S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9859

                          I N  A S S E M B L Y

                             April 18, 2016
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
  Committee on Higher Education

AN ACT to amend the public health law, in relation to authorizing  nurse
  practitioners to execute orders not to resuscitate and orders pertain-
  ing to life sustaining treatments

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 2960 of the public health law, as added by  chapter
818 of the laws of 1987, is amended to read as follows:
  S  2960. Legislative findings and purpose. The legislature finds that,
although cardiopulmonary resuscitation  has  proved  invaluable  in  the
prevention of sudden, unexpected death, it is appropriate for an attend-
ing physician OR ATTENDING NURSE PRACTITIONER, in certain circumstances,
to  issue  an  order  not  to attempt cardiopulmonary resuscitation of a
patient where appropriate consent has  been  obtained.  The  legislature
further  finds  that there is a need to clarify and establish the rights
and obligations of patients, their families, and health  care  providers
regarding  cardiopulmonary  resuscitation and the issuance of orders not
to resuscitate.
  S 2. Subdivisions 2, 5 and 20 of section 2961  of  the  public  health
law,  subdivisions  2 and 5 as amended by chapter 8 of the laws of 2010,
and subdivision 20 as added by chapter 818 of the laws of  1987  and  as
renumbered  by  chapter 370 of the laws of 1991, are amended and two new
subdivisions 2-a and 16 are added to read as follows:
  2. "Attending physician" means the physician selected by  or  assigned
to a patient in a hospital who has primary responsibility for the treat-
ment and care of the patient. Where more than one physician AND/OR NURSE
PRACTITIONER  shares  such  responsibility,  any such physician OR NURSE
PRACTITIONER may act as the attending physician OR ATTENDING NURSE PRAC-
TITIONER pursuant to this article.
  2-A. "ATTENDING  NURSE  PRACTITIONER"  MEANS  THE  NURSE  PRACTITIONER
SELECTED  BY  OR  ASSIGNED  TO  A  PATIENT IN A HOSPITAL WHO HAS PRIMARY
RESPONSIBILITY FOR THE TREATMENT AND CARE OF  THE  PATIENT.  WHERE  MORE
THAN ONE PHYSICIAN AND/OR NURSE PRACTITIONER SHARES SUCH RESPONSIBILITY,

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

                                                           LBD13116-02-5

A. 9859                             2

ANY SUCH PHYSICIAN OR NURSE PRACTITIONER MAY ACT AS THE ATTENDING PHYSI-
CIAN OR ATTENDING NURSE PRACTITIONER PURSUANT TO THIS ARTICLE.
  5.  "Close  friend"  means any person, eighteen years of age or older,
who is a close friend of the patient, or relative of the patient  (other
than  a  spouse,  adult  child, parent, brother or sister) who has main-
tained such regular contact with the patient as to be familiar with  the
patient's  activities,  health,  and  religious or moral beliefs and who
presents a signed statement to that effect to the attending physician OR
ATTENDING NURSE PRACTITIONER.
  16. "NURSE PRACTITIONER" MEANS A NURSE PRACTITIONER CERTIFIED PURSUANT
TO SECTION SIXTY-NINE HUNDRED TEN OF THE EDUCATION LAW WHO IS PRACTICING
IN ACCORDANCE WITH SUBDIVISION THREE OF SECTION SIXTY-NINE  HUNDRED  TWO
OF THE EDUCATION LAW.
  20.  "Reasonably available" means that a person to be contacted can be
contacted with diligent efforts by  an  attending  physician,  ATTENDING
NURSE  PRACTITIONER  or another person acting on behalf of the attending
physician, ATTENDING NURSE PRACTITIONER or the hospital.
  S 3. Subdivisions 2 and 3 of section 2962 of the public health law, as
added by chapter 818 of the  laws  of  1987,  are  amended  to  read  as
follows:
  2.  It  shall be lawful for the attending physician OR ATTENDING NURSE
PRACTITIONER to issue an order not to resuscitate  a  patient,  provided
that  the  order  has  been  issued pursuant to the requirements of this
article. The order shall be included in writing in the patient's  chart.
An order not to resuscitate shall be effective upon issuance.
  3.  Before  obtaining,  pursuant  to  this article, the consent of the
patient, or of the surrogate of the patient, or parent or legal guardian
of the minor patient, to an order  not  to  resuscitate,  the  attending
physician  OR  ATTENDING  NURSE PRACTITIONER shall provide to the person
giving consent information about the patient's diagnosis and  prognosis,
the  reasonably foreseeable risks and benefits of cardiopulmonary resus-
citation for the patient, and the consequences of an order not to resus-
citate.
  S 4. Section 2963 of the public health law, as added by chapter 818 of
the laws of 1987, subdivision 1, paragraph  (b)  of  subdivision  3  and
subdivision 4 as amended by chapter 8 of the laws of 2010, paragraph (c)
of  subdivision 3 as amended by section 5 of part J of chapter 56 of the
laws of 2012, is amended to read as follows:
  S 2963.  Determination  of  capacity  to  make  a  decision  regarding
cardiopulmonary resuscitation.  1. Every adult shall be presumed to have
the  capacity to make a decision regarding cardiopulmonary resuscitation
unless determined otherwise pursuant to this section or  pursuant  to  a
court  order  or  unless a guardian is authorized to decide about health
care for the adult pursuant to article eighty-one of the mental  hygiene
law  or  article seventeen-A of the surrogate's court procedure act. The
attending physician OR ATTENDING NURSE PRACTITIONER shall  not  rely  on
the  presumption stated in this subdivision if clinical indicia of inca-
pacity are present.
  2. A determination that an adult patient lacks capacity shall be  made
by  the attending physician OR ATTENDING NURSE PRACTITIONER to a reason-
able degree of medical certainty. The determination  shall  be  made  in
writing  and shall contain such attending physician's OR ATTENDING NURSE
PRACTITIONER'S opinion regarding the cause and nature of  the  patient's
incapacity  as  well  as  its extent and probable duration. The determi-
nation shall be included in the patient's medical chart.

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  3. (a) At least one other physician, selected by a  person  authorized
by the hospital to make such selection, must concur in the determination
that an adult lacks capacity. The concurring determination shall be made
in  writing  after personal examination of the patient and shall contain
the  physician's opinion regarding the cause and nature of the patient's
incapacity as well as its extent and probable duration. Each  concurring
determination shall be included in the patient's medical chart.
  (b)  If the attending physician OR ATTENDING NURSE PRACTITIONER deter-
mines that a patient lacks  capacity  because  of  mental  illness,  the
concurring  determination  required by paragraph (a) of this subdivision
shall be provided by a physician licensed to practice  medicine  in  New
York state, who is a diplomate or eligible to be certified by the Ameri-
can  Board of Psychiatry and Neurology or who is certified by the Ameri-
can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
certified by that board.
  (c)  If the attending physician OR ATTENDING NURSE PRACTITIONER deter-
mines that a patient lacks capacity because of a developmental disabili-
ty, the concurring determination  required  by  paragraph  (a)  of  this
subdivision shall be provided by a physician or psychologist employed by
a  developmental  disabilities services office named in section 13.17 of
the mental hygiene law, or who has been employed for a  minimum  of  two
years  to  render care and service in a facility operated or licensed by
the office for people with developmental disabilities, or who  has  been
approved by the commissioner of developmental disabilities in accordance
with  regulations  promulgated  by  such  commissioner. Such regulations
shall require that  a  physician  or  psychologist  possess  specialized
training  or  three years experience in treating developmental disabili-
ties.
  4. Notice of a determination that the  patient  lacks  capacity  shall
promptly  be  given (a) to the patient, where there is any indication of
the patient's ability to comprehend such notice, together with a copy of
a statement prepared in  accordance  with  section  twenty-nine  hundred
seventy-eight  of  this  article, and (b) to the person on the surrogate
list highest in order of priority listed, when persons in prior subpara-
graphs are not reasonably available. Nothing in this  subdivision  shall
preclude  or  require  notice  to  more than one person on the surrogate
list.
  5. A determination that a patient lacks capacity to  make  a  decision
regarding an order not to resuscitate pursuant to this section shall not
be  construed as a finding that the patient lacks capacity for any other
purpose.
  S 5. Subdivision 2 of section 2964 of the public health law, as  added
by chapter 818 of the laws of 1987, is amended to read as follows:
  2.  (a)  During  hospitalization, an adult with capacity may express a
decision consenting to an order not to resuscitate orally in  the  pres-
ence  of  at  least two witnesses eighteen years of age or older, one of
whom is a physician OR NURSE PRACTITIONER affiliated with  the  hospital
in  which  the  patient  is  being  treated.  Any such decision shall be
recorded in the patient's medical chart.
  (b) Prior to or during hospitalization, an  adult  with  capacity  may
express a decision consenting to an order not to resuscitate in writing,
dated  and  signed  in  the  presence of at least two witnesses eighteen
years of age or older who shall sign the decision.
  (c) An attending physician OR  ATTENDING  NURSE  PRACTITIONER  who  is
provided  with  or  informed  of a decision pursuant to this subdivision

A. 9859                             4

shall record or include the decision in the patient's medical  chart  if
the decision has not been recorded or included, and either:
  (i) promptly issue an order not to resuscitate the patient or issue an
order  at such time as the conditions, if any, specified in the decision
are met, and inform the hospital staff  responsible  for  the  patient's
care of the order; or
  (ii)  promptly  make  his  or her objection to the issuance of such an
order and the reasons therefor known to the patient and either make  all
reasonable efforts to arrange for the transfer of the patient to another
physician  OR  NURSE  PRACTITIONER, if necessary, or promptly submit the
matter to the dispute mediation system.
  (d) Prior to issuing an order not to resuscitate  a  patient  who  has
expressed  a  decision  consenting  to an order not to resuscitate under
specified medical conditions, the attending physician OR ATTENDING NURSE
PRACTITIONER must make  a  determination,  to  a  reasonable  degree  of
medical  certainty, that such conditions exist, and include the determi-
nation in the patient's medical chart.
  S 6. Subdivision 5 of section 2964 of the public health law is  renum-
bered subdivision 3.
  S 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
added  by  chapter  818 of the laws of 1987 and as renumbered by chapter
370 of the laws of 1991, paragraph (a) of subdivision 4  as  amended  by
chapter  370  of  the laws of 1991 and paragraph (c) of subdivision 4 as
amended by chapter 8 of the  laws  of  2010,  are  amended  to  read  as
follows:
  3.  (a)  The surrogate shall make a decision regarding cardiopulmonary
resuscitation on the basis of the adult  patient's  wishes  including  a
consideration  of  the patient's religious and moral beliefs, or, if the
patient's wishes are unknown and cannot be ascertained, on the basis  of
the patient's best interests.
  (b)  Notwithstanding any law to the contrary, the surrogate shall have
the same right as the patient to receive medical information and medical
records.
  (c) A surrogate may consent to an order not to resuscitate  on  behalf
of an adult patient only if there has been a determination by an attend-
ing  physician  OR  ATTENDING NURSE PRACTITIONER with the concurrence of
another physician OR NURSE PRACTITIONER selected by a person  authorized
by the hospital to make such selection, given after personal examination
of the patient that, to a reasonable degree of medical certainty:
  (i) the patient has a terminal condition; or
  (ii) the patient is permanently unconscious; or
  (iii) resuscitation would be medically futile; or
  (iv) resuscitation would impose an extraordinary burden on the patient
in  light of the patient's medical condition and the expected outcome of
resuscitation for the patient.
  Each determination shall be included in the patient's medical chart.
  4. (a) A surrogate shall express a decision consenting to an order not
to resuscitate either (i) in writing, dated, and signed in the  presence
of  one  witness eighteen years of age or older who shall sign the deci-
sion, or (ii) orally, to two persons eighteen years of age or older, one
of whom is a physician OR NURSE PRACTITIONER affiliated with the  hospi-
tal  in  which  the patient is being treated. Any such decision shall be
recorded in the patient's medical chart.
  (b) The attending physician OR ATTENDING  NURSE  PRACTITIONER  who  is
provided  with the decision of a surrogate shall include the decision in

A. 9859                             5

the patient's medical chart and, if the surrogate has consented  to  the
issuance of an order not to resuscitate, shall either:
  (i)  promptly issue an order not to resuscitate the patient and inform
the hospital staff responsible for the patient's care of the order; or
  (ii) promptly make the attending physician's OR ATTENDING NURSE  PRAC-
TITIONER'S  objection  to  the  issuance  of  such an order known to the
surrogate and either make all reasonable  efforts  to  arrange  for  the
transfer  of  the patient to another physician OR NURSE PRACTITIONER, if
necessary, or promptly refer the matter to the dispute mediation system.
  (c) If the attending physician OR  ATTENDING  NURSE  PRACTITIONER  has
actual  notice of opposition to a surrogate's consent to an order not to
resuscitate by any person on the surrogate list, the physician OR  NURSE
PRACTITIONER shall submit the matter to the dispute mediation system and
such  order  shall  not be issued or shall be revoked in accordance with
the provisions of  subdivision  three  of  section  twenty-nine  hundred
seventy-two of this article.
  S 8. Section 2966 of the public health law, as added by chapter 818 of
the  laws  of 1987, subdivision 3 as amended by chapter 8 of the laws of
2010, is amended to read as follows:
  S 2966. Decision-making on behalf of an adult patient without capacity
for whom no surrogate is available. 1. If  no  surrogate  is  reasonably
available, willing to make a decision regarding issuance of an order not
to  resuscitate,  and competent to make a decision regarding issuance of
an order not to resuscitate on behalf of  an  adult  patient  who  lacks
capacity  and  who  had  not  previously  expressed a decision regarding
cardiopulmonary resuscitation, an attending physician OR ATTENDING NURSE
PRACTITIONER (a) may issue an order  not  to  resuscitate  the  patient,
provided  that  the  attending physician OR ATTENDING NURSE PRACTITIONER
determines, in writing, that, to a reasonable degree of medical certain-
ty, resuscitation would be medically futile, and  another  physician  OR
NURSE  PRACTITIONER  selected  by a person authorized by the hospital to
make such selection, after personal examination of the patient,  reviews
and  concurs  in writing with such determination, or, (b) shall issue an
order not to resuscitate the patient, provided that, pursuant to  subdi-
vision one of section twenty-nine hundred seventy-six of this article, a
court has granted a judgment directing the issuance of such an order.
  [3]   2.  Notwithstanding any other provision of this section, where a
decision to consent to an order not to resuscitate has been made, notice
of the decision shall be given to the patient where there is  any  indi-
cation  of  the  patient's  ability  to  comprehend  such notice. If the
patient objects, an order not to resuscitate shall not be issued.
  S 9. Section 2967 of the public health law, as added by chapter 818 of
the laws of 1987, paragraph (b) of  subdivision  2,  subdivision  3  and
paragraphs (a) and (b) of subdivision 4 as amended by chapter 370 of the
laws of 1991, is amended to read as follows:
  S  2967. Decision-making on behalf of a minor patient. 1. An attending
physician OR  ATTENDING  NURSE  PRACTITIONER,  in  consultation  with  a
minor's  parent  or  legal guardian, shall determine whether a minor has
the capacity to make a decision regarding resuscitation.
  2. (a) The consent of a minor's  parent  or  legal  guardian  and  the
consent  of the minor, if the minor has capacity, must be obtained prior
to issuing an order not to resuscitate the minor.
  (b) Where the attending physician OR ATTENDING NURSE PRACTITIONER  has
reason to believe that there is another parent or a non-custodial parent
who  has not been informed of a decision to issue an order not to resus-
citate the minor, the attending physician OR ATTENDING NURSE PRACTITION-

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ER, or someone acting on behalf of the attending physician OR  ATTENDING
NURSE  PRACTITIONER,  shall  make reasonable efforts to determine if the
uninformed parent or non-custodial parent has maintained substantial and
continuous  contact  with  the  minor  and,  if  so, shall make diligent
efforts to notify that parent or non-custodial parent  of  the  decision
prior to issuing the order.
  3.  A parent or legal guardian may consent to an order not to resusci-
tate on behalf of a minor only if there has been a written determination
by the attending physician OR ATTENDING  NURSE  PRACTITIONER,  with  the
written  concurrence of another physician OR NURSE PRACTITIONER selected
by a person authorized by the hospital to  make  such  selections  given
after  personal examination of the patient, that, to a reasonable degree
of medical certainty, the minor suffers from one of the  medical  condi-
tions  set  forth in paragraph (c) of subdivision three of section twen-
ty-nine hundred sixty-five of this article. Each determination shall  be
included in the patient's medical chart.
  4.  (a)  A  parent  or legal guardian of a minor, in making a decision
regarding  cardiopulmonary  resuscitation,  shall  consider  the   minor
patient's wishes, including a consideration of the minor patient's reli-
gious  and  moral  beliefs,  and  shall express a decision consenting to
issuance of an order not to resuscitate either (i) in writing, dated and
signed in the presence of one witness eighteen years of age or older who
shall sign the decision, or (ii) orally, to two persons  eighteen  years
of age or older, one of whom is a physician OR NURSE PRACTITIONER affil-
iated  with the hospital in which the patient is being treated. Any such
decision shall be recorded in the patient's medical chart.
  (b) The attending physician OR ATTENDING  NURSE  PRACTITIONER  who  is
provided  with  the  decision  of  a  minor's  parent or legal guardian,
expressed pursuant to this subdivision, and of the minor  if  the  minor
has  capacity,  shall  include such decision or decisions in the minor's
medical chart and shall comply with the provisions of paragraph  (b)  of
subdivision four of section twenty-nine hundred sixty-five of this arti-
cle.
  (c)  If  the  attending  physician OR ATTENDING NURSE PRACTITIONER has
actual notice of the opposition of a parent or non-custodial  parent  to
consent  by  another  parent to an order not to resuscitate a minor, the
physician OR NURSE PRACTITIONER shall submit the matter to  the  dispute
mediation  system and such order shall not be issued or shall be revoked
in accordance with the provisions of subdivision three of section  twen-
ty-nine hundred seventy-two of this article.
  S  10.  Section 2969 of the public health law, as added by chapter 818
of the laws of 1987, subdivision 2 as amended by chapter 370 of the laws
of 1991, is amended to read as follows:
  S 2969. Revocation of consent to order not to resuscitate. 1. A person
may, at any time, revoke his or her consent to an order not to  resusci-
tate  himself  or herself by making either a written or an oral declara-
tion to a physician or member of the nursing staff at the hospital where
he or she is being treated, or by any other act  evidencing  a  specific
intent to revoke such consent.
  2. Any surrogate, parent, or legal guardian may at any time revoke his
or her consent to an order not to resuscitate a patient by (a) notifying
a  physician or member of the nursing staff of the revocation of consent
in writing, dated and signed, or  (b)  orally  notifying  the  attending
physician  OR  ATTENDING NURSE PRACTITIONER in the presence of a witness
eighteen years of age or older.

A. 9859                             7

  3. Any physician OR NURSE PRACTITIONER who is informed of or  provided
with  a revocation of consent pursuant to this section shall immediately
include the revocation in the patient's chart,  cancel  the  order,  and
notify  the  hospital  staff  responsible  for the patient's care of the
revocation and cancellation. Any member of the nursing staff, OTHER THAN
A  NURSE  PRACTITIONER, who is informed of or provided with a revocation
of consent pursuant to this section shall immediately notify a physician
OR NURSE PRACTITIONER of such revocation.
  S 11. Section 2970 of the public health law, as added by  chapter  818
of  the  laws of 1987, subdivision 1 as amended by chapter 8 of the laws
of 2010, paragraph (b) of subdivision 2 as amended by chapter 370 of the
laws of 1991, is amended to read as follows:
  S 2970. Physician AND NURSE PRACTITIONER review of the  order  not  to
resuscitate.    1. For each patient for whom an order not to resuscitate
has been issued, the attending physician OR ATTENDING NURSE PRACTITIONER
shall review the patient's chart to determine  if  the  order  is  still
appropriate  in  light  of the patient's condition and shall indicate on
the patient's chart that the order  has  been  reviewed  each  time  the
patient  is  required to be seen by a physician but at least every sixty
days.
  Failure to comply with this subdivision shall not render an order  not
to resuscitate ineffective.
  2.  (a)  If  the  attending  physician OR ATTENDING NURSE PRACTITIONER
determines at any time that an order not to  resuscitate  is  no  longer
appropriate  because  the  patient's medical condition has improved, the
physician OR NURSE PRACTITIONER shall immediately notify the person  who
consented  to  the  order.  Except  as provided in paragraph (b) of this
subdivision, if such person declines to revoke consent to the order, the
physician OR NURSE  PRACTITIONER  shall  promptly  (i)  make  reasonable
efforts  to arrange for the transfer of the patient to another physician
or (ii) submit the matter to the dispute mediation system.
  (b) If the order not to resuscitate was entered upon the consent of  a
surrogate,  parent,  or  legal  guardian  and the attending physician OR
ATTENDING NURSE PRACTITIONER who issued the order, or,  if  unavailable,
another  attending physician OR ATTENDING NURSE PRACTITIONER at any time
determines that the patient does not suffer  from  one  of  the  medical
conditions  set  forth  in paragraph (c) of subdivision three of section
twenty-nine hundred sixty-five of this article, the attending  physician
OR  ATTENDING NURSE PRACTITIONER shall immediately include such determi-
nation in the patient's chart, cancel the order, and notify  the  person
who  consented  to  the order and all hospital staff responsible for the
patient's care of the cancellation.
  (c) If an order not to resuscitate was entered upon the consent  of  a
surrogate  and  the  patient  at any time gains or regains capacity, the
attending physician OR  ATTENDING  NURSE  PRACTITIONER  who  issued  the
order,  or,  if  unavailable,  another  attending physician OR ATTENDING
NURSE PRACTITIONER shall immediately cancel the  order  and  notify  the
person  who  consented  to  the  order  and  all hospital staff directly
responsible for the patient's care of the cancellation.
  S 12. The opening paragraph and subdivision 2 of section 2971  of  the
public  health  law,  as amended by chapter 370 of the laws of 1991, are
amended to read as follows:
  If a patient for whom an order not to resuscitate has been  issued  is
transferred  from  a  hospital  to  a different hospital the order shall
remain effective, unless revoked pursuant to  this  article,  until  the
attending  physician  OR ATTENDING NURSE PRACTITIONER first examines the

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transferred patient, whereupon  the  attending  physician  OR  ATTENDING
NURSE PRACTITIONER must either:
  2.  Cancel the order not to resuscitate, provided the attending physi-
cian OR ATTENDING NURSE PRACTITIONER immediately notifies the person who
consented to the order and the hospital staff directly  responsible  for
the  patient's  care  of  the  cancellation.  Such cancellation does not
preclude the entry of a new order pursuant to this article.
  S 13. Subdivisions 1, 2 and 4 of section 2972  of  the  public  health
law,  subdivisions  1 and 4 as added by chapter 818 of the laws of 1987,
paragraph (b) of subdivision 1 as amended by chapter 370 of the laws  of
1991  and subdivision 2 as amended by chapter 8 of the laws of 2010, are
amended to read as follows:
  1. (a) Each hospital  shall  establish  a  mediation  system  for  the
purpose  of  mediating  disputes regarding the issuance of orders not to
resuscitate.
  (b) The dispute mediation system shall be  described  in  writing  and
adopted  by  the hospital's governing authority. It may utilize existing
hospital resources, such as a  patient  advocate's  office  or  hospital
chaplain's  office,  or  it  may utilize a body created specifically for
this purpose, but, in the event a dispute involves a patient  deemed  to
lack  capacity  pursuant  to  (i)  paragraph (b) of subdivision three of
section twenty-nine hundred sixty-three of this article, the system must
include a physician OR NURSE PRACTITIONER eligible to provide a  concur-
ring  determination  pursuant to such subdivision, or a family member or
guardian of the person of a person with a mental illness of the same  or
similar  nature,  or  (ii) paragraph (c) of subdivision three of section
twenty-nine hundred sixty-three of this article, the system must include
a physician OR NURSE  PRACTITIONER  eligible  to  provide  a  concurring
determination pursuant to such subdivision, or a family member or guard-
ian  of  the  person  of a person with a developmental disability of the
same or similar nature.
  2. The dispute mediation system shall be  authorized  to  mediate  any
dispute, including disputes regarding the determination of the patient's
capacity,  arising under this article between the patient and an attend-
ing physician, ATTENDING NURSE PRACTITIONER  or  the  hospital  that  is
caring  for  the  patient  and, if the patient is a minor, the patient's
parent,  or  among  an   attending   physician,   AN   ATTENDING   NURSE
PRACTITIONER,  a  parent,  non-custodial  parent, or legal guardian of a
minor patient, any person on the surrogate list, and the  hospital  that
is caring for the patient.
  4.  If  a dispute between a patient who expressed a decision rejecting
cardiopulmonary resuscitation  and  an  attending  physician,  ATTENDING
NURSE  PRACTITIONER  or  the  hospital that is caring for the patient is
submitted to the dispute mediation system, and either:
  (a) the dispute mediation system has concluded its efforts to  resolve
the dispute, or
  (b) seventy-two hours have elapsed from the time of submission without
resolution  of  the  dispute, whichever shall occur first, the attending
physician OR ATTENDING NURSE PRACTITIONER  shall  either:  (i)  promptly
issue an order not to resuscitate the patient or issue the order at such
time  as  the conditions, if any, specified in the decision are met, and
inform the hospital staff responsible for  the  patient's  care  of  the
order;  or  (ii)  promptly  arrange  for  the transfer of the patient to
another physician, NURSE PRACTITIONER or hospital.
  S 14. Subdivision 1 of section 2973  of  the  public  health  law,  as
amended by chapter 8 of the laws of 2010, is amended to read as follows:

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  1.  The patient, an attending physician, ATTENDING NURSE PRACTITIONER,
a parent, non-custodial parent, or legal guardian of  a  minor  patient,
any  person  on  the surrogate list, the hospital that is caring for the
patient and the facility director, may  commence  a  special  proceeding
pursuant to article four of the civil practice law and rules, in a court
of  competent  jurisdiction,  with  respect to any dispute arising under
this article, except that the decision of a patient not  to  consent  to
issuance of an order not to resuscitate may not be subjected to judicial
review. In any proceeding brought pursuant to this subdivision challeng-
ing  a decision regarding issuance of an order not to resuscitate on the
ground that the decision is contrary to the  patient's  wishes  or  best
interests,  the  person or entity challenging the decision must show, by
clear and convincing evidence, that the  decision  is  contrary  to  the
patient's  wishes including consideration of the patient's religious and
moral beliefs, or, in the absence of evidence of the  patient's  wishes,
that  the  decision  is contrary to the patient's best interests. In any
other proceeding brought pursuant to this subdivision, the  court  shall
make  its  determination based upon the applicable substantive standards
and procedures set forth in this article.
  S 15. Section 2976 of the public health law, as added by  chapter  818
of the laws of 1987, is amended to read as follows:
  S  2976. Judicially approved order not to resuscitate. 1. If no surro-
gate is reasonably available, willing to make a decision regarding issu-
ance of an order not to resuscitate, and competent to  make  a  decision
regarding  issuance of an order not to resuscitate on behalf of an adult
patient who lacks capacity and who had not previously expressed a  deci-
sion  regarding  cardiopulmonary resuscitation pursuant to this article,
an attending physician OR ATTENDING NURSE PRACTITIONER or  hospital  may
commence  a  special  proceeding  pursuant  to article four of the civil
practice law and rules, in a court  of  competent  jurisdiction,  for  a
judgment directing the physician OR NURSE PRACTITIONER to issue an order
not to resuscitate where the patient has a terminal condition, is perma-
nently  unconscious,  or  resuscitation  would  impose  an extraordinary
burden on the patient in light of the patient's  medical  condition  and
the  expected  outcome of resuscitation for the patient, and issuance of
an order not to resuscitate is  consistent  with  the  patient's  wishes
including  a  consideration of the patient's religious and moral beliefs
or, in the absence of evidence of the patient's  wishes,  the  patient's
best interests.
  2.  Nothing  in this article shall be construed to preclude a court of
competent jurisdiction from approving the issuance of an  order  not  to
resuscitate  under  circumstances  other  than those under which such an
order may be issued pursuant to this article.
  S 16. Subdivisions 2 and 4 of section 2994-a of the public health law,
as added by chapter 8 of the laws of  2010,  are  amended  and  two  new
subdivisions 2-a and 22-a are added to read as follows:
  2. "Attending physician" means a physician, selected by or assigned to
a  patient  pursuant  to hospital policy, who has primary responsibility
for the treatment and care of the patient. Where more than one physician
AND/OR NURSE PRACTITIONER shares such responsibility, or where a  physi-
cian  OR  NURSE  PRACTITIONER  is acting on the attending physician's OR
ATTENDING NURSE PRACTITIONER'S behalf, any such physician OR NURSE PRAC-
TITIONER may act as an attending physician OR  ATTENDING  NURSE  PRACTI-
TIONER pursuant to this article.
  2-A.  "ATTENDING  NURSE  PRACTITIONER"  MEANS  A  NURSE  PRACTITIONER,
SELECTED BY OR ASSIGNED TO A PATIENT PURSUANT TO  HOSPITAL  POLICY,  WHO

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HAS  PRIMARY  RESPONSIBILITY  FOR THE TREATMENT AND CARE OF THE PATIENT.
WHERE MORE THAN ONE PHYSICIAN  AND/OR  NURSE  PRACTITIONER  SHARES  SUCH
RESPONSIBILITY,  OR WHERE A PHYSICIAN OR NURSE PRACTITIONER IS ACTING ON
THE  ATTENDING PHYSICIAN'S OR ATTENDING NURSE PRACTITIONER'S BEHALF, ANY
SUCH PHYSICIAN OR NURSE PRACTITIONER MAY ACT AS AN  ATTENDING  PHYSICIAN
OR ATTENDING NURSE PRACTITIONER PURSUANT TO THIS ARTICLE.
  4.  "Close  friend"  means any person, eighteen years of age or older,
who is a close friend of the patient,  or  a  relative  of  the  patient
(other  than  a spouse, adult child, parent, brother or sister), who has
maintained such regular contact with the patient as to be familiar  with
the  patient's  activities,  health, and religious or moral beliefs, and
who presents a signed statement to that effect to the  attending  physi-
cian OR ATTENDING NURSE PRACTITIONER.
  22-A. "NURSE PRACTITIONER" MEANS A NURSE PRACTITIONER CERTIFIED PURSU-
ANT  TO SECTION SIXTY-NINE HUNDRED TEN OF THE EDUCATION LAW WHO IS PRAC-
TICING IN  ACCORDANCE  WITH  SUBDIVISION  THREE  OF  SECTION  SIXTY-NINE
HUNDRED TWO OF THE EDUCATION LAW.
  S 17. Subdivisions 2 and 3 of section 2994-b of the public health law,
as  added  by  chapter  8  of  the  laws of 2010, are amended to read as
follows:
  2. Prior to seeking or relying upon a health care decision by a surro-
gate for a patient  under  this  article,  the  attending  physician  OR
ATTENDING  NURSE PRACTITIONER shall make reasonable efforts to determine
whether the patient has a health care agent appointed pursuant to  arti-
cle  twenty-nine-C of this chapter. If so, health care decisions for the
patient shall be governed by such article, and shall have priority  over
decisions  by  any  other  person  except  the  patient  or as otherwise
provided in the health care proxy.
  3. Prior to seeking or relying upon a health care decision by a surro-
gate for a patient under this article, if  the  attending  physician  OR
ATTENDING  NURSE PRACTITIONER has reason to believe that the patient has
a history of receiving services for mental  retardation  or  a  develop-
mental  disability;  it reasonably appears to the attending physician OR
ATTENDING NURSE PRACTITIONER that the patient has mental retardation  or
a  developmental  disability;  or  the  attending physician OR ATTENDING
NURSE PRACTITIONER has reason to  believe  that  the  patient  has  been
transferred  from  a mental hygiene facility operated or licensed by the
office of mental health, then such physician OR NURSE PRACTITIONER shall
make reasonable efforts to determine whether paragraphs (a), (b) or  (c)
of this subdivision are applicable:
  (a)  If  the  patient  has a guardian appointed by a court pursuant to
article seventeen-A of the surrogate's court procedure act, health  care
decisions for the patient shall be governed by section seventeen hundred
fifty-b  of  the surrogate's court [proceedure] PROCEDURE act and not by
this article.
  (b) If a patient does not have a guardian appointed by a court  pursu-
ant  to  article  seventeen-A of the surrogate's court procedure act but
falls within the class of persons described in paragraph (a) of subdivi-
sion one of section seventeen hundred fifty-b of such act, decisions  to
withdraw  or withhold life-sustaining treatment for the patient shall be
governed by section seventeen hundred fifty-b of the  surrogate's  court
procedure act and not by this article.
  (c) If a health care decision for a patient cannot be made under para-
graphs  (a) or (b) of this subdivision, but consent for the decision may
be provided pursuant to the mental hygiene law  or  regulations  of  the
office  of  mental  health or the office [of mental retardation and] FOR

A. 9859                            11

PEOPLE WITH developmental  disabilities,  then  the  decision  shall  be
governed by such statute or regulations and not by this article.
  S  18.  Subdivisions 2, 3 and 7 of section 2994-c of the public health
law, as added by chapter 8 of the laws of 2010, paragraph (b) of  subdi-
vision  3 as amended by chapter 167 of the laws of 2011 and subparagraph
(ii) of paragraph (c) of subdivision 3 as amended by section 8 of part J
of chapter 56 of the laws of 2012, are amended to read as follows:
  2. Initial determination by attending  physician  OR  ATTENDING  NURSE
PRACTITIONER.  An  attending  physician  OR ATTENDING NURSE PRACTITIONER
shall make an initial determination that an adult  patient  lacks  deci-
sion-making  capacity to a reasonable degree of medical certainty.  Such
determination shall include an assessment of the cause and extent of the
patient's incapacity and the likelihood that  the  patient  will  regain
decision-making capacity.
  3.  Concurring  determinations.  (a)  An  initial determination that a
patient lacks decision-making capacity shall be subject to a  concurring
determination, independently made, where required by this subdivision. A
concurring  determination  shall  include an assessment of the cause and
extent of the patient's incapacity and the likelihood that  the  patient
will  regain  decision-making  capacity,  and  shall  be included in the
patient's medical record. Hospitals shall adopt written policies identi-
fying the training and credentials of health or social services  practi-
tioners qualified to provide concurring determinations of incapacity.
  (b)  (i)  In  a  residential  health care facility, a health or social
services practitioner employed by or otherwise formally affiliated  with
the facility must independently determine whether an adult patient lacks
decision-making capacity.
  (ii)  In  a  general hospital a health or social services practitioner
employed by or otherwise formally  affiliated  with  the  facility  must
independently  determine  whether an adult patient lacks decision-making
capacity if the surrogate's decision concerns the  withdrawal  or  with-
holding of life-sustaining treatment.
  (iii)  With  respect to decisions regarding hospice care for a patient
in a general hospital or residential health care facility, the health or
social services practitioner must be employed by or  otherwise  formally
affiliated  with the general hospital or residential health care facili-
ty.
  (c) (i) If the attending physician  OR  ATTENDING  NURSE  PRACTITIONER
makes  an  initial  determination  that  a patient lacks decision-making
capacity because of mental illness, either such physician must have  the
following qualifications, or another physician with the following quali-
fications  must  independently determine whether the patient lacks deci-
sion-making capacity: a physician licensed to practice medicine  in  New
York state, who is a diplomate or eligible to be certified by the Ameri-
can  Board of Psychiatry and Neurology or who is certified by the Ameri-
can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
certified by that board. A record of such consultation shall be included
in the patient's medical record.
  (ii)  If the attending physician OR ATTENDING NURSE PRACTITIONER makes
an initial determination that a patient lacks  decision-making  capacity
because  of  a  developmental disability, either such physician OR NURSE
PRACTITIONER must have the following qualifications, or another  profes-
sional  with  the  following qualifications must independently determine
whether the patient lacks decision-making capacity: a physician or clin-
ical psychologist who either is employed by a developmental disabilities
services office named in section 13.17 of the mental hygiene law, or who

A. 9859                            12

has been employed for a minimum of two years to render care and  service
in  a facility operated or licensed by the office for people with devel-
opmental disabilities, or has  been  approved  by  the  commissioner  of
developmental disabilities in accordance with regulations promulgated by
such  commissioner.  Such  regulations shall require that a physician or
clinical psychologist possess specialized training or three years  expe-
rience  in treating developmental disabilities. A record of such consul-
tation shall be included in the patient's medical record.
  (d) If an attending physician  OR  ATTENDING  NURSE  PRACTITIONER  has
determined  that  the  patient lacks decision-making capacity and if the
health or social services practitioner consulted for a concurring deter-
mination disagrees with the attending physician's OR THE ATTENDING NURSE
PRACTITIONER'S determination, the matter shall be referred to the ethics
review committee if it cannot otherwise be resolved.
  7. Confirmation of continued  lack  of  decision-making  capacity.  An
attending  physician  OR  ATTENDING NURSE PRACTITIONER shall confirm the
adult  patient's  continued  lack  of  decision-making  capacity  before
complying  with  health  care  decisions  made pursuant to this article,
other than those decisions made at or about  the  time  of  the  initial
determination.  A  concurring  determination  of the patient's continued
lack of decision-making capacity shall be  required  if  the  subsequent
health care decision concerns the withholding or withdrawal of life-sus-
taining treatment. Health care providers shall not be required to inform
the patient or surrogate of the confirmation.
  S  19.  Subdivisions 2, 3 and 5 of section 2994-d of the public health
law, as added by chapter 8 of the laws of 2010, the subdivision  heading
and  the opening paragraph of subdivision 5 as amended by chapter 167 of
the laws of 2011, are amended to read as follows:
  2. Restrictions on who may be a surrogate. An operator, administrator,
or employee of a hospital or a mental hygiene facility  from  which  the
patient  was  transferred,  or a physician OR NURSE PRACTITIONER who has
privileges at the hospital or a health care provider under contract with
the hospital may not serve as the surrogate  for  any  adult  who  is  a
patient  of  such  hospital,  unless  such  individual is related to the
patient by blood, marriage, domestic partnership, or adoption, or  is  a
close  friend  of the patient whose friendship with the patient preceded
the patient's admission to the facility. If a physician OR NURSE PRACTI-
TIONER serves as surrogate, the physician OR  NURSE  PRACTITIONER  shall
not  act as the patient's attending physician OR ATTENDING NURSE PRACTI-
TIONER after his or her authority as surrogate begins.
  3. Authority and duties of surrogate. (a) Scope of surrogate's author-
ity.
  (i) Subject to the standards and  limitations  of  this  article,  the
surrogate shall have the authority to make any and all health care deci-
sions on the adult patient's behalf that the patient could make.
  (ii)  Nothing  in this article shall obligate health care providers to
seek the consent of a surrogate if an adult patient has already  made  a
decision  about the proposed health care, expressed orally or in writing
or, with respect to a decision to withdraw or  withhold  life-sustaining
treatment expressed either orally during hospitalization in the presence
of two witnesses eighteen years of age or older, at least one of whom is
a  health  or social services practitioner affiliated with the hospital,
or in writing. If an attending physician OR ATTENDING NURSE PRACTITIONER
relies on the patient's prior decision, the physician OR  NURSE  PRACTI-
TIONER  shall record the prior decision in the patient's medical record.
If a surrogate has already been designated for the patient, the  attend-

A. 9859                            13

ing  physician  OR  ATTENDING  NURSE  PRACTITIONER shall make reasonable
efforts to notify the surrogate  prior  to  implementing  the  decision;
provided  that  in  the case of a decision to withdraw or withhold life-
sustaining treatment, the attending physician OR ATTENDING NURSE PRACTI-
TIONER  shall  make  diligent  efforts  to  notify the surrogate and, if
unable to notify the surrogate, shall document  the  efforts  that  were
made to do so.
  (b)  Commencement  of surrogate's authority. The surrogate's authority
shall commence upon a determination, made pursuant  to  section  twenty-
nine hundred ninety-four-c of this article, that the adult patient lacks
decision-making capacity and upon identification of a surrogate pursuant
to  subdivision one of this section. In the event an attending physician
OR NURSE PRACTITIONER determines that the  patient  has  regained  deci-
sion-making capacity, the authority of the surrogate shall cease.
  (c)  Right  and  duty  to  be informed. Notwithstanding any law to the
contrary, the surrogate shall have the right to receive medical informa-
tion and medical records necessary to make informed decisions about  the
patient's  health  care.  Health  care  providers  shall provide and the
surrogate shall seek information necessary to make an informed decision,
including information about  the  patient's  diagnosis,  prognosis,  the
nature  and  consequences  of proposed health care, and the benefits and
risks of and alternative to proposed health care.
  5. Decisions to withhold or  withdraw  life-sustaining  treatment.  In
addition to the standards set forth in subdivision four of this section,
decisions  by  surrogates to withhold or withdraw life-sustaining treat-
ment (including decisions to accept a hospice plan of care that provides
for the withdrawal or withholding of life-sustaining treatment) shall be
authorized only if the following conditions are satisfied,  as  applica-
ble:
  (a)(i)  Treatment  would be an extraordinary burden to the patient and
an attending physician OR ATTENDING NURSE PRACTITIONER determines,  with
the  independent concurrence of another physician OR NURSE PRACTITIONER,
that, to a reasonable degree of medical certainty  and  in  accord  with
accepted  medical  standards,  (A)  the patient has an illness or injury
which can be expected to cause death within six months, whether  or  not
treatment is provided; or (B) the patient is permanently unconscious; or
  (ii)  The provision of treatment would involve such pain, suffering or
other burden that it would reasonably be  deemed  inhumane  or  extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending physician
OR  ATTENDING  NURSE  PRACTITIONER  with  the independent concurrence of
another physician OR  NURSE  PRACTITIONER  to  a  reasonable  degree  of
medical certainty and in accord with accepted medical standards.
  (b)  In a residential health care facility, a surrogate shall have the
authority to refuse life-sustaining treatment under subparagraph (ii) of
paragraph (a) of this subdivision only if the ethics  review  committee,
including  at  least  one  physician  OR  NURSE  PRACTITIONER who is not
directly responsible for the patient's care, or  a  court  of  competent
jurisdiction,  reviews  the  decision  and  determines that it meets the
standards set forth in this article. This requirement shall not apply to
a decision to withhold cardiopulmonary resuscitation.
  (c) In a general hospital, if the  attending  physician  OR  ATTENDING
NURSE PRACTITIONER objects to a surrogate's decision, under subparagraph
(ii)  of  paragraph  (a)  of  this  subdivision, to withdraw or withhold
nutrition and hydration provided by  means  of  medical  treatment,  the
decision  shall  not  be  implemented until the ethics review committee,

A. 9859                            14

including at least one  physician  OR  NURSE  PRACTITIONER  who  is  not
directly  responsible  for  the  patient's care, or a court of competent
jurisdiction, reviews the decision and  determines  that  it  meets  the
standards  set  forth  in  this subdivision and subdivision four of this
section.
  (d) Providing nutrition and  hydration  orally,  without  reliance  on
medical  treatment,  is  not  health  care under this article and is not
subject to this article.
  (e) Expression of decisions. The surrogate shall express a decision to
withdraw or withhold  life-sustaining  treatment  either  orally  to  an
attending physician OR ATTENDING NURSE PRACTITIONER or in writing.
  S 20. Subdivisions 2 and 3 of section 2994-e of the public health law,
as  added  by  chapter  8  of  the  laws of 2010, are amended to read as
follows:
  2. Decision-making standards and procedures for minor patient. (a) The
parent or guardian of a minor patient shall make decisions in accordance
with the minor's best interests, consistent with the standards set forth
in subdivision four of section twenty-nine hundred ninety-four-d of this
article, taking into account the minor's wishes as appropriate under the
circumstances.
  (b) An attending physician OR ATTENDING NURSE PRACTITIONER, in consul-
tation with a minor's parent or  guardian,  shall  determine  whether  a
minor patient has decision-making capacity for a decision to withhold or
withdraw  life-sustaining  treatment.  If the minor has such capacity, a
parent's or guardian's decision to withhold or withdraw  life-sustaining
treatment  for  the  minor  may  not  be implemented without the minor's
consent.
  (c) Where a parent or guardian of a minor patient has made a  decision
to  withhold  or  withdraw  life-sustaining  treatment  and an attending
physician OR ATTENDING NURSE PRACTITIONER has reason to believe that the
minor patient has a parent or guardian who has not been informed of  the
decision,  including  a  non-custodial  parent or guardian, an attending
physician,ATTENDING NURSE PRACTITIONER or someone acting on his  or  her
behalf,  shall  make  reasonable  efforts to determine if the uninformed
parent or guardian has maintained  substantial  and  continuous  contact
with  the  minor  and, if so, shall make diligent efforts to notify that
parent or guardian prior to implementing the decision.
  3. Decision-making standards  and  procedures  for  emancipated  minor
patient.  (a)  If an attending physician OR ATTENDING NURSE PRACTITIONER
determines that a patient is an emancipated  minor  patient  with  deci-
sion-making  capacity,  the  patient  shall have the authority to decide
about life-sustaining treatment. Such authority shall include a decision
to withhold or withdraw life-sustaining treatment if an attending physi-
cian OR ATTENDING NURSE PRACTITIONER and  the  ethics  review  committee
determine  that  the  decision  accords with the standards for surrogate
decisions for adults, and the ethics review committee approves the deci-
sion.
  (b) If the hospital can with reasonable efforts ascertain the identity
of the parents or guardian of an emancipated minor patient, the hospital
shall notify such persons prior to withholding or withdrawing  life-sus-
taining treatment pursuant to this subdivision.
  S  21.  Section 2994-f of the public health law, as added by chapter 8
of the laws of 2010, is amended to read as follows:
  S 2994-f. Obligations of attending physician OR ATTENDING NURSE  PRAC-
TITIONER.  1.  An  attending  physician  OR ATTENDING NURSE PRACTITIONER
informed of a decision to withdraw or withhold life-sustaining treatment

A. 9859                            15

made pursuant to the standards of this article shall record the decision
in the patient's medical record, review the medical basis for the  deci-
sion, and shall either: (a) implement the decision, or (b) promptly make
his  or  her objection to the decision and the reasons for the objection
known to the decision-maker, and either make all reasonable  efforts  to
arrange  for  the  transfer of the patient to another physician OR NURSE
PRACTITIONER, if necessary, or promptly refer the matter to  the  ethics
review committee.
  2. If an attending physician OR ATTENDING NURSE PRACTITIONER has actu-
al  notice of the following objections or disagreements, he or she shall
promptly refer  the  matter  to  the  ethics  review  committee  if  the
objection or disagreement cannot otherwise be resolved:
  (a)  A  health or social services practitioner consulted for a concur-
ring determination that an adult patient lacks decision-making  capacity
disagrees  with the attending physician's OR ATTENDING NURSE PRACTITION-
ER'S determination; or
  (b) Any person on the surrogate list objects to the designation of the
surrogate pursuant to subdivision one  of  section  twenty-nine  hundred
ninety-four-d of this article; or
  (c)  Any  person  on the surrogate list objects to a surrogate's deci-
sion; or
  (d) A parent or guardian of a minor patient objects to the decision by
another parent or guardian of the minor; or
  (e) A minor patient refuses life-sustaining treatment, and the minor's
parent or guardian wishes the treatment to be  provided,  or  the  minor
patient  objects  to an attending physician's OR ATTENDING NURSE PRACTI-
TIONER'S determination about decision-making capacity or  recommendation
about life-sustaining treatment.
  3.  Notwithstanding  the provisions of this section or subdivision one
of section twenty-nine hundred  ninety-four-q  of  this  article,  if  a
surrogate directs the provision of life-sustaining treatment, the denial
of which in reasonable medical judgment would be likely to result in the
death of the patient, a hospital or individual health care provider that
does  not  wish  to provide such treatment shall nonetheless comply with
the surrogate's decision pending either transfer of  the  patient  to  a
willing  hospital or individual health care provider, or judicial review
in accordance with section twenty-nine  hundred  ninety-four-r  of  this
article.
  S  22.  Subdivisions  3,4,5, 5-a and 6 of section 2994-g of the public
health law, subdivisions 3, 4, 5 and 6 as added by chapter 8 of the laws
of 2010, subparagraph (iii) of paragraph (b) of subdivision 4 as amended
by chapter 167 of the laws of 2011 and subdivision 5-a as added by chap-
ter 107 of the laws of 2015, are amended to read as follows:
  3. Routine medical treatment. (a) For purposes  of  this  subdivision,
"routine  medical  treatment" means any treatment, service, or procedure
to diagnose or treat an individual's physical or mental condition,  such
as the administration of medication, the extraction of bodily fluids for
analysis,  or  dental  care performed with a local anesthetic, for which
health care providers ordinarily do not seek specific consent  from  the
patient or authorized representative. It shall not include the long-term
provision  of treatment such as ventilator support or a nasogastric tube
but shall include such treatment when provided as part of post-operative
care or in response to an  acute  illness  and  recovery  is  reasonably
expected within one month or less.
  (b)  An  attending  physician OR ATTENDING NURSE PRACTITIONER shall be
authorized to decide  about  routine  medical  treatment  for  an  adult

A. 9859                            16

patient  who has been determined to lack decision-making capacity pursu-
ant to section twenty-nine hundred ninety-four-c of this article.  Noth-
ing  in  this  subdivision shall require health care providers to obtain
specific  consent  for treatment where specific consent is not otherwise
required by law.
  4. Major medical treatment. (a)  For  purposes  of  this  subdivision,
"major  medical  treatment" means any treatment, service or procedure to
diagnose or treat an individual's  physical  or  mental  condition:  (i)
where general anesthetic is used; or (ii) which involves any significant
risk;  or (iii) which involves any significant invasion of bodily integ-
rity requiring an  incision,  producing  substantial  pain,  discomfort,
debilitation  or  having  a  significant  recovery period; or (iv) which
involves the use of physical restraints,  as  specified  in  regulations
promulgated  by  the  commissioner, except in an emergency; or (v) which
involves the use of psychoactive medications, except  when  provided  as
part  of  post-operative  care  or  in  response to an acute illness and
treatment is reasonably expected to be administered  over  a  period  of
forty-eight hours or less, or when provided in an emergency.
  (b)  A decision to provide major medical treatment, made in accordance
with the following  requirements,  shall  be  authorized  for  an  adult
patient  who has been determined to lack decision-making capacity pursu-
ant to section twenty-nine hundred ninety-four-c of this article.
  (i) An attending physician OR ATTENDING NURSE PRACTITIONER shall  make
a  recommendation in consultation with hospital staff directly responsi-
ble for the patient's care.
  (ii) In a general hospital, at least  one  other  physician  OR  NURSE
PRACTITIONER  designated  by  the  hospital must independently determine
that he or she concurs that the recommendation is appropriate.
  (iii) In a residential health care facility, and for a hospice patient
not in a general hospital, the  medical  director  of  the  facility  or
hospice,  or a physician OR NURSE PRACTITIONER designated by the medical
director, must independently determine that he or she concurs  that  the
recommendation  is appropriate; provided that if the medical director is
the patient's attending physician OR  ATTENDING  NURSE  PRACTITIONER,  a
different  physician OR NURSE PRACTITIONER designated by the residential
health care facility or hospice  must  make  this  independent  determi-
nation. Any health or social services practitioner employed by or other-
wise  formally  affiliated  with  the  facility or hospice may provide a
second opinion for decisions about physical restraints made pursuant  to
this subdivision.
  5.  Decisions to withhold or withdraw life-sustaining treatment. (a) A
court of competent jurisdiction may make a decision to withhold or with-
draw life-sustaining treatment for an adult patient who has been  deter-
mined  to  lack decision-making capacity pursuant to section twenty-nine
hundred ninety-four-c of this article if the court finds that the  deci-
sion accords with standards for decisions for adults set forth in subdi-
visions  four  and  five of section twenty-nine hundred ninety-four-d of
this article.
  (b) If the attending physician OR ATTENDING NURSE  PRACTITIONER,  with
independent  concurrence  of  a  second  physician OR NURSE PRACTITIONER
designated by the hospital, determines to a reasonable degree of medical
certainty that:
  (i) life-sustaining treatment offers the patient  no  medical  benefit
because  the  patient  will  die  imminently,  even  if the treatment is
provided; and

A. 9859                            17

  (ii) the provision of life-sustaining treatment would violate accepted
medical standards, then such treatment may be withdrawn or withheld from
an adult patient who has been determined to lack decision-making capaci-
ty pursuant to section twenty-nine hundred ninety-four-c of  this  arti-
cle,  without  judicial  approval. This paragraph shall not apply to any
treatment necessary to alleviate pain or discomfort.
  5-a. Decisions regarding  hospice  care.  An  attending  physician  OR
ATTENDING  NURSE  PRACTITIONER  shall  be  authorized  to make decisions
regarding hospice care and execute appropriate documents for such  deci-
sions  (including  a  hospice  election form) for an adult patient under
this section who is hospice eligible in accordance  with  the  following
requirements.
  (a) The attending physician OR ATTENDING NURSE PRACTITIONER shall make
decisions under this section in consultation with staff directly respon-
sible for the patient's care, and shall base his or her decisions on the
standards  for  surrogate  decisions  set forth in subdivisions four and
five of section twenty-nine hundred ninety-four-d of this article;
  (b) There is a concurring opinion as follows:
  (i) in a general hospital, at least one other physician OR NURSE PRAC-
TITIONER designated by the hospital must independently determine that he
or she concurs that the recommendation is consistent with such standards
for surrogate decisions;
  (ii) in a residential health care facility, the  medical  director  of
the  facility,  or  a  physician OR NURSE PRACTITIONER designated by the
medical director, must independently determine that he  or  she  concurs
that  the recommendation is consistent with such standards for surrogate
decisions; provided that  if  the  medical  director  is  the  patient's
attending  physician OR ATTENDING NURSE PRACTITIONER, a different physi-
cian OR NURSE PRACTITIONER designated by  the  residential  health  care
facility must make this independent determination; or
  (iii)  in settings other than a general hospital or residential health
care facility, the medical director  of  the  hospice,  or  a  physician
designated by the medical director, must independently determine that he
or  she  concurs  that  the  recommendation is medically appropriate and
consistent with such standards for surrogate decisions; provided that if
the medical director is the patient's attending physician  OR  ATTENDING
NURSE  PRACTITIONER,  a different physician OR NURSE PRACTITIONER desig-
nated by the hospice must make this independent determination; and
  (c) The ethics review committee of the general  hospital,  residential
health  care  facility or hospice, as applicable, including at least one
physician OR NURSE PRACTITIONER  who  is  not  the  patient's  attending
physician  OR  ATTENDING  NURSE  PRACTITIONER,  or  a court of competent
jurisdiction, must review the decision and determine that it is consist-
ent with such standards for surrogate decisions.
  6. Physician OR NURSE PRACTITIONER objection. If a physician OR  NURSE
PRACTITIONER  consulted for a concurring opinion objects to an attending
physician's OR ATTENDING NURSE PRACTITIONER'S recommendation or determi-
nation made pursuant to this section, or a member of the hospital  staff
directly  responsible  for  the  patient's  care objects to an attending
physician's OR ATTENDING NURSE PRACTITIONER'S recommendation about major
medical treatment or treatment without medical benefit, the matter shall
be referred to the ethics review committee if  it  cannot  be  otherwise
resolved.
  S  23.  Section 2994-j of the public health law, as added by chapter 8
of the laws of 2010, is amended read as follows:

A. 9859                            18

  S 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
guardian of a minor patient may at any time revoke his or her consent to
withhold or withdraw life-sustaining treatment by informing an attending
physician, ATTENDING NURSE PRACTITIONER or a member of  the  medical  or
nursing staff of the revocation.
  2.  An attending physician OR ATTENDING NURSE PRACTITIONER informed of
a revocation of consent made pursuant to this section shall immediately:
  (a) record the revocation in the patient's medical record;
  (b) cancel any orders implementing the decision to withhold  or  with-
draw treatment; and
  (c)  notify  the hospital staff directly responsible for the patient's
care of the revocation and any cancellations.
  3. Any member of the medical or nursing  staff,  OTHER  THAN  A  NURSE
PRACTITIONER,  informed  of  a  revocation made pursuant to this section
shall immediately notify an attending physician OR ATTENDING NURSE PRAC-
TITIONER of the revocation.
  S 24. The opening paragraph of subdivision 2 of section 2994-k of  the
public health law, as added by chapter 8 of the laws of 2010, is amended
to read as follows:
  If  a  decision  to withhold or withdraw life-sustaining treatment has
been made pursuant to  this  article,  and  an  attending  physician  OR
ATTENDING NURSE PRACTITIONER determines at any time that the decision is
no  longer  appropriate  or  authorized because the patient has regained
decision-making capacity or because the patient's condition  has  other-
wise improved, the physician OR NURSE PRACTITIONER shall immediately:
  S  25.  Section 2994-l of the public health law, as added by chapter 8
of the laws of 2010, is amended to read as follows:
  S 2994-l. Interinstitutional transfers. If a patient with an order  to
withhold  or  withdraw  life-sustaining  treatment is transferred from a
mental hygiene facility to a hospital or from a hospital to a  different
hospital, any such order or plan shall remain effective until an attend-
ing  physician OR ATTENDING NURSE PRACTITIONER first examines the trans-
ferred patient, whereupon an  attending  physician  OR  ATTENDING  NURSE
PRACTITIONER must either:
  1.  Issue appropriate orders to continue the prior order or plan. Such
orders may be issued without obtaining another consent  to  withhold  or
withdraw life-sustaining treatment pursuant to this article; or
  2.  Cancel  such  order, if the attending physician OR ATTENDING NURSE
PRACTITIONER determines that the  order  is  no  longer  appropriate  or
authorized.  Before  canceling  the  order  the  attending  physician OR
ATTENDING NURSE PRACTITIONER shall make reasonable efforts to notify the
person who made the decision to withhold or withdraw treatment  and  the
hospital  staff  directly responsible for the patient's care of any such
cancellation. If such notice cannot reasonably be made prior to  cancel-
ing  the order or plan, the attending physician OR ATTENDING NURSE PRAC-
TITIONER shall make such notice as soon as reasonably practicable  after
cancellation.
  S 26. Subdivisions 3 and 4 of section 2994-m of the public health law,
as  added by chapter 8 of the laws of 2010 and paragraph (c) of subdivi-
sion 4 as added by chapter 167 of the laws of 2011, are amended to  read
as follows:
  3.  Committee  membership.  The membership of ethics review committees
must be interdisciplinary and must include at  least  five  members  who
have demonstrated an interest in or commitment to patient's rights or to
the  medical,  public  health,  or social needs of those who are ill. At
least three ethics review committee members must  be  health  or  social

A. 9859                            19

services  practitioners, at least one of whom must be a registered nurse
and one of whom must be a physician OR NURSE PRACTITIONER.  At least one
member must be a person without any governance, employment or contractu-
al relationship with the hospital. In a residential health care facility
the  facility  must  offer the residents' council of the facility (or of
another facility that participates in the committee) the opportunity  to
appoint  up  to two persons to the ethics review committee, none of whom
may be a resident of or a family member of a resident of such  facility,
and  both  of  whom  shall  be persons who have expertise in or a demon-
strated commitment to patient rights or to the care and treatment of the
elderly or nursing home  residents  through  professional  or  community
activities, other than activities performed as a health care provider.
  4.  Procedures  for  ethics review committee. (a) These procedures are
required only when: (i) the  ethics  review  committee  is  convened  to
review a decision by a surrogate to withhold or withdraw life-sustaining
treatment  for:  (A)  a  patient  in  a residential health care facility
pursuant to paragraph (b) of subdivision  five  of  section  twenty-nine
hundred ninety-four-d of this article; (B) a patient in a general hospi-
tal pursuant to paragraph (c) of subdivision five of section twenty-nine
hundred  ninety-four-d  of  this  article;  or  (C) an emancipated minor
patient pursuant to subdivision three  of  section  twenty-nine  hundred
ninety-four-e  of this article; or (ii) when a person connected with the
case requests the ethics  review  committee  to  provide  assistance  in
resolving  a  dispute about proposed care. Nothing in this section shall
bar health care  providers  from  first  striving  to  resolve  disputes
through  less  formal  means,  including  the  informal  solicitation of
ethical advice from any source.
  (b)(i) A person connected with the case  may  not  participate  as  an
ethics review committee member in the consideration of that case.
  (ii)  The  ethics review committee shall respond promptly, as required
by the circumstances, to any  request  for  assistance  in  resolving  a
dispute or consideration of a decision to withhold or withdraw life-sus-
taining treatment pursuant to paragraphs (b) and (c) of subdivision five
of  section  twenty-nine hundred ninety-four-d of this article made by a
person connected with the  case.  The  committee  shall  permit  persons
connected  with the case to present their views to the committee, and to
have the option of being accompanied by an advisor when participating in
a committee meeting.
  (iii) The ethics review committee shall promptly provide the  patient,
where there is any indication of the patient's ability to comprehend the
information, the surrogate, other persons on the surrogate list directly
involved  in  the  decision or dispute regarding the patient's care, any
parent or guardian of a minor patient directly involved in the  decision
or  dispute  regarding the minor patient's care, an attending physician,
AN ATTENDING NURSE PRACTITIONER, the hospital,  and  other  persons  the
committee deems appropriate, with the following:
  (A)  notice  of any pending case consideration concerning the patient,
including, for patients, persons on  the  surrogate  list,  parents  and
guardians,  information  about the ethics review committee's procedures,
composition and function; and
  (B) the committee's response to the case, including a  written  state-
ment  of  the  reasons  for approving or disapproving the withholding or
withdrawal of life-sustaining treatment for decisions considered  pursu-
ant to subparagraph (ii) of paragraph (a) of subdivision five of section
twenty-nine  hundred  ninety-four-d  of  this  article.  The committee's
response to the case shall be included in the patient's medical record.

A. 9859                            20

  (iv)  Following  ethics  review  committee  consideration  of  a  case
concerning  the  withdrawal or withholding of life-sustaining treatment,
treatment shall not be withdrawn or withheld until the  persons  identi-
fied  in  subparagraph (iii) of this paragraph have been informed of the
committee's response to the case.
  (c)  When  an  ethics review committee is convened to review decisions
regarding hospice care for a patient in a general hospital  or  residen-
tial health care facility, the responsibilities of this section shall be
carried  out  by  the ethics review committee of the general hospital or
residential health care facility, provided  that  such  committee  shall
invite a representative from hospice to participate.
  S  27.  Paragraph (b) of subdivision 4 of section 2994-r of the public
health law, as added by chapter 8 of the laws of  2010,  is  amended  to
read as follows:
  (b) The following persons may commence a special proceeding in a court
of competent jurisdiction to seek appointment as the health care guardi-
an of a minor patient solely for the purpose of deciding about life-sus-
taining treatment pursuant to this article:
  (i) the hospital administrator;
  (ii) an attending physician OR ATTENDING NURSE PRACTITIONER;
  (iii)  the  local commissioner of social services or the local commis-
sioner of health, authorized to make medical treatment decisions for the
minor pursuant to section three hundred  eighty-three-b  of  the  social
services law; or
  (iv)  an  individual,  eighteen years of age or older, who has assumed
care of the minor for a substantial and continuous period of time.
  S 28. Subdivision 1 of section 2994-s of the  public  health  law,  as
added by chapter 8 of the laws of 2010, is amended to read as follows:
  1.  Any  hospital [or], attending physician OR NURSE PRACTITIONER that
refuses to honor a health care decision by a surrogate made pursuant  to
this  article and in accord with the standards set forth in this article
shall not be entitled to compensation for treatment, services, or proce-
dures refused by the surrogate, except that this subdivision  shall  not
apply:
  (a)  when  a  hospital [or], physician OR NURSE PRACTITIONER exercises
the rights granted by section twenty-nine hundred ninety-four-n of  this
article,  provided  that  the  physician, NURSE PRACTITIONER or hospital
promptly fulfills the  obligations  set  forth  in  section  twenty-nine
hundred ninety-four-n of this article;
  (b) while a matter is under consideration by the ethics review commit-
tee,  provided that the matter is promptly referred to and considered by
the committee;
  (c) in the event of a dispute between  individuals  on  the  surrogate
list; or
  (d)  if  the physician, NURSE PRACTITIONER or hospital prevails in any
litigation concerning the surrogate's decision to refuse the  treatment,
services  or  procedure.    Nothing  in  this section shall determine or
affect  how  disputes  among  individuals  on  the  surrogate  list  are
resolved.
  S  29.  Subdivision  2 of section 2994-aa of the public health law, as
added by chapter 8 of the laws of 2010, is amended and two new  subdivi-
sions 2-a and 13-a are added to read as follows:
  2. "Attending physician" means the physician who has primary responsi-
bility  for  the  treatment and care of the patient. Where more than one
physician OR NURSE PRACTITIONER shares  such  responsibility,  any  such

A. 9859                            21

physician  OR  NURSE  PRACTITIONER may act as the attending physician OR
ATTENDING NURSE PRACTITIONER pursuant to this article.
  2-A.  "ATTENDING  NURSE  PRACTITIONER"  MEANS  THE  NURSE PRACTITIONER
SELECTED BY OR ASSIGNED TO A PATIENT  IN  A  HOSPITAL  WHO  HAS  PRIMARY
RESPONSIBILITY  FOR  THE  TREATMENT  AND CARE OF THE PATIENT. WHERE MORE
THAN ONE PHYSICIAN AND/OR NURSE PRACTITIONER SHARES SUCH RESPONSIBILITY,
ANY SUCH PHYSICIAN OR NURSE PRACTITIONER MAY ACT AS THE ATTENDING PHYSI-
CIAN OR ATTENDING NURSE PRACTITIONER PURSUANT TO THIS ARTICLE.
  13-A. "NURSE PRACTITIONER" MEANS A NURSE PRACTITIONER CERTIFIED PURSU-
ANT TO SECTION SIXTY-NINE HUNDRED TEN OF THE EDUCATION LAW WHO IS  PRAC-
TICING  IN  ACCORDANCE  WITH  SUBDIVISION  THREE  OF  SECTION SIXTY-NINE
HUNDRED TWO OF THE EDUCATION LAW.
  S 30. Section 2994-cc of the public health law, as added by chapter  8
of  the laws of 2010, subdivision 4 as amended by section 131 of subpart
B of part C of chapter 62 of the laws of 2011, is  amended  to  read  as
follows:
  S  2994-cc.  Consent  to a nonhospital order not to resuscitate. 1. An
adult with decision-making capacity, a health care agent, or a surrogate
may consent to a nonhospital order not  to  resuscitate  orally  to  the
attending  physician OR ATTENDING NURSE PRACTITIONER or in writing. If a
patient consents to a nonhospital order not to resuscitate  while  in  a
correctional facility, notice of the patient's consent shall be given to
the  facility director and reasonable efforts shall be made to notify an
individual designated by the patient to receive such notice prior to the
issuance of the nonhospital order not to  resuscitate.  Notification  to
the  facility director or the individual designated by the patient shall
not delay issuance of a nonhospital order not to resuscitate.
  2. Consent by a health care agent shall be governed by  article  twen-
ty-nine-C of this chapter.
  3.  Consent by a surrogate shall be governed by article twenty-nine-CC
of this chapter, except that: (a) a  second  determination  of  capacity
shall  be  made by a health or social services practitioner; and (b) the
authority  of  the  ethics  review  committee  set  forth   in   article
twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
issued in a hospital.
  4. (a) When the concurrence of a second physician OR NURSE PRACTITION-
ER is sought to fulfill the requirements for the issuance of a nonhospi-
tal order not to resuscitate for patients in  a  correctional  facility,
such  second  physician  OR  NURSE PRACTITIONER shall be selected by the
chief medical officer of the department  of  corrections  and  community
supervision or his or her designee.
  (b)  When  the concurrence of a second physician OR NURSE PRACTITIONER
is sought to fulfill the requirements for the issuance of a  nonhospital
order not to resuscitate for hospice and home care patients, such second
physician OR NURSE PRACTITIONER shall be selected by the hospice medical
director or hospice nurse coordinator designated by the medical director
or  by  the home care services agency director of patient care services,
as appropriate to the patient.
  5. Consent by a patient or a surrogate  for  a  patient  in  a  mental
hygiene  facility  shall  be  governed  by article twenty-nine-B of this
chapter.
  S 31. Section 2994-dd of the public health law, as added by chapter  8
of the laws of 2010, subdivision 6 as amended by section 10 of part J of
chapter 56 of the laws of 2012, is amended to read as follows:
  S  2994-dd.  Managing  a  nonhospital order not to resuscitate. 1. The
attending physician OR ATTENDING NURSE  PRACTITIONER  shall  record  the

A. 9859                            22

issuance  of  a  nonhospital  order  not to resuscitate in the patient's
medical record.
  2. A nonhospital order not to resuscitate shall be issued upon a stan-
dard  form  prescribed  by the commissioner. The commissioner shall also
develop a standard bracelet that may be worn by a patient with a nonhos-
pital order not to resuscitate to identify that status; provided, howev-
er, that no person may require a patient to wear  such  a  bracelet  and
that no person may require a patient to wear such a bracelet as a condi-
tion  for honoring a nonhospital order not to resuscitate or for provid-
ing health care services.
  3. An attending physician OR  ATTENDING  NURSE  PRACTITIONER  who  has
issued a nonhospital order not to resuscitate, and who transfers care of
the patient to another physician OR NURSE PRACTITIONER, shall inform the
physician OR NURSE PRACTITIONER of the order.
  4.  For  each  patient for whom a nonhospital order not to resuscitate
has been issued, the attending physician OR ATTENDING NURSE PRACTITIONER
shall review whether the order is still  appropriate  in  light  of  the
patient's condition each time he or she examines the patient, whether in
the hospital or elsewhere, but at least every ninety days, provided that
the review need not occur more than once every seven days. The attending
physician OR ATTENDING NURSE PRACTITIONER shall record the review in the
patient's  medical  record  provided,  however, that a registered nurse,
OTHER THAN THE ATTENDING NURSE PRACTITIONER, who provides direct care to
the patient may record the review in the medical record at the direction
of the physician. In such case, the  attending  physician  OR  ATTENDING
NURSE  PRACTITIONER  shall  include  a confirmation of the review in the
patient's medical record within fourteen days of such review.    Failure
to comply with this subdivision shall not render a nonhospital order not
to resuscitate ineffective.
  5.  A  person who has consented to a nonhospital order not to resusci-
tate may at any time revoke his or her consent to the order by  any  act
evidencing  a  specific  intent  to revoke such consent. Any health care
professional, OTHER THAN THE  ATTENDING  PHYSICIAN  OR  ATTENDING  NURSE
PRACTITIONER, informed of a revocation of consent to a nonhospital order
not  to  resuscitate  shall  notify the attending physician OR ATTENDING
NURSE PRACTITIONER of the revocation. An attending physician OR  ATTEND-
ING  NURSE  PRACTITIONER who is informed that a nonhospital order not to
resuscitate  has  been  revoked  shall  record  the  revocation  in  the
patient's  medical record, cancel the order and make diligent efforts to
retrieve the form issuing the order, and the standard bracelet, if any.
  6. The commissioner may authorize the use of one or  more  alternative
forms  for  issuing  a nonhospital order not to resuscitate (in place of
the standard form prescribed by the commissioner under  subdivision  two
of  this  section).  Such  alternative form or forms may also be used to
issue a non-hospital do not intubate order. Any such  alternative  forms
intended  for use for persons with developmental disabilities or persons
with mental illness who are incapable of making their  own  health  care
decisions  or  who  have  a guardian of the person appointed pursuant to
article eighty-one of the mental hygiene law or article  seventeen-A  of
the surrogate's court procedure act must also be approved by the commis-
sioner  of  developmental  disabilities  or  the  commissioner of mental
health, as appropriate. An alternative form under this subdivision shall
otherwise conform with applicable federal and state law.  This  subdivi-
sion  does  not limit, restrict or impair the use of an alternative form
for issuing an order not to resuscitate in a general hospital  or  resi-
dential  health care facility under article twenty-eight of this chapter

A. 9859                            23

or a hospital under subdivision  ten  of  section  1.03  of  the  mental
hygiene law.
  S  32.  Subdivision  2 of section 2994-ee of the public health law, as
added by chapter 8 of the laws of 2010, is amended to read as follows:
  2. Hospital  emergency  services  physicians  AND  HOSPITAL  EMERGENCY
SERVICES NURSE PRACTITIONERS may direct that the order be disregarded if
other  significant  and exceptional medical circumstances warrant disre-
garding the order.
  S 33. This act shall take effect on  the  one  hundred  eightieth  day
after  it shall have become a law; provided that, effective immediately,
any rules and regulations necessary to implement the provisions of  this
act  on  its  effective  date are authorized and directed to be amended,
repealed and/or promulgated on or before such date.