Bill Text: NY S05938 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to conforming and improving the process for determining incapacity.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO HEALTH [S05938 Detail]
Download: New_York-2019-S05938-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5938 2019-2020 Regular Sessions IN SENATE May 16, 2019 ___________ 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 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 to15withdraw or withhold life-sustaining treatment, the attending physician16or attending nurse practitioner who makes the determination that a prin-17cipal lacks capacity to make health care decisions must consult with18another physician or nurse practitioner to confirm such determination.19Such consultation shall also be included within the patient's medical20record.] 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. LBD08610-01-9S. 5938 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 attending16physician or attending nurse practitioner who makes the determination17must be, or must consult, for the purpose of confirming the determi-18nation, 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 makes29the determination must be, or must consult, for the purpose of confirm-30ing 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 a48patient's agent shall not make the determination of the patient's capac-49ity 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-S. 5938 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 social11services practitioner employed by or otherwise formally affiliated with12the facility must independently determine whether an adult patient lacks13decision-making capacity.14(ii) In a general hospital a health or social services practitioner15employed by or otherwise formally affiliated with the facility must16independently determine whether an adult patient lacks decision-making17capacity if the surrogate's decision concerns the withdrawal or with-18holding 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 another28physician with the following qualifications must independently determine29whether 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-40tions must independently determine whether the patient lacks decision-41making 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 theS. 5938 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 capacity10shall 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-15tioner] 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 nurse18practitioner] 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-25titioner] health or social services practitioner shall be selected [by26the hospice medical director or hospice nurse coordinator designated by27the 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 ofS. 5938 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.