S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5973
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 22, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
   Committee on Health
 
 AN ACT to amend the public health law, in relation to making  technical,
   minor  and  coordinating  amendments  regarding health care agents and
   proxies, decisions under the family health  care  decisions  act,  and
   nonhospital orders not to resuscitate

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 4 and 10 of section 2980 of the public  health
 law, subdivision 4 as added by chapter 752 of the laws of 1990, subdivi-
 sion  10  as  amended  by chapter 23 of the laws of 1994, are amended to
 read as follows:
   4. "Health care" means any treatment, service or procedure to diagnose
 or treat an individual's physical or mental condition. PROVIDING  NUTRI-
 TION  OR HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS NOT
 HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE.
   10. "Mental hygiene facility" means a residential facility,  excluding
 family  care  homes, operated or licensed by the office of mental health
 or the office [of mental retardation and] FOR PEOPLE WITH  developmental
 disabilities.
   §  2.  Paragraph  (b)  of  subdivision 1 of section 2981 of the public
 health law, as added by chapter 752 of the laws of 1990, is  amended  to
 read as follows:
   (b)  For  the  purposes of this section, every adult shall be presumed
 competent to appoint a health care agent unless  such  person  has  been
 adjudged  incompetent  or  otherwise adjudged not competent to appoint a
 health care agent, or unless a [committee or] guardian of the person has
 been appointed for the adult pursuant to article [seventy-eight]  EIGHT-
 Y-ONE  of  the  mental  hygiene law or article seventeen-A of the surro-
 gate's court procedure act.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09564-01-9
              

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   § 3. Subdivision 2 of section  2982  of  the  public  health  law,  as
 amended  by  chapter  230  of  the  laws  of 2004, is amended to read as
 follows:
   2. Decision-making standard. After consultation with a licensed physi-
 cian,   registered   nurse,  PHYSICIAN  ASSISTANT,  NURSE  PRACTITIONER,
 licensed psychologist, licensed master  social  worker,  or  a  licensed
 clinical  social worker, the agent shall make health care decisions: (a)
 in accordance with the principal's  wishes,  including  the  principal's
 religious  and  moral  beliefs; or (b) if the principal's wishes are not
 reasonably known and cannot with reasonable diligence be ascertained, in
 accordance with the principal's best interests; provided, however,  that
 if  the  principal's  wishes  regarding the administration of artificial
 nutrition and hydration are not reasonably known and cannot with reason-
 able diligence be ascertained, the agent shall not have the authority to
 make decisions regarding these measures.
   § 4. Subdivision 3 of section  2983  of  the  public  health  law,  as
 amended  by  chapter  342  of  the  laws  of 2018, is amended to read as
 follows:
   3. Notice of determination. Notice of a determination that a principal
 lacks capacity to make health care decisions shall  promptly  be  given:
 (a)  to  the  principal, orally and in writing, where there is any indi-
 cation of the principal's ability to comprehend such notice; (b) to  the
 agent;  (c)  if  the  principal  is  in  or is transferred from a mental
 hygiene facility, to the facility director; and (d) to the  [conservator
 for, or committee of, the principal] GUARDIAN, IF ANY.
   §  5. Subdivision 2 of section 2991 of the public health law, as added
 by chapter 752 of the laws of 1990, is amended to read as follows:
   2. Such procedures shall be established in accordance with regulations
 issued by the commissioners of health, mental health, and [mental retar-
 dation and] developmental disabilities for facilities subject  to  their
 respective regulatory authorities.
   §  6.  The opening paragraph of section 2992 of the public health law,
 as amended by chapter 93 of the laws of 2014,  is  amended  to  read  as
 follows:
   The  health  care provider[, the conservator for, or committee] of the
 principal UNDER ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR  ARTICLE
 SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT, members of the prin-
 cipal's  family,  a close friend of the principal as defined in subdivi-
 sion [five] FOUR of section  [two  thousand  nine]  TWENTY-NINE  hundred
 [sixty-one]  NINETY-FOUR-A  of  this  chapter,  or  the commissioner [of
 health], THE COMMISSIONER OF  mental  health,  or  THE  COMMISSIONER  OF
 developmental disabilities may commence a special proceeding pursuant to
 article  four  of the civil practice law and rules, in a court of compe-
 tent jurisdiction, with respect to any dispute arising under this  arti-
 cle, including, but not limited to, a proceeding to:
   § 7. Section 2993 of the public health law, as added by chapter 752 of
 the laws of 1990, is amended to read as follows:
   §  2993.  Regulations.  The  commissioner [of health], in consultation
 with the commissioners of [the office of] mental health and [the  office
 of  mental  retardation and] developmental disabilities, shall establish
 such regulations as may be necessary  for  the  implementation  of  this
 article,  subject  to  the provisions of subdivision two of section [two
 thousand nine] TWENTY-NINE hundred ninety-one of this article.
   § 8. Subdivisions 17, 20 and 26 of section 2994-a of the public health
 law, as added by chapter 8 of the laws of 2010, are amended to  read  as
 follows:

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   17.  "Health or social [service] SERVICES practitioner" means a regis-
 tered  professional  nurse,  nurse  practitioner,  physician,  physician
 assistant, psychologist, LICENSED MASTER SOCIAL WORKER or licensed clin-
 ical  social worker, licensed or certified pursuant to the education law
 acting within his or her scope of practice.
   20. "Mental hygiene facility" means a facility operated or licensed by
 the  office  of  mental health or the office [of mental retardation and]
 FOR PEOPLE WITH developmental disabilities as defined in subdivision six
 of section 1.03 of the mental hygiene law.
   26. "Person connected with the case" means the patient, any person  on
 the  surrogate  list,  a  parent or guardian of a minor patient, [the] A
 hospital administrator, an attending  physician,  any  other  health  or
 social services practitioner who is or has been directly involved in the
 patient's  care,  and  any  duly  authorized state agency, including the
 facility director or regional director for a patient transferred from  a
 mental  hygiene  facility and the facility director for a patient trans-
 ferred from a correctional facility.
   § 9. The opening paragraph of subdivision 3 of section 2994-b  of  the
 public  health  law,  as  amended by chapter 430 of the laws of 2017, is
 amended to read as follows:
   Prior to seeking or relying upon a health care decision by a surrogate
 for a patient under this article, if the attending physician or  attend-
 ing  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:
   §  10.  Subdivision  3  of section 2994-e of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
 follows:
   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 AND DOCUMENTS THE BASIS FOR SUCH  DETERMINATION  IN
 THE  PATIENT'S  MEDICAL  RECORD, 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 attend-
 ing  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  MAKE  DILIGENT  EFFORTS TO notify such persons, AND DOCUMENT SUCH
 DILIGENT EFFORTS IN THE PATIENT'S MEDICAL RECORD, prior  to  withholding
 or withdrawing life-sustaining treatment pursuant to this subdivision.
   §  11.  Subparagraph (iv) of paragraph (b) of subdivision 4 of section
 2994-m of the public health law, as amended by chapter 430 of  the  laws
 of 2017, is amended to read as follows:
   (iv)  Following  ethics  review  committee  consideration  of  a  case
 concerning the withdrawal or withholding of  life-sustaining  treatment,

 A. 5973                             4
 
 treatment  shall  not  be withdrawn or withheld until THE HOSPITAL MAKES
 DILIGENT EFFORTS TO INFORM the persons identified in subparagraph  (iii)
 of  this  paragraph  [have been informed] of the committee's response to
 the  case  AND  DOCUMENTS SUCH DILIGENT EFFORTS IN THE PATIENT'S MEDICAL
 RECORD.
   § 12. Subdivision 2 of section 2994-t of the  public  health  law,  as
 added by chapter 8 of the laws of 2010, is amended to read as follows:
   2.  The  commissioner,  in consultation with the commissioners of [the
 office of] mental health and [the  office  of  mental  retardation  and]
 developmental disabilities, shall promulgate regulations identifying the
 credentials  of  health care professionals qualified to provide an inde-
 pendent determination, pursuant to subdivision three of section  twenty-
 nine  hundred  ninety-four-c of this article, that a patient lacks deci-
 sion-making  capacity  because  of  mental  illness   or   developmental
 disability.
   §  13.  Section 2994-u of the public health law, as added by chapter 8
 of the laws of 2010, is amended to read as follows:
   § 2994-u. Rights to be publicized. The commissioner  shall  prepare  a
 statement summarizing the rights, duties, and requirements of this arti-
 cle  and  shall  require  that  a copy of such statement be furnished to
 [patients] A PATIENT or to [persons on] the surrogate [list known to the
 hospital], or to the [parents or guardians]  PARENT  OR  GUARDIAN  of  A
 minor  [patients]  PATIENT, at or prior to admission to the hospital, or
 within a reasonable time thereafter, and to [each member of  the  hospi-
 tal's  staff  directly  involved  with  patient  care] ANY PERSON ON THE
 SURROGATE LIST WHO REQUESTS A COPY OF SUCH STATEMENT FROM THE  HOSPITAL.
 THE  STATEMENT  SHALL  ALSO  BE  MADE AVAILABLE TO THE HOSPITAL CLINICAL
 STAFF.
   § 14. The commissioner of health shall revise the statement of  rights
 that  hospitals  are  required  to  post (known as the Patient's Bill of
 Rights) pursuant to paragraph (g) of subdivision 1 of  section  2803  of
 the  public  health law, by replacing the clause regarding orders not to
 resuscitate with a statement that more  generally  informs  patients  of
 their  right  to  receive  from  the  hospital  upon admission, and upon
 request, a more complete statement  of  their  rights  with  respect  to
 deciding  about  health  care, including appointing a health care agent,
 consenting to do-not-resuscitate orders and making other life-sustaining
 treatment decisions. The clause should also state in substance that  the
 hospital  will  also  provide  such statement upon request to any family
 member or friend of a patient who lacks decision-making capacity.
   § 15. Subdivisions 12 and 13 of section 2994-aa of the  public  health
 law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
 vision 13 as amended  by chapter 167 of the laws of 2011, are amended to
 read as follows:
   12. "Mental hygiene facility" means a residential facility operated or
 licensed  by the office of mental health [or the office of mental retar-
 dation and developmental disabilities].
   13. "Nonhospital order not to resuscitate" means an order that directs
 emergency medical  services  personnel,  hospice  personnel,  HOME  CARE
 SERVICES  AGENCY PERSONNEL and hospital emergency services personnel not
 to attempt cardiopulmonary resuscitation in the event a patient  suffers
 cardiac or respiratory arrest.
   §  16.  Subdivisions  2  and 6 of section 2994-dd of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:

 A. 5973                             5
 
   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] A standard bracelet [that] OR OTHER ARTICLE may be worn by  a
 patient  with  a  nonhospital  order not to resuscitate to identify that
 status;  provided, however, that no person may require a patient to wear
 such a bracelet OR OTHER ARTICLE  and  that  no  person  may  require  a
 patient  to wear such a bracelet as a condition for honoring a nonhospi-
 tal order not to resuscitate or for providing health care services.
   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  OR  A  DEVELOPMENTAL  DISABILITIES  SERVICES  OFFICE UNDER
 SECTION 13.17 OF THE MENTAL HYGIENE LAW.
   § 17. Section 2994-gg of the public health law, as added by chapter  8
 of the laws of 2010, is amended to read as follows:
   §  2994-gg.  Immunity. No person shall be subjected to criminal prose-
 cution or civil liability, or be deemed to  have  engaged  in  unprofes-
 sional  conduct,  for  honoring reasonably and in good faith pursuant to
 this [section] ARTICLE a  nonhospital  order  not  to  resuscitate,  for
 disregarding a nonhospital order pursuant to section twenty-nine hundred
 ninety-four-ee  of  this  article, or for other actions taken reasonably
 and in good faith pursuant to this [section] ARTICLE.
   § 18. This act shall take effect on the ninetieth day after  it  shall
 have  become  a law, provided that the amendments to article 29-C of the
 public health law shall apply to decisions made pursuant to health  care
 proxies created prior to the effective date of this act as well as those
 created thereafter.