Bill Text: NY A04525 | 2019-2020 | General Assembly | Introduced


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

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2019-02-28 - reported referred to codes [A04525 Detail]

Download: New_York-2019-A04525-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4525
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 4, 2019
                                       ___________
        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
     4  amended  by  chapter  342  of  the  laws  of 2018, is amended to read as
     5  follows:
     6    1. [Determination] Initial determination  by  attending  physician  or
     7  attending  nurse  practitioner.  [(a) A] An initial determination that a
     8  principal lacks capacity to make health care decisions shall be made  by
     9  the  attending physician or attending nurse practitioner to a reasonable
    10  degree of medical certainty. The determination shall be made in  writing
    11  and  shall contain such attending physician's or attending nurse practi-
    12  tioner's opinion regarding the cause and nature of the principal's inca-
    13  pacity as well as its extent and probable  duration.  The  determination
    14  shall  be  included  in the patient's medical record. [For a decision to
    15  withdraw or withhold life-sustaining treatment, the attending  physician
    16  or attending nurse practitioner who makes the determination that a prin-
    17  cipal  lacks  capacity  to  make health care decisions must consult with
    18  another physician or nurse practitioner to confirm  such  determination.
    19  Such  consultation  shall  also be included within the patient's medical
    20  record.] A physician who has been appointed as a patient's  agent  shall
    21  not make the determination of the patient's capacity to make health care
    22  decisions.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08610-01-9

        A. 4525                             2
     1    2.  Concurring determinations for life-sustaining treatment decisions.
     2  For a decision to withdraw or withhold  life-sustaining  treatment,  the
     3  following shall apply:
     4    (a)  The  initial determination that a patient lacks capacity shall be
     5  subject to a concurring determination, independently made by a health or
     6  social services practitioner. A concurring determination  shall  include
     7  an  assessment  of  the cause and extent of the patient's incapacity and
     8  the likelihood that the patient will  regain  decision-making  capacity,
     9  and  shall  be included in the patient's medical record. Hospitals shall
    10  adopt written policies  identifying  the  training  and  credentials  of
    11  health  or social services practitioners qualified to provide concurring
    12  determinations of incapacity conducted for hospital patients.
    13    (b) If an attending physician or attending  nurse  practitioner  of  a
    14  patient in a general hospital or mental hygiene facility determines that
    15  a  patient  lacks  capacity  because  of  mental illness, [the attending
    16  physician or attending nurse practitioner who  makes  the  determination
    17  must  be,  or  must  consult, for the purpose of confirming the determi-
    18  nation, with a qualified psychiatrist]  either  such  physician  or  the
    19  concurring practitioner must have the following qualifications: a physi-
    20  cian licensed to practice medicine in New York state, who is a diplomate
    21  or  eligible  to  be  certified  by the American Board of Psychiatry and
    22  Neurology or who is certified  by  the  American  Osteopathic  Board  of
    23  Neurology and Psychiatry or is eligible to be certified by that board. A
    24  record  of  such consultation shall be included in the patient's medical
    25  record.
    26    (c) If the attending physician or attending nurse practitioner  deter-
    27  mines that a patient lacks capacity because of a developmental disabili-
    28  ty,  [the  attending physician or attending nurse practitioner who makes
    29  the determination must be, or must consult, for the purpose of  confirm-
    30  ing  the  determination, with] either such physician, nurse practitioner
    31  or the concurring practitioner must have the  following  qualifications:
    32  either  (i)  for  a  patient  in a hospital, a health or social services
    33  practitioner qualified by training or experience to make  such  determi-
    34  nation  in accordance with the written policies adopted by the hospital;
    35  or (ii) for a patient in any setting, a physician, nurse practitioner or
    36  clinical psychologist who either is employed by a developmental disabil-
    37  ities services office named in section 13.17 of the mental hygiene  law,
    38  or  who  has been employed for a minimum of two years to render care and
    39  service in a facility operated or licensed by the office for people with
    40  developmental disabilities, or has been approved by the commissioner  of
    41  developmental disabilities in accordance with regulations promulgated by
    42  such  commissioner.  Such  regulations  shall  require that a physician,
    43  nurse practitioner or clinical psychologist possess specialized training
    44  or three years experience  in  treating  developmental  disabilities.  A
    45  record  of  such consultation shall be included in the patient's medical
    46  record.
    47    [(d) A physician or nurse practitioner who has  been  appointed  as  a
    48  patient's agent shall not make the determination of the patient's capac-
    49  ity to make health care decisions.]
    50    §  3.  Subdivision  3  of  section 2994-c of the public health law, as
    51  amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
    52  follows:
    53    3.  Concurring determinations for life-sustaining treatment decisions.
    54  For a decision to withdraw or withhold life-sustaining  treatment,  then
    55  the  following  shall apply: (a) An initial determination that a patient
    56  lacks decision-making capacity shall be subject to a concurring determi-

        A. 4525                             3
     1  nation, independently made, [where required by this  subdivision]  by  a
     2  health  or  social  services practitioner employed or otherwise formally
     3  affiliated with the hospital. 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.
    10    (b) [(i) In a residential health care facility,  a  health  or  social
    11  services  practitioner employed by or otherwise formally affiliated with
    12  the facility must independently determine whether an adult patient lacks
    13  decision-making capacity.
    14    (ii) In a general hospital a health or  social  services  practitioner
    15  employed  by  or  otherwise  formally  affiliated with the facility must
    16  independently determine whether an adult patient  lacks  decision-making
    17  capacity  if  the  surrogate's decision concerns the withdrawal or with-
    18  holding of life-sustaining treatment.
    19    (iii)] With respect to decisions regarding hospice care for a  patient
    20  in a general hospital or residential health care facility, the health or
    21  social  services  practitioner must be employed by or otherwise formally
    22  affiliated with the general hospital or residential health care  facili-
    23  ty.
    24    (c)  (i)  If  the  attending physician or attending nurse practitioner
    25  makes an initial determination  that  a  patient  lacks  decision-making
    26  capacity because of mental illness, either such physician or the concur-
    27  ring  practitioner  must  have the following qualifications[, or another
    28  physician with the following qualifications must independently determine
    29  whether  the  patient  lacks  decision-making  capacity]:  a   physician
    30  licensed  to  practice medicine in New York state, who is a diplomate or
    31  eligible to be certified by the American Board of Psychiatry and Neurol-
    32  ogy or who is certified by the American Osteopathic Board  of  Neurology
    33  and Psychiatry or is eligible to be certified by that board. A record of
    34  such consultation shall be included in the patient's medical record.
    35    (ii)  If the attending physician or attending nurse practitioner makes
    36  an initial determination that a patient lacks  decision-making  capacity
    37  because of a developmental disability, either such physician [or], nurse
    38  practitioner,  or  the  concurring  practitioner must have the following
    39  qualifications[, or another professional with the  following  qualifica-
    40  tions  must  independently determine whether the patient lacks decision-
    41  making capacity]:  either (A) a health or social  services  practitioner
    42  qualified  by  training  or  experience  to  make  such determination in
    43  accordance with the written policies adopted by the hospital, or  (B)  a
    44  physician  or clinical psychologist who either is employed by a develop-
    45  mental disabilities services office named in section 13.17 of the mental
    46  hygiene law, or who has been employed for a  minimum  of  two  years  to
    47  render care and service in a facility operated or licensed by the office
    48  for  people with developmental disabilities, or has been approved by the
    49  commissioner of developmental  disabilities  in  accordance  with  regu-
    50  lations promulgated by such commissioner. Such regulations shall require
    51  that  a  physician or clinical psychologist possess specialized training
    52  or three years experience  in  treating  developmental  disabilities.  A
    53  record  of  such consultation shall be included in the patient's medical
    54  record.
    55    (d) If an attending physician  or  attending  nurse  practitioner  has
    56  determined  that  the  patient lacks decision-making capacity and if the

        A. 4525                             4
     1  health or social services practitioner consulted for a concurring deter-
     2  mination disagrees with the attending physician's or the attending nurse
     3  practitioner's determination, the matter shall be referred to the ethics
     4  review committee if it cannot otherwise be resolved.
     5    § 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
     6  as  amended  by  chapter 430 of the laws of 2017, are amended to read as
     7  follows:
     8    3. Consent by a surrogate shall be governed by article  twenty-nine-CC
     9  of  this  chapter,  except that[: (a) a second determination of capacity
    10  shall be made by a health or social services practitioner; and (b)]  the
    11  authority   of   the  ethics  review  committee  set  forth  in  article
    12  twenty-nine-CC of this chapter shall apply only  to  nonhospital  orders
    13  issued in a hospital or hospice.
    14    4.  (a)  When  the concurrence of a second [physician or nurse practi-
    15  tioner] health or social services practitioner is sought to fulfill  the
    16  requirements  for the issuance of a nonhospital order not to resuscitate
    17  for patients in a correctional facility, such second [physician or nurse
    18  practitioner] health or social services practitioner shall  be  selected
    19  by the chief medical officer of the department of corrections and commu-
    20  nity supervision or his or her designee.
    21    (b) When the concurrence of a second [physician or nurse practitioner]
    22  health or social services practitioner is sought to fulfill the require-
    23  ments  for  the  issuance  of a nonhospital order not to resuscitate for
    24  [hospice and] home care patients, such second [physician or nurse  prac-
    25  titioner]  health  or social services practitioner shall be selected [by
    26  the hospice medical director or hospice nurse coordinator designated  by
    27  the  medical  director  or] by the home care services agency director of
    28  patient care services[, as appropriate to the patient].
    29    § 5. Paragraph (a) of subdivision 4 of section 1750-b  of  the  surro-
    30  gate's  court  procedure  act,  as amended by chapter 198 of the laws of
    31  2016, is amended to read as follows:
    32    (a) The attending physician, as defined in subdivision two of  section
    33  twenty-nine  hundred  eighty  of  the  public health law, [must confirm]
    34  shall initially determine to a reasonable degree  of  medical  certainty
    35  that  the  person  who is intellectually disabled lacks capacity to make
    36  health care decisions.  The determination thereof shall be  included  in
    37  the  person  who  is intellectually disabled's medical record, and shall
    38  contain such attending  physician's  opinion  regarding  the  cause  and
    39  nature of the person who is intellectually disabled's incapacity as well
    40  as  its  extent and probable duration. The attending physician who makes
    41  [the confirmation] such initial determination shall consult with another
    42  physician, or a licensed psychologist, to further confirm the person who
    43  is intellectually disabled's lack of capacity.  [The] If  the  attending
    44  physician  makes  an initial determination that a patient lacks capacity
    45  to make health care decisions because of intellectual  disability,  then
    46  the  attending  physician [who makes the confirmation,] or the physician
    47  or   licensed   psychologist   with   whom   the   attending   physician
    48  consults[,]either  (i)  for a patient in a general hospital, residential
    49  health care facility or hospice, must [(i)] be qualified by training  or
    50  experience  to  make  such  determination,  in  accordance with policies
    51  adopted by the general hospital, residential  health  care  facility  or
    52  hospice; or (ii) for a patient in any setting, must (A) be employed by a
    53  developmental disabilities services office named in section 13.17 of the
    54  mental  hygiene  law  or employed by the office for people with develop-
    55  mental disabilities to provide treatment and care to people with  devel-
    56  opmental disabilities, or [(ii)] (B) have been employed for a minimum of

        A. 4525                             5
     1  two  years to render care and service in a facility or program operated,
     2  licensed or authorized by the office for people with developmental disa-
     3  bilities, or [(iii)] (C) have been approved by the commissioner  of  the
     4  office  for  people  with  developmental disabilities in accordance with
     5  regulations promulgated by such  commissioner.  Such  regulations  shall
     6  require  that  a  physician or licensed psychologist possess specialized
     7  training or three years experience in treating intellectual  disability.
     8  A  record  of  such  consultation shall be included in the person who is
     9  intellectually disabled's medical record.
    10    § 6. Subdivision 4 of section  2982  of  the  public  health  law,  as
    11  amended  by  chapter  370  of  the  laws  of 1991, is amended to read as
    12  follows:
    13    4. Priority over other surrogates. Health care decisions by  an  agent
    14  on  a  principal's  behalf  pursuant to this article shall have priority
    15  over decisions by any other person, except as otherwise provided in  the
    16  health  care  proxy or in subdivision [five] six of section two thousand
    17  nine hundred eighty-three of this article.
    18    § 7. Subdivision 2 of section 2984 of the public health law, as  added
    19  by chapter 752 of the laws of 1990, is amended to read as follows:
    20    2. A health care provider shall comply with health care decisions made
    21  by  an  agent in good faith under a health care proxy to the same extent
    22  as if such decisions had been made by  the  principal,  subject  to  any
    23  limitations  in  the health care proxy and pursuant to the provisions of
    24  subdivision [five] six of section two thousand nine hundred eighty-three
    25  of this article.
    26    § 8.  Paragraph (b) of subdivision 7 of section  2983  of  the  public
    27  health  law,  as  amended  by  chapter  342 of the laws of 2018 and such
    28  subdivision as renumbered by section one of this act, is amended to read
    29  as follows:
    30    (b) The notice requirements set forth in subdivision [three]  four  of
    31  this section shall not apply to the confirmation required by this subdi-
    32  vision.
    33    §  9.  This  act shall take effect on the ninetieth day after it shall
    34  have become a law, provided that the amendments to article 29-C  of  the
    35  public  health  law  made  by section two of this act shall apply to the
    36  decisions made pursuant to health care  proxies  created  prior  to  the
    37  effective date of this act as well as those created thereafter.
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