Bill Text: NY A05973 | 2019-2020 | General Assembly | Amended


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - referred to codes [A05973 Detail]

Download: New_York-2019-A05973-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         5973--A
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 22, 2019
                                       ___________
        Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
          Committee on Health -- reported and referred to the Committee on Codes
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee
        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. Subdivision 10 of section 2980 of the public health law, as
     2  amended  by  chapter  23  of  the  laws  of  1994, is amended to read as
     3  follows:
     4    10. "Mental hygiene facility" means a residential facility,  excluding
     5  family  care  homes, operated or licensed by the office of mental health
     6  or the office [of mental retardation and] for people with  developmental
     7  disabilities.
     8    §  2.  Paragraph  (b)  of  subdivision 1 of section 2981 of the public
     9  health law, as added by chapter 752 of the laws of 1990, is  amended  to
    10  read as follows:
    11    (b)  For  the  purposes of this section, every adult shall be presumed
    12  competent to appoint a health care agent unless  such  person  has  been
    13  adjudged  incompetent  or  otherwise adjudged not competent to appoint a
    14  health care agent, or unless a [committee or] guardian of the person has
    15  been appointed for the adult pursuant to article [seventy-eight]  eight-
    16  y-one  of  the  mental  hygiene law or article seventeen-A of the surro-
    17  gate's court procedure act.
    18    § 3. Subdivision 2 of section  2982  of  the  public  health  law,  as
    19  amended  by  chapter  230  of  the  laws  of 2004, is amended to read as
    20  follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09564-02-9

        A. 5973--A                          2
     1    2. Decision-making standard. After consultation with a licensed physi-
     2  cian,  registered  nurse,  physician  assistant,   nurse   practitioner,
     3  licensed  psychologist,  licensed  master  social  worker, or a licensed
     4  clinical social worker, the agent shall make health care decisions:  (a)
     5  in  accordance  with  the  principal's wishes, including the principal's
     6  religious and moral beliefs; or (b) if the principal's  wishes  are  not
     7  reasonably known and cannot with reasonable diligence be ascertained, in
     8  accordance  with the principal's best interests; provided, however, that
     9  if the principal's wishes regarding  the  administration  of  artificial
    10  nutrition and hydration are not reasonably known and cannot with reason-
    11  able diligence be ascertained, the agent shall not have the authority to
    12  make decisions regarding these measures.
    13    §  4.  Subdivision  3  of  section  2983  of the public health law, as
    14  amended by chapter 342 of the laws  of  2018,  is  amended  to  read  as
    15  follows:
    16    3. Notice of determination. Notice of a determination that a principal
    17  lacks  capacity  to  make health care decisions shall promptly be given:
    18  (a) to the principal, orally and in writing, where there  is  any  indi-
    19  cation  of the principal's ability to comprehend such notice; (b) to the
    20  agent; (c) if the principal is  in  or  is  transferred  from  a  mental
    21  hygiene  facility, to the facility director; and (d) to the [conservator
    22  for, or committee of, the principal] guardian, if any.
    23    § 5. Subdivision 2 of section 2991 of the public health law, as  added
    24  by chapter 752 of the laws of 1990, is amended to read as follows:
    25    2. Such procedures shall be established in accordance with regulations
    26  issued by the commissioners of health, mental health, and [mental retar-
    27  dation  and]  developmental disabilities for facilities subject to their
    28  respective regulatory authorities.
    29    § 6. The opening paragraph of section 2992 of the public  health  law,
    30  as  amended  by  chapter  93  of the laws of 2014, is amended to read as
    31  follows:
    32    The health care provider[, the conservator for, or committee]  of  the
    33  principal  under article eighty-one of the mental hygiene law or article
    34  seventeen-A of the surrogate's court procedure act, members of the prin-
    35  cipal's family, a close friend of the principal as defined  in  subdivi-
    36  sion  [five]  four  of  section  [two thousand nine] twenty-nine hundred
    37  [sixty-one] ninety-four-a of  this  chapter,  or  the  commissioner  [of
    38  health],  the  commissioner  of  mental  health,  or the commissioner of
    39  developmental disabilities may commence a special proceeding pursuant to
    40  article four of the civil practice law and rules, in a court  of  compe-
    41  tent  jurisdiction, with respect to any dispute arising under this arti-
    42  cle, including, but not limited to, a proceeding to:
    43    § 7. Section 2993 of the public health law, as added by chapter 752 of
    44  the laws of 1990, is amended to read as follows:
    45    § 2993. Regulations. The commissioner  [of  health],  in  consultation
    46  with  the commissioners of [the office of] mental health and [the office
    47  of mental retardation and] developmental disabilities,  shall  establish
    48  such  regulations  as  may  be  necessary for the implementation of this
    49  article, subject to the provisions of subdivision two  of  section  [two
    50  thousand nine] twenty-nine hundred ninety-one of this article.
    51    § 8. Subdivisions 17, 20 and 26 of section 2994-a of the public health
    52  law,  as  added by chapter 8 of the laws of 2010, are amended to read as
    53  follows:
    54    17. "Health or social [service] services practitioner" means a  regis-
    55  tered  professional  nurse,  nurse  practitioner,  physician,  physician
    56  assistant, psychologist, licensed master social worker or licensed clin-

        A. 5973--A                          3
     1  ical social worker, licensed or certified pursuant to the education  law
     2  acting within his or her scope of practice.
     3    20. "Mental hygiene facility" means a facility operated or licensed by
     4  the  office  of  mental health or the office [of mental retardation and]
     5  for people with developmental disabilities as defined in subdivision six
     6  of section 1.03 of the mental hygiene law.
     7    26. "Person connected with the case" means the patient, any person  on
     8  the  surrogate  list,  a  parent or guardian of a minor patient, [the] a
     9  hospital administrator, an attending  physician,  any  other  health  or
    10  social services practitioner who is or has been directly involved in the
    11  patient's  care,  and  any  duly  authorized state agency, including the
    12  facility director or regional director for a patient transferred from  a
    13  mental  hygiene  facility and the facility director for a patient trans-
    14  ferred from a correctional facility.
    15    § 9. The opening paragraph of subdivision 3 of section 2994-b  of  the
    16  public  health  law,  as  amended by chapter 430 of the laws of 2017, is
    17  amended to read as follows:
    18    Prior to seeking or relying upon a health care decision by a surrogate
    19  for a patient under this article, if the attending physician or  attend-
    20  ing  nurse  practitioner  has  reason  to believe that the patient has a
    21  history of receiving services for [mental  retardation  or]  a  develop-
    22  mental  disability;  it reasonably appears to the attending physician or
    23  attending nurse practitioner that the patient  has  [mental  retardation
    24  or]  a developmental disability; or the attending physician or attending
    25  nurse practitioner has reason to  believe  that  the  patient  has  been
    26  transferred  from  a mental hygiene facility operated or licensed by the
    27  office of mental health, then such physician or nurse practitioner shall
    28  make reasonable efforts to determine whether paragraphs (a), (b) or  (c)
    29  of this subdivision are applicable:
    30    §  10.  Subdivision  3  of section 2994-e of the public health law, as
    31  amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
    32  follows:
    33    3.  Decision-making  standards  and  procedures  for emancipated minor
    34  patient. (a) If an attending physician or attending  nurse  practitioner
    35  determines  that  a  patient  is an emancipated minor patient with deci-
    36  sion-making capacity and documents the basis for such  determination  in
    37  the  patient's  medical  record, the patient shall have the authority to
    38  decide about life-sustaining treatment. Such authority shall  include  a
    39  decision to withhold or withdraw life-sustaining treatment if an attend-
    40  ing  physician  or  attending  nurse  practitioner and the ethics review
    41  committee determine that the decision accords  with  the  standards  for
    42  surrogate decisions for adults, and the ethics review committee approves
    43  the decision.
    44    (b) If the hospital can with reasonable efforts ascertain the identity
    45  of the parents or guardian of an emancipated minor patient, the hospital
    46  shall  make  diligent  efforts to notify such persons, and document such
    47  diligent efforts in the patient's medical record, prior  to  withholding
    48  or withdrawing life-sustaining treatment pursuant to this subdivision.
    49    §  11.  Subparagraph (iv) of paragraph (b) of subdivision 4 of section
    50  2994-m of the public health law, as amended by chapter 430 of  the  laws
    51  of 2017, is amended to read as follows:
    52    (iv)  Following  ethics  review  committee  consideration  of  a  case
    53  concerning the withdrawal or withholding of  life-sustaining  treatment,
    54  treatment  shall  not  be withdrawn or withheld until the hospital makes
    55  diligent efforts to inform the persons identified in subparagraph  (iii)
    56  of  this  paragraph  [have been informed] of the committee's response to

        A. 5973--A                          4
     1  the case and documents such diligent efforts in  the  patient's  medical
     2  record.
     3    §  12.  Subdivision  2  of section 2994-t of the public health law, as
     4  added by chapter 8 of the laws of 2010, is amended to read as follows:
     5    2. The commissioner, in consultation with the  commissioners  of  [the
     6  office  of]  mental  health  and  [the office of mental retardation and]
     7  developmental disabilities, shall promulgate regulations identifying the
     8  credentials of health care professionals qualified to provide  an  inde-
     9  pendent  determination, pursuant to subdivision three of section twenty-
    10  nine hundred ninety-four-c of this article, that a patient  lacks  deci-
    11  sion-making   capacity   because  of  mental  illness  or  developmental
    12  disability.
    13    § 13. Section 2994-u of the public health law, as added by  chapter  8
    14  of the laws of 2010, is amended to read as follows:
    15    §  2994-u.  Rights  to be publicized. The commissioner shall prepare a
    16  statement summarizing the rights, duties, and requirements of this arti-
    17  cle and shall require that a copy of  such  statement  be  furnished  to
    18  [patients] a patient or to [persons on] the surrogate [list known to the
    19  hospital],  or  to  the  [parents  or guardians] parent or guardian of a
    20  minor [patients] patient, at or prior to admission to the  hospital,  or
    21  within  a  reasonable time thereafter, and to [each member of the hospi-
    22  tal's staff directly involved with  patient  care]  any  person  on  the
    23  surrogate  list who requests a copy of such statement from the hospital.
    24  The statement shall also be made  available  to  the  hospital  clinical
    25  staff.
    26    §  14. The commissioner of health shall revise the statement of rights
    27  that hospitals are required to post (known  as  the  Patient's  Bill  of
    28  Rights)  pursuant  to  paragraph (g) of subdivision 1 of section 2803 of
    29  the public health law, by replacing the clause regarding orders  not  to
    30  resuscitate  with  a  statement  that more generally informs patients of
    31  their right to receive  from  the  hospital  upon  admission,  and  upon
    32  request,  a  more  complete  statement  of  their rights with respect to
    33  deciding about health care, including appointing a  health  care  agent,
    34  consenting to do-not-resuscitate orders and making other life-sustaining
    35  treatment  decisions. The clause should also state in substance that the
    36  hospital will also provide such statement upon  request  to  any  family
    37  member or friend of a patient who lacks decision-making capacity.
    38    §  15.  Subdivisions 12 and 13 of section 2994-aa of the public health
    39  law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
    40  vision 13 as amended  by chapter 167 of the laws of 2011, are amended to
    41  read as follows:
    42    12. "Mental hygiene facility" means a residential facility operated or
    43  licensed by the office of mental health [or the office of mental  retar-
    44  dation and developmental disabilities].
    45    13. "Nonhospital order not to resuscitate" means an order that directs
    46  emergency  medical  services  personnel,  hospice  personnel,  home care
    47  services agency personnel and hospital emergency services personnel  not
    48  to  attempt cardiopulmonary resuscitation in the event a patient suffers
    49  cardiac or respiratory arrest.
    50    § 16. Subdivisions 2 and 6 of section 2994-dd  of  the  public  health
    51  law,  as amended by chapter 430 of the laws of 2017, are amended to read
    52  as follows:
    53    2. A nonhospital order not to resuscitate shall be issued upon a stan-
    54  dard form prescribed by the commissioner. [The commissioner  shall  also
    55  develop  a] A standard bracelet [that] or other article may be worn by a
    56  patient with a nonhospital order not to  resuscitate  to  identify  that

        A. 5973--A                          5
     1  status;  provided, however, that no person may require a patient to wear
     2  such a bracelet or other article  and  that  no  person  may  require  a
     3  patient  to wear such a bracelet as a condition for honoring a nonhospi-
     4  tal order not to resuscitate or for providing health care services.
     5    6.  The  commissioner may authorize the use of one or more alternative
     6  forms for issuing a nonhospital order not to resuscitate  (in  place  of
     7  the  standard  form prescribed by the commissioner under subdivision two
     8  of this section). Such alternative form or forms may  also  be  used  to
     9  issue  a  non-hospital do not intubate order. Any such alternative forms
    10  intended for use for persons with developmental disabilities or  persons
    11  with  mental  illness  who are incapable of making their own health care
    12  decisions or who have a guardian of the  person  appointed  pursuant  to
    13  article  eighty-one  of the mental hygiene law or article seventeen-A of
    14  the surrogate's court procedure act must also be approved by the commis-
    15  sioner of developmental  disabilities  or  the  commissioner  of  mental
    16  health, as appropriate. An alternative form under this subdivision shall
    17  otherwise  conform  with applicable federal and state law. This subdivi-
    18  sion does not limit, restrict or impair the use of an  alternative  form
    19  for  issuing  an order not to resuscitate in a general hospital or resi-
    20  dential health care facility under article twenty-eight of this  chapter
    21  or  a  hospital  under  subdivision  ten  of  section 1.03 of the mental
    22  hygiene law  or  a  developmental  disabilities  services  office  under
    23  section 13.17 of the mental hygiene law.
    24    §  17. Section 2994-gg of the public health law, as added by chapter 8
    25  of the laws of 2010, is amended to read as follows:
    26    § 2994-gg. Immunity. No person shall be subjected to  criminal  prose-
    27  cution  or  civil  liability,  or be deemed to have engaged in unprofes-
    28  sional conduct, for honoring reasonably and in good  faith  pursuant  to
    29  this  [section]  article  a  nonhospital  order  not to resuscitate, for
    30  disregarding a nonhospital order pursuant to section twenty-nine hundred
    31  ninety-four-ee of this article, or for other  actions  taken  reasonably
    32  and in good faith pursuant to this [section] article.
    33    §  18.  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 shall apply to decisions made pursuant to health care
    36  proxies created prior to the effective date of this act as well as those
    37  created thereafter.
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