S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                 10476--A
 
                           I N  A S S E M B L Y
 
                              April 27, 2018
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
   Committee on Health -- committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN  ACT  to  amend  the  public  health law, in relation to execution of
   orders not to resuscitate and orders  pertaining  to  life  sustaining
   treatments;  and  to  repeal  certain  provisions of such law relating
   thereto
 
   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 amended by chap-
 ter 430 of the laws of 2017, is amended to read as follows:
   § 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  circum-
 stances,  to issue an order not to attempt cardiopulmonary resuscitation
 of a patient where appropriate consent has been obtained.  The  legisla-
 ture  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.
   § 2. Subdivisions 2, 5 and 20 of section 2961  of  the  public  health
 law,  as amended by chapter 430 of the laws of 2017, are amended to read
 as follows:
   2. "Attending [physician] PRACTITIONER"  means  the  physician,  NURSE
 PRACTITIONER,  OR PHYSICIAN ASSISTANT, LICENSED OR CERTIFIED PURSUANT TO
 TITLE EIGHT OF THE EDUCATION LAW, 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  practi-
 tioner,  OR  PHYSICIAN  ASSISTANT  shares  such responsibility, any such
 physician [or], nurse practitioner, OR PHYSICIAN ASSISTANT  may  act  as
 the  attending  [physician  or attending nurse] practitioner pursuant to
 this article.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15341-03-8

 A. 10476--A                         2
 
   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.
   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.
   § 3. Subdivision 2-a of section 2961  of  the  public  health  law  is
 REPEALED.
   § 4. Subdivisions 2 and 3 of section 2962 of the public health law, as
 amended  by  chapter  430  of  the  laws of 2017, 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.
   § 5. Section 2963 of the public health law, as amended by chapter  430
 of the laws of 2017, is amended to read as follows:
   §  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
 reasonable 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
 determination shall be included in the patient's medical chart.
   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.

 A. 10476--A                         3
 
   (b) If the  attending  [physician  or  attending  nurse]  practitioner
 determines  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
 determines that a patient lacks  capacity  because  of  a  developmental
 disability,  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
 disabilities.
   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.
   §  6.  Subdivision  2  of  section  2964  of the public health law, as
 amended by chapter 430 of the laws  of  2017,  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,  OR  PHYSICIAN  ASSISTANT
 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
 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

 A. 10476--A                         4
 
   (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 OR PHYSICIAN ASSISTANT, 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.
   § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
 amended  by  chapter  430  of  the  laws of 2017, 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  OR  PHYSICIAN  ASSISTANT
 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 OR PHYSICIAN ASSISTANT
 affiliated 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 surrogate shall include the decision  in
 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]
 practitioner'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 OR
 PHYSICIAN ASSISTANT, if necessary, or promptly refer the matter  to  the
 dispute mediation system.

 A. 10476--A                         5

   (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 OR PHYSICIAN ASSISTANT 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.
   §  8. Section 2966 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   § 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 certainty, resuscitation would be medically futile, and  another
 physician  [or], nurse practitioner OR PHYSICIAN ASSISTANT 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 subdivision one of  section  twenty-
 nine hundred seventy-six of this article, a court has granted a judgment
 directing the issuance of such an order.
   2.  Notwithstanding any other provision of this section, where a deci-
 sion 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 indication
 of  the  patient's  ability  to  comprehend  such notice. If the patient
 objects, an order not to resuscitate shall not be issued.
   § 9. Section 2967 of the public health law, as amended by chapter  430
 of the laws of 2017, is amended to read as follows:
   §  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
 resuscitate  the  minor,  the  attending  [physician or attending nurse]
 practitioner, or someone acting on behalf of the [attending physician or
 attending nurse] practitioner, shall make reasonable efforts  to  deter-
 mine  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 OR
 PHYSICIAN ASSISTANT selected by a person authorized by the  hospital  to

 A. 10476--A                         6

 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 conditions set forth in paragraph (c) of subdi-
 vision  three of section twenty-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  OR
 PHYSICIAN ASSISTANT affiliated 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 OR PHYSICIAN ASSISTANT  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 subdivi-
 sion three of section twenty-nine hundred seventy-two of this article.
   § 10. Section 2969 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   § 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.
   3.  Any  physician [or], nurse practitioner OR PHYSICIAN ASSISTANT 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 OR  PHYSICIAN  ASSISTANT,
 who  is informed of or provided with a revocation of consent pursuant to
 this section shall immediately notify a physician  [or],  nurse  practi-
 tioner OR PHYSICIAN ASSISTANT of such revocation.
   § 11. Section 2970 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:

 A. 10476--A                         7
 
   §  2970.  Physician  [and], nurse practitioner AND PHYSICIAN ASSISTANT
 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 deter-
 mine  if the order is still appropriate in light of the patient's condi-
 tion 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 OR PHYSICIAN ASSISTANT shall imme-
 diately 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 OR PHYSI-
 CIAN ASSISTANT 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.
   § 12. The opening paragraph and subdivision 2 of section 2971  of  the
 public  health  law,  as amended by chapter 430 of the laws of 2017, 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
 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.
   §  13.  Subdivisions  1,  2 and 4 of section 2972 of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:

 A. 10476--A                         8
 
   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 OR PHYSICIAN ASSISTANT
 eligible to provide a concurring determination pursuant to such subdivi-
 sion, 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 OR
 PHYSICIAN  ASSISTANT  eligible  to  provide  a  concurring determination
 pursuant to such subdivision, or a family  member  or  guardian  of  the
 person  of a person with a developmental disability of the same or simi-
 lar 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]  practi-
 tioner,  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, PHYSICIAN ASSISTANT or hospital.
   § 14. Subdivision 1 of section 2973  of  the  public  health  law,  as
 amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
 follows:
   1. The patient, an attending [physician, attending nurse]  practition-
 er,  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  aris-
 ing  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 subdivi-
 sion challenging a decision regarding issuance of an order not to resus-

 A. 10476--A                         9
 
 citate 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 subdi-
 vision, the court shall make its determination based upon the applicable
 substantive standards and procedures set forth in this article.
   § 15. Section 2976 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   § 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 OR PHYSICIAN
 ASSISTANT to issue an order not to resuscitate where the patient  has  a
 terminal  condition,  is permanently 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 reli-
 gious 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.
   § 16. Subdivisions 2 and 4 of section 2994-a of the public health law,
 as amended by chapter 430 of the laws of 2017, are amended  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 OR PHYSICIAN ASSISTANT shares such  respon-
 sibility,  or  where  a  physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT is acting on the attending [physician's  or  attending  nurse]
 practitioner's  behalf,  any  such physician [or], nurse practitioner OR
 PHYSICIAN ASSISTANT 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.
   § 17. Subdivisions 2 and 3 of section 2994-b of the public health law,
 as  amended  by  chapter 430 of the laws of 2017, are amended to read as
 follows:

 A. 10476--A                        10
 
   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 OR
 PHYSICIAN ASSISTANT 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 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  for  people  with  developmental
 disabilities,  then  the  decision  shall be governed by such statute or
 regulations and not by this article.
   § 18. Subdivisions 2, 3 and 7 of section 2994-c of the  public  health
 law,  as amended by chapter 430 of the laws of 2017, 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.

 A. 10476--A                        11
 
   (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 OR PHYSICIAN ASSISTANT must have the  following
 qualifications,  or  another  professional with the following qualifica-
 tions must independently determine whether the patient  lacks  decision-
 making  capacity:  a  physician  or  clinical psychologist who either is
 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
 has  been  approved by the commissioner of developmental disabilities in
 accordance with regulations promulgated by such commissioner. Such regu-
 lations shall require that a physician or clinical psychologist  possess
 specialized training or three years experience in treating developmental
 disabilities.  A  record  of  such consultation 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-

 A. 10476--A                        12
 
 taining treatment. Health care providers shall not be required to inform
 the patient or surrogate of the confirmation.
   §  19.  Subdivisions 2, 3 and 5 of section 2994-d of the public health
 law, as amended by chapter 430 of the laws of 2017, 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  OR
 PHYSICIAN  ASSISTANT 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 practitioner OR PHYSICIAN ASSISTANT serves as surrogate, the
 physician  [or], nurse practitioner OR PHYSICIAN ASSISTANT shall not act
 as the patient's attending [physician or attending  nurse]  practitioner
 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] practi-
 tioner relies on the patient's prior decision, the physician [or], nurse
 practitioner OR PHYSICIAN ASSISTANT shall record the prior  decision  in
 the patient's medical record. If a surrogate has already been designated
 for  the  patient,  the attending [physician or attending nurse] practi-
 tioner 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] practitioner 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] ALTERNATIVES to proposed health care.

 A. 10476--A                        13
 
   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  prac-
 titioner OR PHYSICIAN ASSISTANT, 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  [physi-
 cian  or  attending nurse] practitioner with the independent concurrence
 of another physician [or], nurse practitioner OR PHYSICIAN ASSISTANT  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  OR  PHYSICIAN
 ASSISTANT  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 subpara-
 graph (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,
 including at least one physician [or], nurse practitioner  OR  PHYSICIAN
 ASSISTANT  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 subdivi-
 sion 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.
   § 20. Subdivisions 2 and 3 of section 2994-e of the public health law,
 as  amended  by  chapter 430 of the laws of 2017, 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.

 A. 10476--A                        14
 
   (b) An attending  [physician  or  attending  nurse]  practitioner,  in
 consultation  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
 [physician 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 decision.
   (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.
   §  21.  Section 2994-f of the public health law, as amended by chapter
 430 of the laws of 2017, is amended to read as follows:
   § 2994-f. Obligations of  attending  [physician  or  attending  nurse]
 practitioner. 1. An attending [physician or attending nurse] practition-
 er informed of a decision to withdraw or withhold life-sustaining treat-
 ment  made  pursuant  to  the standards of this article shall record the
 decision in the patient's medical record, review the medical  basis  for
 the  decision,  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 reason-
 able efforts to arrange for the  transfer  of  the  patient  to  another
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT, if necessary,
 or promptly refer the matter to the ethics review committee.
   2.  If  an  attending  [physician or attending nurse] practitioner has
 actual 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]  practi-
 tioner'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

 A. 10476--A                        15
 
   (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.
   §  22. Subdivisions 3, 4, 5, 5-a and 6 of section 2994-g of the public
 health law, as amended by chapter 430 of the laws of 2017,  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
 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

 A. 10476--A                        16
 
 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
 responsible for the patient's care.
   (ii)  In  a general hospital, at least one other physician [or], nurse
 practitioner OR PHYSICIAN ASSISTANT  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 OR PHYSICIAN ASSISTANT
 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  OR
 PHYSICIAN  ASSISTANT  designated by the residential health care facility
 or hospice must make  this  independent  determination.  Any  health  or
 social  services  practitioner  employed by or otherwise formally affil-
 iated 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
 OR  PHYSICIAN  ASSISTANT  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
   (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
 responsible  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
 practitioner OR PHYSICIAN ASSISTANT  designated  by  the  hospital  must

 A. 10476--A                        17

 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  OR  PHYSICIAN
 ASSISTANT  designated by the medical director, must independently deter-
 mine 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] prac-
 titioner, a different physician [or], nurse  practitioner  OR  PHYSICIAN
 ASSISTANT  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, a different
 physician designated by the hospice must make this independent  determi-
 nation; 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 OR PHYSICIAN ASSISTANT 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 consistent with such standards for surrogate decisions.
   6.   Physician   [or],   nurse  practitioner  OR  PHYSICIAN  ASSISTANT
 objection. If a physician [or], nurse practitioner OR PHYSICIAN  ASSIST-
 ANT  consulted  for a concurring opinion objects to an attending [physi-
 cian'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  other-
 wise resolved.
   §  23.  Section 2994-j of the public health law, as amended by chapter
 430 of the laws of 2017, is amended to read as follows:
   § 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  imme-
 diately:
   (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 OR PHYSICIAN  ASSISTANT,  informed  of  a  revocation  made
 pursuant  to  this section shall immediately notify an attending [physi-
 cian or attending nurse] practitioner of the revocation.

 A. 10476--A                        18
 
   § 24. The opening paragraph of subdivision 2 of section 2994-k of  the
 public  health  law,  as  amended by chapter 430 of the laws of 2017, 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  OR  PHYSICIAN
 ASSISTANT shall immediately:
   §  25.  Section 2994-l of the public health law, as amended by chapter
 430 of the laws of 2017, is amended to read as follows:
   § 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
 transferred 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
 canceling the order or  plan,  the  attending  [physician  or  attending
 nurse] practitioner shall make such notice as soon as reasonably practi-
 cable after cancellation.
   § 26. Subdivisions 3 and 4 of section 2994-m of the public health law,
 as  amended  by  chapter 430 of the laws of 2017, 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
 services practitioners, at least one of whom must be a registered  nurse
 and  one  of whom must be a physician [or], nurse practitioner OR PHYSI-
 CIAN ASSISTANT. At least one member must be a person without any  gover-
 nance,  employment  or  contractual 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 demonstrated 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

 A. 10476--A                        19
 
 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.
   (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.
   § 27. Paragraph (b) of subdivision 4 of section 2994-r of  the  public
 health law, as amended by chapter 430 of the laws of 2017, is amended to
 read as follows:

 A. 10476--A                        20

   (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.
   § 28. Subdivision 1 of section 2994-s of the  public  health  law,  as
 amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
 follows:
   1. Any hospital, 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, physician [or], nurse practitioner  OR  PHYSICIAN
 ASSISTANT  exercises  the  rights granted by section twenty-nine hundred
 ninety-four-n of this article, provided that the physician, nurse  prac-
 titioner,  PHYSICIAN  ASSISTANT  or hospital promptly fulfills the obli-
 gations 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,  PHYSICIAN ASSISTANT 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  surro-
 gate list are resolved.
   §  29.  Subdivision  2 of section 2994-aa of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  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 OR PHYSICIAN  ASSISTANT  shares  such
 responsibility, any such physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT  may act as the attending [physician or attending nurse] prac-
 titioner pursuant to this article.
   § 30. Section 2994-cc of the public health law, as amended by  chapter
 430 of the laws of 2017, is amended to read as follows:
   §  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

 A. 10476--A                        21
 
 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 practi-
 tioner OR PHYSICIAN ASSISTANT is sought to fulfill the requirements  for
 the issuance of a nonhospital order not to resuscitate for patients in a
 correctional facility, such second physician [or], nurse practitioner OR
 PHYSICIAN  ASSISTANT  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 practition-
 er  OR PHYSICIAN ASSISTANT 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 OR PHYSI-
 CIAN  ASSISTANT  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 appro-
 priate 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.
   § 31. Section 2994-dd of the public health law, as amended by  chapter
 430 of the laws of 2017, is amended to read as follows:
   §  2994-dd.  Managing  a  nonhospital order not to resuscitate. 1. The
 attending [physician or attending nurse] practitioner shall  record  the
 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  OR  PHYSICIAN
 ASSISTANT, shall inform the physician [or], nurse practitioner OR PHYSI-
 CIAN ASSISTANT of the order.
   4.  For  each  patient for whom a nonhospital order not to resuscitate
 has been issued, the attending [physician or  attending  nurse]  practi-
 tioner  shall  review whether the order is still appropriate in light of
 the patient's condition each time he or she examines the patient, wheth-
 er 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

 A. 10476--A                        22
 
 PHYSICIAN  ASSISTANT  OR  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
 attending  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
 or a hospital under subdivision  ten  of  section  1.03  of  the  mental
 hygiene law.
   §  32.  Subdivision  2 of section 2994-ee of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
 follows:
   2.  Hospital  emergency  services  physicians  and  hospital emergency
 services nurse practitioners AND PHYSICIAN ASSISTANTS  may  direct  that
 the  order  be  disregarded if other significant and exceptional medical
 circumstances warrant disregarding the order.
   § 33. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall become a law. Effective immediately, any rules and regu-
 lations necessary to implement the provisions of this act on its  effec-
 tive  date  are  authorized  and directed to be amended, repealed and/or
 promulgated on or before such date.