Bill Text: NY S05940 | 2019-2020 | General Assembly | Introduced


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) 2019-05-16 - REFERRED TO HEALTH [S05940 Detail]

Download: New_York-2019-S05940-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          5940

                               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, 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:
    21    2. Decision-making standard. After consultation with a licensed physi-
    22  cian,   registered   nurse,  physician  assistant,  nurse  practitioner,
    23  licensed psychologist, licensed master  social  worker,  or  a  licensed

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09564-03-9

        S. 5940                             2

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

        S. 5940                             3

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

        S. 5940                             4

     1    § 12. Subdivision 2 of section 2994-t of the  public  health  law,  as
     2  added by chapter 8 of the laws of 2010, is amended to read as follows:
     3    2.  The  commissioner,  in consultation with the commissioners of [the
     4  office of] mental health and [the  office  of  mental  retardation  and]
     5  developmental disabilities, shall promulgate regulations identifying the
     6  credentials  of  health care professionals qualified to provide an inde-
     7  pendent determination, pursuant to subdivision three of section  twenty-
     8  nine  hundred  ninety-four-c of this article, that a patient lacks deci-
     9  sion-making  capacity  because  of  mental  illness   or   developmental
    10  disability.
    11    §  13.  Section 2994-u of the public health law, as added by chapter 8
    12  of the laws of 2010, is amended to read as follows:
    13    § 2994-u. Rights to be publicized. The commissioner  shall  prepare  a
    14  statement summarizing the rights, duties, and requirements of this arti-
    15  cle  and  shall  require  that  a copy of such statement be furnished to
    16  [patients] a patient or to [persons on] the surrogate [list known to the
    17  hospital], or to the [parents or guardians]  parent  or  guardian  of  a
    18  minor  [patients]  patient, at or prior to admission to the hospital, or
    19  within a reasonable time thereafter, and to [each member of  the  hospi-
    20  tal's  staff  directly  involved  with  patient  care] any person on the
    21  surrogate list who requests a copy of such statement from the  hospital.
    22  The  statement  shall  also  be  made available to the hospital clinical
    23  staff.
    24    § 14. The commissioner of health shall revise the statement of  rights
    25  that  hospitals  are  required  to  post (known as the Patient's Bill of
    26  Rights) pursuant to paragraph (g) of subdivision 1 of  section  2803  of
    27  the  public  health law, by replacing the clause regarding orders not to
    28  resuscitate with a statement that more  generally  informs  patients  of
    29  their  right  to  receive  from  the  hospital  upon admission, and upon
    30  request, a more complete statement  of  their  rights  with  respect  to
    31  deciding  about  health  care, including appointing a health care agent,
    32  consenting to do-not-resuscitate orders and making other life-sustaining
    33  treatment decisions. The clause should also state in substance that  the
    34  hospital  will  also  provide  such statement upon request to any family
    35  member or friend of a patient who lacks decision-making capacity.
    36    § 15. Subdivisions 12 and 13 of section 2994-aa of the  public  health
    37  law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
    38  vision 13 as amended  by chapter 167 of the laws of 2011, are amended to
    39  read as follows:
    40    12. "Mental hygiene facility" means a residential facility operated or
    41  licensed  by the office of mental health [or the office of mental retar-
    42  dation and developmental disabilities].
    43    13. "Nonhospital order not to resuscitate" means an order that directs
    44  emergency medical  services  personnel,  hospice  personnel,  home  care
    45  services  agency personnel and hospital emergency services personnel not
    46  to attempt cardiopulmonary resuscitation in the event a patient  suffers
    47  cardiac or respiratory arrest.
    48    §  16.  Subdivisions  2  and 6 of section 2994-dd of the public health
    49  law, as amended by chapter 430 of the laws of 2017, are amended to  read
    50  as follows:
    51    2. A nonhospital order not to resuscitate shall be issued upon a stan-
    52  dard  form  prescribed by the commissioner. [The commissioner shall also
    53  develop a] A standard bracelet [that] or other article may be worn by  a
    54  patient  with  a  nonhospital  order not to resuscitate to identify that
    55  status; provided, however, that no person may require a patient to  wear
    56  such  a  bracelet  or  other  article  and  that no person may require a

        S. 5940                             5

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