualified by training  or  experience  to  make  such  determination  in
    29  accordance  with  the  written policies adopted by the hospital; or (ii)
    30  for a patient in any setting, a physician or clinical  psychologist  who
    31  either is employed by a developmental disabilities services office named
    32  in section 13.17 of the mental hygiene law, or who has been employed for
    33  a minimum of two years to render care and service in a facility operated
    34  or licensed by the office for people with developmental disabilities, or
    35  has  been  approved by the commissioner of developmental disabilities in
    36  accordance with regulations promulgated by such commissioner. Such regu-
    37  lations shall require that a physician or clinical psychologist  possess
    38  specialized training or three years experience in treating developmental
    39  disabilities.  A  record  of  such consultation shall be included in the
    40  patient's medical record.
    41    [(d) A physician who has been appointed as a patient's agent shall not
    42  make the determination of the patient's capacity  to  make  health  care
    43  decisions.]
    44    §  3.  Subdivision  3  of  section 2994-c of the public health law, as
    45  added by chapter 8 of the laws of 2010,  paragraph  (b)  as  amended  by
    46  chapter  167  of the laws of 2011, subparagraph (ii) of paragraph (c) as
    47  amended by section 8 of part J of chapter 56 of the  laws  of  2012,  is
    48  amended to read as follows:
    49    3.  Concurring determinations for life-sustaining treatment decisions.
    50  For a decision to withdraw or withhold life-sustaining  treatment,  then
    51  the  following  shall apply: (a) An initial determination that a patient
    52  lacks decision-making capacity shall be subject to a concurring determi-
    53  nation, independently made, [where required by this  subdivision]  by  a
    54  health  or  social  services practitioner employed or otherwise formally
    55  affiliated with the hospital. A concurring determination  shall  include
    56  an  assessment  of  the cause and extent of the patient's incapacity and
        A. 4478                             3
     1  the likelihood that the patient will  regain  decision-making  capacity,
     2  and  shall  be included in the patient's medical record. Hospitals shall
     3  adopt written policies  identifying  the  training  and  credentials  of
     4  health  or social services practitioners qualified to provide concurring
     5  determinations of incapacity.
     6    (b) [(i) In a residential health care facility,  a  health  or  social
     7  services  practitioner employed by or otherwise formally affiliated with
     8  the facility must independently determine whether an adult patient lacks
     9  decision-making capacity.
    10    (ii) In a general hospital a health or  social  services  practitioner
    11  employed  by  or  otherwise  formally  affiliated with the facility must
    12  independently determine whether an adult patient  lacks  decision-making
    13  capacity  if  the  surrogate's decision concerns the withdrawal or with-
    14  holding of life-sustaining treatment.
    15    (iii)] With respect to decisions regarding hospice care for a  patient
    16  in a general hospital or residential health care facility, the health or
    17  social  services  practitioner must be employed by or otherwise formally
    18  affiliated with the general hospital or residential health care  facili-
    19  ty.
    20    (c) (i) If the attending physician makes an initial determination that
    21  a  patient  lacks  decision-making  capacity  because of mental illness,
    22  either such physician or  the  concurring  practitioner  must  have  the
    23  following qualifications[, or another physician with the following qual-
    24  ifications  must independently determine whether the patient lacks deci-
    25  sion-making capacity]: a physician licensed to practice medicine in  New
    26  York state, who is a diplomate or eligible to be certified by the Ameri-
    27  can  Board of Psychiatry and Neurology or who is certified by the Ameri-
    28  can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
    29  certified by that board. A record of such consultation shall be included
    30  in the patient's medical record.
    31    (ii)  If the attending physician makes an initial determination that a
    32  patient lacks decision-making capacity because of a developmental  disa-
    33  bility,  either  such physician or the concurring practitioner must have
    34  the following qualifications[, or another professional with the  follow-
    35  ing  qualifications  must  independently  determine  whether the patient
    36  lacks decision-making capacity]: either (A) a health or social  services
    37  practitioner  qualified  by training or experience to make such determi-
    38  nation in accordance with the written policies adopted by the  hospital,
    39  or  (B) a physician or clinical psychologist who either is employed by a
    40  developmental disabilities services office named in section 13.17 of the
    41  mental hygiene law, or who has been employed for a minimum of two  years
    42  to  render  care  and  service in a facility operated or licensed by the
    43  office for people with developmental disabilities, or has been  approved
    44  by  the  commissioner  of  developmental disabilities in accordance with
    45  regulations promulgated by such  commissioner.  Such  regulations  shall
    46  require  that  a  physician or clinical psychologist possess specialized
    47  training or three years experience in treating  developmental  disabili-
    48  ties.  A  record of such consultation shall be included in the patient's
    49  medical record.
    50    (d) If an attending physician has determined that  the  patient  lacks
    51  decision-making  capacity  and  if the health or social services practi-
    52  tioner consulted for  a  concurring  determination  disagrees  with  the
    53  attending physician's determination, the matter shall be referred to the
    54  ethics review committee if it cannot otherwise be resolved.
    55    § 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
    56  subdivision  3 as added by chapter 8 of the laws of 2010 and subdivision
        A. 4478                             4
     1  4 as amended by section 131 of subpart B of part C of chapter 62 of  the
     2  laws of 2011, are amended to read as follows:
     3    3.  Consent by a surrogate shall be governed by article twenty-nine-CC
     4  of this chapter, except that[: (a) a second  determination  of  capacity
     5  shall  be made by a health or social services practitioner; and (b)] the
     6  authority  of  the  ethics  review  committee  set  forth   in   article
     7  twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
     8  issued in a hospital or hospice.
     9    4. (a) When the concurrence of a second [physician] health  or  social
    10  services  practitioner  is  sought  to  fulfill the requirements for the
    11  issuance of a nonhospital order not to resuscitate  for  patients  in  a
    12  correctional facility, such second [physician] health or social services
    13  practitioner  shall  be  selected  by  the  chief medical officer of the
    14  department of corrections and community supervision or his or her desig-
    15  nee.
    16    (b) When the concurrence of a  second  [physician]  health  or  social
    17  services  practitioner  is  sought  to  fulfill the requirements for the
    18  issuance of a nonhospital order not to  resuscitate  for  [hospice  and]
    19  home  care  patients,  such second [physician] health or social services
    20  practitioner shall be selected  [by  the  hospice  medical  director  or
    21  hospice  nurse coordinator designated by the medical director or] by the
    22  home care services agency director of patient care services[, as  appro-
    23  priate to the patient].
    24    §  5.  Paragraph  (a) of subdivision 4 of section 1750-b of the surro-
    25  gate's court procedure act, as amended by chapter 198  of  the  laws  of
    26  2016, is amended to read as follows:
    27    (a)  The attending physician, as defined in subdivision two of section
    28  twenty-nine hundred eighty of the  public  health  law,  [must  confirm]
    29  shall  initially  determine  to a reasonable degree of medical certainty
    30  that the person who is intellectually disabled lacks  capacity  to  make
    31  health  care decisions.   The determination thereof shall be included in
    32  the person who is intellectually disabled's medical  record,  and  shall
    33  contain  such  attending  physician's  opinion  regarding  the cause and
    34  nature of the person who is intellectually disabled's incapacity as well
    35  as its extent and probable duration. The attending physician  who  makes
    36  [the confirmation] such initial determination shall consult with another
    37  physician, or a licensed psychologist, to further confirm the person who
    38  is  intellectually  disabled's lack of capacity.  [The] If the attending
    39  physician makes an initial determination that a patient  lacks  capacity
    40  to  make  health care decisions because of intellectual disability, then
    41  the attending physician [who makes the confirmation,] or  the  physician
    42  or   licensed   psychologist   with   whom   the   attending   physician
    43  consults[,]either (i) for a patient in a general  hospital,  residential
    44  health  care facility or hospice, must [(i)] be qualified by training or
    45  experience to make  such  determination,  in  accordance  with  policies
    46  adopted  by  the  general  hospital, residential health care facility or
    47  hospice; or (ii) for a patient in any setting, must (A) be employed by a
    48  developmental disabilities services office named in section 13.17 of the
    49  mental hygiene law or employed by the office for  people  with  develop-
    50  mental  disabilities to provide treatment and care to people with devel-
    51  opmental disabilities, or [(ii)] (B) have been employed for a minimum of
    52  two years to render care and service in a facility or program  operated,
    53  licensed or authorized by the office for people with developmental disa-
    54  bilities,  or  [(iii)] (C) have been approved by the commissioner of the
    55  office for people with developmental  disabilities  in  accordance  with
    56  regulations  promulgated  by  such  commissioner. Such regulations shall
        A. 4478                             5
     1  require that a physician or licensed  psychologist  possess  specialized
     2  training  or three years experience in treating intellectual disability.
     3  A record of such consultation shall be included in  the  person  who  is
     4  intellectually disabled's medical record.
     5    §  6.  Subdivision  4  of  section  2982  of the public health law, as
     6  amended by chapter 370 of the laws  of  1991,  is  amended  to  read  as
     7  follows:
     8    4.  Priority  over other surrogates. Health care decisions by an agent
     9  on a principal's behalf pursuant to this  article  shall  have  priority
    10  over  decisions by any other person, except as otherwise provided in the
    11  health care proxy or in subdivision [five] six of section  two  thousand
    12  nine hundred eighty-three of this article.
    13    §  7. Subdivision 2 of section 2984 of the public health law, as added
    14  by chapter 752 of the laws of 1990, is amended to read as follows:
    15    2. A health care provider shall comply with health care decisions made
    16  by an agent in good faith under a health care proxy to the  same  extent
    17  as  if  such  decisions  had  been made by the principal, subject to any
    18  limitations in the health care proxy and pursuant to the  provisions  of
    19  subdivision [five] six of section two thousand nine hundred eighty-three
    20  of this article.
    21    §  8.    Paragraph  (b) of subdivision 7 of section 2983 of the public
    22  health law, as added by chapter 752 of the laws of 1990 and such  subdi-
    23  vision  as  renumbered by section one of this act, is amended to read as
    24  follows:
    25    (b) The notice requirements set forth in subdivision [three]  four  of
    26  this section shall not apply to the confirmation required by this subdi-
    27  vision.
    28    §  9.   This act shall take effect on the ninetieth day after it shall
    29  have become a law, provided that the amendments to article 29-C  of  the
    30  public  health  law  made  by section two of this act shall apply to the
    31  decisions made pursuant to health care  proxies  created  prior  to  the
    32  effective date of this act as well as those created thereafter.