[ ] is old law to be omitted.
LBD02551-03-7
S. 1869--A 2
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,
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.
§ 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.
§ 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:
§ 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.
S. 1869--A 3
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.
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.
§ 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.
S. 1869--A 4
(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
(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.
§ 6. Subdivision 5 of section 2964 of the public health law is renum-
bered subdivision 3.
§ 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
S. 1869--A 5
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
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.
§ 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:
§ 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.
§ 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:
§ 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.
S. 1869--A 6
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-
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.
§ 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:
§ 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.
S. 1869--A 7
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 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.
§ 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:
§ 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. 1869--A 8
§ 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
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, 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
S. 1869--A 9
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.
§ 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:
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.
§ 15. Section 2976 of the public health law, as added by chapter 818
of the laws of 1987, 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 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.
§ 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
S. 1869--A 10
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
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.
§ 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
S. 1869--A 11
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
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 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.
S. 1869--A 12
(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
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.
§ 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
S. 1869--A 13
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-
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
S. 1869--A 14
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,
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.
§ 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.
S. 1869--A 15
(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 added by chapter 8
of the laws of 2010, is amended to read as follows:
§ 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
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.
§ 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
S. 1869--A 16
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
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-
S. 1869--A 17
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
(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, 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 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-
S. 1869--A 18
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.
§ 23. Section 2994-j of the public health law, as added by chapter 8
of the laws of 2010, is amended 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 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.
§ 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:
§ 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:
§ 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. 1869--A 19
§ 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
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:
S. 1869--A 20
(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 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.
§ 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,
S. 1869--A 21
services or procedure. Nothing in this section shall determine or
affect how disputes among individuals on the surrogate list are
resolved.
§ 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
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 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 PHYSICIAN 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.
§ 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:
§ 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
S. 1869--A 22
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.
§ 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:
§ 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, 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
S. 1869--A 23
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
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.
§ 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.
