S. 4841 2
the attending [physician 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.
20. "Reasonably available" means that a person to be contacted can be
contacted with diligent efforts by an attending [physician, attending
nurse] practitioner or another person acting on behalf of the attending
[physician, attending nurse] practitioner or the hospital.
§ 3. Subdivision 2-a of section 2961 of the public health law is
REPEALED.
§ 4. Subdivisions 2 and 3 of section 2962 of the public health law, as
amended by chapter 430 of the laws of 2017, are amended to read as
follows:
2. It shall be lawful for the attending [physician or attending nurse]
practitioner to issue an order not to resuscitate a patient, provided
that the order has been issued pursuant to the requirements of this
article. The order shall be included in writing in the patient's chart.
An order not to resuscitate shall be effective upon issuance.
3. Before obtaining, pursuant to this article, the consent of the
patient, or of the surrogate of the patient, or parent or legal guardian
of the minor patient, to an order not to resuscitate, the attending
[physician or attending nurse] practitioner shall provide to the person
giving consent information about the patient's diagnosis and prognosis,
the reasonably foreseeable risks and benefits of cardiopulmonary resus-
citation for the patient, and the consequences of an order not to resus-
citate.
§ 5. Section 2963 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2963. Determination of capacity to make a decision regarding
cardiopulmonary resuscitation. 1. Every adult shall be presumed to have
the capacity to make a decision regarding cardiopulmonary resuscitation
unless determined otherwise pursuant to this section or pursuant to a
court order or unless a guardian is authorized to decide about health
care for the adult pursuant to article eighty-one of the mental hygiene
law or article seventeen-A of the surrogate's court procedure act. The
attending [physician or attending nurse] practitioner shall not rely on
the presumption stated in this subdivision if clinical indicia of inca-
pacity are present.
2. A determination that an adult patient lacks capacity shall be made
by the attending [physician or attending nurse] practitioner to a
reasonable degree of medical certainty. The determination shall be made
in writing and shall contain such attending [physician's or attending
nurse] practitioner's opinion regarding the cause and nature of the
patient's incapacity as well as its extent and probable duration. The
determination shall be included in the patient's medical chart.
3. (a) At least one other physician, selected by a person authorized
by the hospital to make such selection, must concur in the determination
that an adult lacks capacity. The concurring determination shall be made
in writing after personal examination of the patient and shall contain
the physician's opinion regarding the cause and nature of the patient's
S. 4841 3
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
determines that a patient lacks capacity because of mental illness, the
concurring determination required by paragraph (a) of this subdivision
shall be provided by a physician licensed to practice medicine in New
York state, who is a diplomate or eligible to be certified by the Ameri-
can Board of Psychiatry and Neurology or who is certified by the Ameri-
can Osteopathic Board of Neurology and Psychiatry or is eligible to be
certified by that board.
(c) If the attending [physician or attending nurse] practitioner
determines that a patient lacks capacity because of a developmental
disability, the concurring determination required by paragraph (a) of
this subdivision shall be provided by a physician or psychologist
employed by a developmental disabilities services office named in
section 13.17 of the mental hygiene law, or who has been employed for a
minimum of two years to render care and service in a facility operated
or licensed by the office for people with developmental disabilities, or
who has been approved by the commissioner of developmental disabilities
in accordance with regulations promulgated by such commissioner. Such
regulations shall require that a physician or psychologist possess
specialized training or three years experience in treating developmental
disabilities.
4. Notice of a determination that the patient lacks capacity shall
promptly be given (a) to the patient, where there is any indication of
the patient's ability to comprehend such notice, together with a copy of
a statement prepared in accordance with section twenty-nine hundred
seventy-eight of this article, and (b) to the person on the surrogate
list highest in order of priority listed, when persons in prior subpara-
graphs are not reasonably available. Nothing in this subdivision shall
preclude or require notice to more than one person on the surrogate
list.
5. A determination that a patient lacks capacity to make a decision
regarding an order not to resuscitate pursuant to this section shall not
be construed as a finding that the patient lacks capacity for any other
purpose.
§ 6. Subdivision 2 of section 2964 of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
2. (a) During hospitalization, an adult with capacity may express a
decision consenting to an order not to resuscitate orally in the pres-
ence of at least two witnesses eighteen years of age or older, one of
whom is a physician [or], nurse practitioner, OR PHYSICIAN ASSISTANT
affiliated with the hospital in which the patient is being treated. Any
such decision shall be recorded in the patient's medical chart.
(b) Prior to or during hospitalization, an adult with capacity may
express a decision consenting to an order not to resuscitate in writing,
dated and signed in the presence of at least two witnesses eighteen
years of age or older who shall sign the decision.
(c) An attending [physician or attending nurse] practitioner who is
provided with or informed of a decision pursuant to this subdivision
shall record or include the decision in the patient's medical chart if
the decision has not been recorded or included, and either:
(i) promptly issue an order not to resuscitate the patient or issue an
order at such time as the conditions, if any, specified in the decision
S. 4841 4
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 OR PHYSICIAN ASSISTANT, if necessary,
or promptly submit the matter to the dispute mediation system.
(d) Prior to issuing an order not to resuscitate a patient who has
expressed a decision consenting to an order not to resuscitate under
specified medical conditions, the attending [physician or attending
nurse] practitioner must make a determination, to a reasonable degree of
medical certainty, that such conditions exist, and include the determi-
nation in the patient's medical chart.
§ 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
amended by chapter 430 of the laws of 2017, are amended to read as
follows:
3. (a) The surrogate shall make a decision regarding cardiopulmonary
resuscitation on the basis of the adult patient's wishes including a
consideration of the patient's religious and moral beliefs, or, if the
patient's wishes are unknown and cannot be ascertained, on the basis of
the patient's best interests.
(b) Notwithstanding any law to the contrary, the surrogate shall have
the same right as the patient to receive medical information and medical
records.
(c) A surrogate may consent to an order not to resuscitate on behalf
of an adult patient only if there has been a determination by an attend-
ing [physician or attending nurse] practitioner with the concurrence of
another physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
selected by a person authorized by the hospital to make such selection,
given after personal examination of the patient that, to a reasonable
degree of medical certainty:
(i) the patient has a terminal condition; or
(ii) the patient is permanently unconscious; or
(iii) resuscitation would be medically futile; or
(iv) resuscitation would impose an extraordinary burden on the patient
in light of the patient's medical condition and the expected outcome of
resuscitation for the patient.
Each determination shall be included in the patient's medical chart.
4. (a) A surrogate shall express a decision consenting to an order not
to resuscitate either (i) in writing, dated, and signed in the presence
of one witness eighteen years of age or older who shall sign the deci-
sion, or (ii) orally, to two persons eighteen years of age or older, one
of whom is a physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
affiliated with the hospital in which the patient is being treated. Any
such decision shall be recorded in the patient's medical chart.
(b) The attending [physician or attending nurse] practitioner who is
provided with the decision of a surrogate shall include the decision in
the patient's medical chart and, if the surrogate has consented to the
issuance of an order not to resuscitate, shall either:
(i) promptly issue an order not to resuscitate the patient and inform
the hospital staff responsible for the patient's care of the order; or
(ii) promptly make the attending [physician's or attending nurse]
practitioner's objection to the issuance of such an order known to the
surrogate and either make all reasonable efforts to arrange for the
transfer of the patient to another physician [or], nurse practitioner OR
S. 4841 5
PHYSICIAN ASSISTANT, 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 OR PHYSICIAN ASSISTANT shall submit the matter to the
dispute mediation system and such order shall not be issued or shall be
revoked in accordance with the provisions of subdivision three of
section twenty-nine hundred seventy-two of this article.
§ 8. Section 2966 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2966. Decision-making on behalf of an adult patient without capacity
for whom no surrogate is available. 1. If no surrogate is reasonably
available, willing to make a decision regarding issuance of an order not
to resuscitate, and competent to make a decision regarding issuance of
an order not to resuscitate on behalf of an adult patient who lacks
capacity and who had not previously expressed a decision regarding
cardiopulmonary resuscitation, an attending [physician or attending
nurse] practitioner (a) may issue an order not to resuscitate the
patient, provided that the attending [physician or attending nurse]
practitioner determines, in writing, that, to a reasonable degree of
medical certainty, resuscitation would be medically futile, and another
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT selected by a
person authorized by the hospital to make such selection, after personal
examination of the patient, reviews and concurs in writing with such
determination, or, (b) shall issue an order not to resuscitate the
patient, provided that, pursuant to subdivision one of section twenty-
nine hundred seventy-six of this article, a court has granted a judgment
directing the issuance of such an order.
2. Notwithstanding any other provision of this section, where a deci-
sion to consent to an order not to resuscitate has been made, notice of
the decision shall be given to the patient where there is any indication
of the patient's ability to comprehend such notice. If the patient
objects, an order not to resuscitate shall not be issued.
§ 9. Section 2967 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2967. Decision-making on behalf of a minor patient. 1. An attending
[physician or attending nurse] practitioner, in consultation with a
minor's parent or legal guardian, shall determine whether a minor has
the capacity to make a decision regarding resuscitation.
2. (a) The consent of a minor's parent or legal guardian and the
consent of the minor, if the minor has capacity, must be obtained prior
to issuing an order not to resuscitate the minor.
(b) Where the attending [physician or attending nurse] practitioner
has reason to believe that there is another parent or a non-custodial
parent who has not been informed of a decision to issue an order not to
resuscitate the minor, the attending [physician or attending nurse]
practitioner, or someone acting on behalf of the [attending physician or
attending nurse] practitioner, shall make reasonable efforts to deter-
mine if the uninformed parent or non-custodial parent has maintained
substantial and continuous contact with the minor and, if so, shall make
diligent efforts to notify that parent or non-custodial parent of the
decision prior to issuing the order.
3. A parent or legal guardian may consent to an order not to resusci-
tate on behalf of a minor only if there has been a written determination
by the attending [physician or attending nurse] practitioner, with the
S. 4841 6
written concurrence of another physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT 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 conditions set forth in paragraph (c) of subdi-
vision three of section twenty-nine hundred sixty-five of this article.
Each determination shall be included in the patient's medical chart.
4. (a) A parent or legal guardian of a minor, in making a decision
regarding cardiopulmonary resuscitation, shall consider the minor
patient's wishes, including a consideration of the minor patient's reli-
gious and moral beliefs, and shall express a decision consenting to
issuance of an order not to resuscitate either (i) in writing, dated and
signed in the presence of one witness eighteen years of age or older who
shall sign the decision, or (ii) orally, to two persons eighteen years
of age or older, one of whom is a physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT affiliated with the hospital in which the patient is
being treated. Any such decision shall be recorded in the patient's
medical chart.
(b) The attending [physician or attending nurse] practitioner who is
provided with the decision of a minor's parent or legal guardian,
expressed pursuant to this subdivision, and of the minor if the minor
has capacity, shall include such decision or decisions in the minor's
medical chart and shall comply with the provisions of paragraph (b) of
subdivision four of section twenty-nine hundred sixty-five of this arti-
cle.
(c) If the attending [physician or attending nurse] practitioner has
actual notice of the opposition of a parent or non-custodial parent to
consent by another parent to an order not to resuscitate a minor, the
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT shall submit
the matter to the dispute mediation system and such order shall not be
issued or shall be revoked in accordance with the provisions of subdivi-
sion three of section twenty-nine hundred seventy-two of this article.
§ 10. Section 2969 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2969. Revocation of consent to order not to resuscitate. 1. A person
may, at any time, revoke his or her consent to an order not to resusci-
tate himself or herself by making either a written or an oral declara-
tion to a physician or member of the nursing staff at the hospital where
he or she is being treated, or by any other act evidencing a specific
intent to revoke such consent.
2. Any surrogate, parent, or legal guardian may at any time revoke his
or her consent to an order not to resuscitate a patient by (a) notifying
a physician or member of the nursing staff of the revocation of consent
in writing, dated and signed, or (b) orally notifying the attending
[physician or attending nurse] practitioner in the presence of a witness
eighteen years of age or older.
3. Any physician [or], nurse practitioner OR PHYSICIAN ASSISTANT who
is informed of or provided with a revocation of consent pursuant to this
section shall immediately include the revocation in the patient's chart,
cancel the order, and notify the hospital staff responsible for the
patient's care of the revocation and cancellation. Any member of the
nursing staff, other than a nurse practitioner OR PHYSICIAN ASSISTANT,
who is informed of or provided with a revocation of consent pursuant to
this section shall immediately notify a physician [or], nurse practi-
tioner OR PHYSICIAN ASSISTANT of such revocation.
S. 4841 7
§ 11. Section 2970 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2970. Physician [and], nurse practitioner AND PHYSICIAN ASSISTANT
review of the order not to resuscitate. 1. For each patient for whom an
order not to resuscitate has been issued, the attending [physician or
attending nurse] practitioner shall review the patient's chart to deter-
mine if the order is still appropriate in light of the patient's condi-
tion and shall indicate on the patient's chart that the order has been
reviewed each time the patient is required to be seen by a physician but
at least every sixty days.
Failure to comply with this subdivision shall not render an order not
to resuscitate ineffective.
2. (a) If the attending [physician or attending nurse] practitioner
determines at any time that an order not to resuscitate is no longer
appropriate because the patient's medical condition has improved, the
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT shall imme-
diately notify the person who consented to the order. Except as provided
in paragraph (b) of this subdivision, if such person declines to revoke
consent to the order, the physician [or], nurse practitioner OR PHYSI-
CIAN ASSISTANT shall promptly (i) make reasonable efforts to arrange for
the transfer of the patient to another physician or (ii) submit the
matter to the dispute mediation system.
(b) If the order not to resuscitate was entered upon the consent of a
surrogate, parent, or legal guardian and the attending [physician or
attending nurse] practitioner who issued the order, or, if unavailable,
another attending [physician or attending nurse] practitioner at any
time determines that the patient does not suffer from one of the medical
conditions set forth in paragraph (c) of subdivision three of section
twenty-nine hundred sixty-five of this article, the attending [physician
or attending nurse] practitioner shall immediately include such determi-
nation in the patient's chart, cancel the order, and notify the person
who consented to the order and all hospital staff responsible for the
patient's care of the cancellation.
(c) If an order not to resuscitate was entered upon the consent of a
surrogate and the patient at any time gains or regains capacity, the
attending [physician or attending nurse] practitioner who issued the
order, or, if unavailable, another attending [physician or attending
nurse] practitioner shall immediately cancel the order and notify the
person who consented to the order and all hospital staff directly
responsible for the patient's care of the cancellation.
§ 12. The opening paragraph and subdivision 2 of section 2971 of the
public health law, as amended by chapter 430 of the laws of 2017, are
amended to read as follows:
If a patient for whom an order not to resuscitate has been issued is
transferred from a hospital to a different hospital the order shall
remain effective, unless revoked pursuant to this article, until the
attending [physician or attending nurse] practitioner first examines the
transferred patient, whereupon the attending [physician or attending
nurse] practitioner must either:
2. Cancel the order not to resuscitate, provided the attending [physi-
cian or attending nurse] practitioner immediately notifies the person
who consented to the order and the hospital staff directly responsible
for the patient's care of the cancellation. Such cancellation does not
preclude the entry of a new order pursuant to this article.
S. 4841 8
§ 13. Subdivisions 1, 2 and 4 of section 2972 of the public health
law, as amended by chapter 430 of the laws of 2017, are amended to read
as follows:
1. (a) Each hospital shall establish a mediation system for the
purpose of mediating disputes regarding the issuance of orders not to
resuscitate.
(b) The dispute mediation system shall be described in writing and
adopted by the hospital's governing authority. It may utilize existing
hospital resources, such as a patient advocate's office or hospital
chaplain's office, or it may utilize a body created specifically for
this purpose, but, in the event a dispute involves a patient deemed to
lack capacity pursuant to (i) paragraph (b) of subdivision three of
section twenty-nine hundred sixty-three of this article, the system must
include a physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
eligible to provide a concurring determination pursuant to such subdivi-
sion, or a family member or guardian of the person of a person with a
mental illness of the same or similar nature, or (ii) paragraph (c) of
subdivision three of section twenty-nine hundred sixty-three of this
article, the system must include a physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT eligible to provide a concurring determination
pursuant to such subdivision, or a family member or guardian of the
person of a person with a developmental disability of the same or simi-
lar nature.
2. The dispute mediation system shall be authorized to mediate any
dispute, including disputes regarding the determination of the patient's
capacity, arising under this article between the patient and an attend-
ing [physician, attending nurse] practitioner or the hospital that is
caring for the patient and, if the patient is a minor, the patient's
parent, or among an attending [physician, an attending nurse] practi-
tioner, a parent, non-custodial parent, or legal guardian of a minor
patient, any person on the surrogate list, and the hospital that is
caring for the patient.
4. If a dispute between a patient who expressed a decision rejecting
cardiopulmonary resuscitation and an attending [physician, attending
nurse] practitioner or the hospital that is caring for the patient is
submitted to the dispute mediation system, and either:
(a) the dispute mediation system has concluded its efforts to resolve
the dispute, or
(b) seventy-two hours have elapsed from the time of submission without
resolution of the dispute, whichever shall occur first, the attending
[physician or attending nurse] practitioner shall either: (i) promptly
issue an order not to resuscitate the patient or issue the order at such
time as the conditions, if any, specified in the decision are met, and
inform the hospital staff responsible for the patient's care of the
order; or (ii) promptly arrange for the transfer of the patient to
another physician, nurse practitioner, PHYSICIAN ASSISTANT or hospital.
§ 14. Subdivision 1 of section 2973 of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
1. The patient, an attending [physician, attending nurse] practition-
er, a parent, non-custodial parent, or legal guardian of a minor
patient, any person on the surrogate list, the hospital that is caring
for the patient and the facility director, may commence a special
proceeding pursuant to article four of the civil practice law and rules,
in a court of competent jurisdiction, with respect to any dispute aris-
ing under this article, except that the decision of a patient not to
S. 4841 9
consent to issuance of an order not to resuscitate may not be subjected
to judicial review. In any proceeding brought pursuant to this subdivi-
sion challenging a decision regarding issuance of an order not to resus-
citate on the ground that the decision is contrary to the patient's
wishes or best interests, the person or entity challenging the decision
must show, by clear and convincing evidence, that the decision is
contrary to the patient's wishes including consideration of the
patient's religious and moral beliefs, or, in the absence of evidence of
the patient's wishes, that the decision is contrary to the patient's
best interests. In any other proceeding brought pursuant to this subdi-
vision, the court shall make its determination based upon the applicable
substantive standards and procedures set forth in this article.
§ 15. Section 2976 of the public health law, as amended by chapter 430
of the laws of 2017, is amended to read as follows:
§ 2976. Judicially approved order not to resuscitate. 1. If no surro-
gate is reasonably available, willing to make a decision regarding issu-
ance of an order not to resuscitate, and competent to make a decision
regarding issuance of an order not to resuscitate on behalf of an adult
patient who lacks capacity and who had not previously expressed a deci-
sion regarding cardiopulmonary resuscitation pursuant to this article,
an attending [physician or attending nurse] practitioner or hospital may
commence a special proceeding pursuant to article four of the civil
practice law and rules, in a court of competent jurisdiction, for a
judgment directing the physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT to issue an order not to resuscitate where the patient has a
terminal condition, is permanently unconscious, or resuscitation would
impose an extraordinary burden on the patient in light of the patient's
medical condition and the expected outcome of resuscitation for the
patient, and issuance of an order not to resuscitate is consistent with
the patient's wishes including a consideration of the patient's reli-
gious and moral beliefs or, in the absence of evidence of the patient's
wishes, the patient's best interests.
2. Nothing in this article shall be construed to preclude a court of
competent jurisdiction from approving the issuance of an order not to
resuscitate under circumstances other than those under which such an
order may be issued pursuant to this article.
§ 16. Subdivisions 2, 9-a and 13 of section 2980 of the public health
law, subdivisions 2 and 13 as added by chapter 752 of the laws of 1990,
subdivision 9-a as added by chapter 8 of the laws of 2010, are amended
to read as follows:
2. "Attending [physician] PRACTITIONER" means the physician, PHYSICIAN
ASSISTANT, OR NURSE PRACTITIONER, LICENSED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW, selected by or assigned to a patient,
who has primary responsibility for the treatment and care of the
patient. Where more than one physician, PHYSICIAN ASSISTANT, OR NURSE
PRACTITIONER shares such responsibility, or where a physician, PHYSICIAN
ASSISTANT, OR NURSE PRACTITIONER is acting on the attending [physi-
cian's] PRACTITIONER'S behalf, any such physician, NURSE PRACTITIONER,
OR PHYSICIAN ASSISTANT may act as the attending [physician] PRACTITIONER
pursuant to this article.
9-a. "Life-sustaining treatment" means any medical treatment or proce-
dure without which the patient will die within a relatively short time,
as determined by an attending [physician] PRACTITIONER to a reasonable
degree of medical certainty. For purposes of this article, cardiopulmo-
nary resuscitation is presumed to be a life sustaining treatment without
S. 4841 10
the necessity of a determination by an attending [physician] PRACTITION-
ER.
13. "Reasonably available" means that a person to be contacted can be
contacted with diligent efforts by an attending [physician] PRACTITIONER
or another person acting on behalf of the attending [physician] PRACTI-
TIONER or the hospital.
§ 17. Subdivision 2-c of section 2980 of the public health law is
REPEALED.
§ 18. Subdivisions 2, 3 and 6 of section 2981 of the public health
law, as amended by chapter 342 of the laws of 2018, are amended to read
as follows:
2. Health care proxy; execution; witnesses. (a) A competent adult may
appoint a health care agent by a health care proxy, signed and dated by
the adult in the presence of two adult witnesses who shall also sign the
proxy. Another person may sign and date the health care proxy for the
adult if the adult is unable to do so, at the adult's direction and in
the adult's presence, and in the presence of two adult witnesses who
shall sign the proxy. The witnesses shall state that the principal
appeared to execute the proxy willingly and free from duress. The person
appointed as agent shall not act as witness to execution of the health
care proxy.
(b) For persons who reside in a mental hygiene facility operated or
licensed by the office of mental health, at least one witness shall be
an individual who is not affiliated with the facility and, if the mental
hygiene facility is also a hospital as defined in subdivision ten of
section 1.03 of the mental hygiene law, at least one witness shall be a
qualified psychiatrist or psychiatric nurse practitioner.
(c) For persons who reside in a mental hygiene facility operated or
licensed by the office for people with developmental disabilities, at
least one witness shall be an individual who is not affiliated with the
facility and at least one witness shall be a physician, nurse practi-
tioner, PHYSICIAN ASSISTANT or clinical psychologist who either is
employed by a developmental disabilities services office named in
section 13.17 of the mental hygiene law or who has been employed for a
minimum of two years to render care and service in a facility operated
or licensed by the office for people with developmental disabilities, or
has been approved by the commissioner of developmental disabilities in
accordance with regulations approved by the commissioner. Such regu-
lations shall require that a physician, nurse practitioner, PHYSICIAN
ASSISTANT, or clinical psychologist possess specialized training or
three years experience in treating developmental disabilities.
3. Restrictions on who may be and limitations on a health care agent.
(a) An operator, administrator or employee of a hospital may not be
appointed as a health care agent by any person who, at the time of the
appointment, is a patient or resident of, or has applied for admission
to, such hospital.
(b) The restriction in paragraph (a) of this subdivision shall not
apply to:
(i) an operator, administrator or employee of a hospital who is
related to the principal by blood, marriage or adoption; or
(ii) a physician, PHYSICIAN ASSISTANT, or nurse practitioner, subject
to the limitation set forth in paragraph (c) of this subdivision, except
that no physician or nurse practitioner affiliated with a mental hygiene
facility or a psychiatric unit of a general hospital may serve as agent
for a principal residing in or being treated by such facility or unit
S. 4841 11
unless the physician is related to the principal by blood, marriage or
adoption.
(c) If a physician, PHYSICIAN ASSISTANT, or nurse practitioner is
appointed agent, the physician, PHYSICIAN ASSISTANT, or nurse practi-
tioner shall not act as the patient's attending [physician or attending
nurse] practitioner after the authority under the health care proxy
commences, unless the physician, PHYSICIAN ASSISTANT, or nurse practi-
tioner declines the appointment as agent at or before such time.
(d) No person who is not the spouse, child, parent, brother, sister or
grandparent of the principal, or is the issue of, or married to, such
person, shall be appointed as a health care agent if, at the time of
appointment, he or she is presently appointed health care agent for ten
principals.
6. Alternate agent. (a) A competent adult may designate an alternate
agent in the health care proxy to serve in place of the agent when:
(i) the attending [physician or attending nurse] practitioner has
determined in a writing signed by the physician, PHYSICIAN ASSISTANT, or
nurse practitioner (A) that the person appointed as agent is not reason-
ably available, willing and competent to serve as agent, and (B) that
such person is not expected to become reasonably available, willing and
competent to make a timely decision given the patient's medical circum-
stances;
(ii) the agent is disqualified from acting on the principal's behalf
pursuant to subdivision three of this section or subdivision two of
section two thousand nine hundred ninety-two of this article, or
(iii) under conditions set forth in the proxy.
(b) If, after an alternate agent's authority commences, the person
appointed as agent becomes available, willing and competent to serve as
agent:
(i) the authority of the alternate agent shall cease and the authority
of the agent shall commence; and
(ii) the attending [physician or attending nurse] practitioner shall
record the change in agent and the reasons therefor in the principal's
medical record.
§ 19. Subdivisions 1, 2, 6 and 7 of section 2983 of the public health
law, as amended by chapter 342 of the laws of 2018, are amended to read
as follows:
1. Determination by attending [physician or attending nurse] practi-
tioner. (a) A determination that a principal lacks capacity to make
health care decisions shall be made by the attending [physician or
attending nurse] practitioner to a reasonable degree of medical certain-
ty. 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 principal's incapacity as well as
its extent and probable duration. The determination shall be included in
the patient's medical record. For a decision to withdraw or withhold
life-sustaining treatment, the attending [physician or attending nurse]
practitioner who makes the determination that a principal lacks capacity
to make health care decisions must consult with another physician,
PHYSICIAN ASSISTANT, or nurse practitioner to confirm such determi-
nation. Such consultation shall also be included within the patient's
medical record.
(b) If an attending [physician or attending nurse] practitioner of a
patient in a general hospital or mental hygiene facility determines that
a patient lacks capacity because of mental illness, the attending
[physician or attending nurse] practitioner who makes the determination
S. 4841 12
must be, or must consult, for the purpose of confirming the determi-
nation, with a qualified psychiatrist. A record of such consultation
shall be included in the patient's medical record.
(c) If the attending [physician or attending nurse] practitioner
determines that a patient lacks capacity because of a developmental
disability, the attending [physician or attending nurse] practitioner
who makes the determination must be, or must consult, for the purpose of
confirming the determination, with a physician, nurse practitioner,
PHYSICIAN ASSISTANT, or clinical psychologist who either is employed by
a developmental disabilities services office named in section 13.17 of
the mental hygiene law, or who has been employed for a minimum of two
years to render care and service in a facility operated or licensed by
the office for people with developmental disabilities, or has been
approved by the commissioner of developmental disabilities in accordance
with regulations promulgated by such commissioner. Such regulations
shall require that a physician, nurse practitioner, PHYSICIAN ASSISTANT,
or clinical psychologist possess specialized training or three years
experience in treating developmental disabilities. A record of such
consultation shall be included in the patient's medical record.
(d) A physician, PHYSICIAN ASSISTANT, or nurse practitioner who has
been appointed as a patient's agent shall not make the determination of
the patient's capacity to make health care decisions.
2. Request for a determination. If requested by the agent, an attend-
ing [physician or attending nurse] practitioner shall make a determi-
nation regarding the principal's capacity to make health care decisions
for the purposes of this article.
6. Confirmation of lack of capacity. (a) The attending [physician or
attending nurse] practitioner shall confirm the principal's continued
incapacity before complying with an agent's health care decisions, other
than those decisions made at or about the time of the initial determi-
nation made pursuant to subdivision one of this section. The confirma-
tion shall be stated in writing and shall be included in the principal's
medical record.
(b) The notice requirements set forth in subdivision three of this
section shall not apply to the confirmation required by this subdivi-
sion.
7. Effect of recovery of capacity. In the event the attending [physi-
cian or attending nurse] practitioner determines that the principal has
regained capacity, the authority of the agent shall cease, but shall
recommence if the principal subsequently loses capacity as determined
pursuant to this section.
§ 20. Subdivision 2 of section 2985 of the public health law, as
amended by chapter 342 of the laws of 2018, is amended to read as
follows:
2. Duty to record revocation. (a) A physician, PHYSICIAN ASSISTANT, or
nurse practitioner who is informed of or provided with a revocation of a
health care proxy shall immediately (i) record the revocation in the
principal's medical record and (ii) notify the agent and the medical
staff responsible for the principal's care of the revocation.
(b) Any member of the staff of a health care provider informed of or
provided with a revocation of a health care proxy pursuant to this
section shall immediately notify a physician, PHYSICIAN ASSISTANT, or
nurse practitioner of such revocation.
§ 21. Subdivisions 2 and 4 of section 2994-a of the public health law,
as amended by chapter 430 of the laws of 2017, are amended to read as
follows:
S. 4841 13
2. "Attending [physician"] PRACTITIONER" means a physician, NURSE
PRACTITIONER OR PHYSICIAN ASSISTANT, selected by or assigned to a
patient pursuant to hospital policy, who has primary responsibility for
the treatment and care of the patient. Where more than one physician
[and/or], nurse practitioner OR PHYSICIAN ASSISTANT shares such respon-
sibility, or where a physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT is acting on the attending [physician's or attending nurse]
practitioner's behalf, any such physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT may act as an attending [physician or attending
nurse] practitioner pursuant to this article.
4. "Close friend" means any person, eighteen years of age or older,
who is a close friend of the patient, or a relative of the patient
(other than a spouse, adult child, parent, brother or sister), who has
maintained such regular contact with the patient as to be familiar with
the patient's activities, health, and religious or moral beliefs, and
who presents a signed statement to that effect to the attending [physi-
cian or attending nurse] practitioner.
§ 22. Subdivisions 2 and 3 of section 2994-b of the public health law,
as amended by chapter 430 of the laws of 2017, are amended to read as
follows:
2. Prior to seeking or relying upon a health care decision by a surro-
gate for a patient under this article, the attending [physician or
attending nurse] practitioner shall make reasonable efforts to determine
whether the patient has a health care agent appointed pursuant to arti-
cle twenty-nine-C of this chapter. If so, health care decisions for the
patient shall be governed by such article, and shall have priority over
decisions by any other person except the patient or as otherwise
provided in the health care proxy.
3. Prior to seeking or relying upon a health care decision by a surro-
gate for a patient under this article, if the attending [physician or
attending nurse] practitioner has reason to believe that the patient has
a history of receiving services for mental retardation or a develop-
mental disability; it reasonably appears to the attending [physician or
attending nurse] practitioner that the patient has mental retardation or
a developmental disability; or the [attending physician or attending
nurse] practitioner has reason to believe that the patient has been
transferred from a mental hygiene facility operated or licensed by the
office of mental health, then such physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT shall make reasonable efforts to determine whether
paragraphs (a), (b) or (c) of this subdivision are applicable:
(a) If the patient has a guardian appointed by a court pursuant to
article seventeen-A of the surrogate's court procedure act, health care
decisions for the patient shall be governed by section seventeen hundred
fifty-b of the surrogate's court procedure act and not by this article.
(b) If a patient does not have a guardian appointed by a court pursu-
ant to article seventeen-A of the surrogate's court procedure act but
falls within the class of persons described in paragraph (a) of subdivi-
sion one of section seventeen hundred fifty-b of such act, decisions to
withdraw or withhold life-sustaining treatment for the patient shall be
governed by section seventeen hundred fifty-b of the surrogate's court
procedure act and not by this article.
(c) If a health care decision for a patient cannot be made under para-
graphs (a) or (b) of this subdivision, but consent for the decision may
be provided pursuant to the mental hygiene law or regulations of the
office of mental health or the office for people with developmental
S. 4841 14
disabilities, then the decision shall be governed by such statute or
regulations and not by this article.
§ 23. Subdivisions 2, 3 and 7 of section 2994-c of the public health
law, as amended by chapter 430 of the laws of 2017, are amended to read
as follows:
2. Initial determination by attending [physician or attending nurse]
practitioner. An attending [physician or attending nurse] practitioner
shall make an initial determination that an adult patient lacks deci-
sion-making capacity to a reasonable degree of medical certainty. Such
determination shall include an assessment of the cause and extent of the
patient's incapacity and the likelihood that the patient will regain
decision-making capacity.
3. Concurring determinations. (a) An initial determination that a
patient lacks decision-making capacity shall be subject to a concurring
determination, independently made, where required by this subdivision. A
concurring determination shall include an assessment of the cause and
extent of the patient's incapacity and the likelihood that the patient
will regain decision-making capacity, and shall be included in the
patient's medical record. Hospitals shall adopt written policies identi-
fying the training and credentials of health or social services practi-
tioners qualified to provide concurring determinations of incapacity.
(b) (i) In a residential health care facility, a health or social
services practitioner employed by or otherwise formally affiliated with
the facility must independently determine whether an adult patient lacks
decision-making capacity.
(ii) In a general hospital a health or social services practitioner
employed by or otherwise formally affiliated with the facility must
independently determine whether an adult patient lacks decision-making
capacity if the surrogate's decision concerns the withdrawal or with-
holding of life-sustaining treatment.
(iii) With respect to decisions regarding hospice care for a patient
in a general hospital or residential health care facility, the health or
social services practitioner must be employed by or otherwise formally
affiliated with the general hospital or residential health care facili-
ty.
(c) (i) If the attending [physician or attending nurse] practitioner
makes an initial determination that a patient lacks decision-making
capacity because of mental illness, either such physician must have the
following qualifications, or another physician with the following quali-
fications must independently determine whether the patient lacks deci-
sion-making capacity: a physician licensed to practice medicine in New
York state, who is a diplomate or eligible to be certified by the Ameri-
can Board of Psychiatry and Neurology or who is certified by the Ameri-
can Osteopathic Board of Neurology and Psychiatry or is eligible to be
certified by that board. A record of such consultation shall be included
in the patient's medical record.
(ii) If the attending [physician or attending nurse] practitioner
makes an initial determination that a patient lacks decision-making
capacity because of a developmental disability, either such physician
[or], nurse practitioner OR PHYSICIAN ASSISTANT must have the following
qualifications, or another professional with the following qualifica-
tions must independently determine whether the patient lacks decision-
making capacity: a physician or clinical psychologist who either is
employed by a developmental disabilities services office named in
section 13.17 of the mental hygiene law, or who has been employed for a
minimum of two years to render care and service in a facility operated
S. 4841 15
or licensed by the office for people with developmental disabilities, or
has been approved by the commissioner of developmental disabilities in
accordance with regulations promulgated by such commissioner. Such regu-
lations shall require that a physician or clinical psychologist possess
specialized training or three years experience in treating developmental
disabilities. A record of such consultation shall be included in the
patient's medical record.
(d) If an attending [physician or attending nurse] practitioner has
determined that the patient lacks decision-making capacity and if the
health or social services practitioner consulted for a concurring deter-
mination disagrees with the attending [physician's or the attending
nurse] practitioner's determination, the matter shall be referred to the
ethics review committee if it cannot otherwise be resolved.
7. Confirmation of continued lack of decision-making capacity. An
attending [physician or attending nurse] practitioner shall confirm the
adult patient's continued lack of decision-making capacity before
complying with health care decisions made pursuant to this article,
other than those decisions made at or about the time of the initial
determination. A concurring determination of the patient's continued
lack of decision-making capacity shall be required if the subsequent
health care decision concerns the withholding or withdrawal of life-sus-
taining treatment. Health care providers shall not be required to inform
the patient or surrogate of the confirmation.
§ 24. Subdivisions 2, 3 and 5 of section 2994-d of the public health
law, as amended by chapter 430 of the laws of 2017, are amended to read
as follows:
2. Restrictions on who may be a surrogate. An operator, administrator,
or employee of a hospital or a mental hygiene facility from which the
patient was transferred, or a physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT who has privileges at the hospital or a health care
provider under contract with the hospital may not serve as the surrogate
for any adult who is a patient of such hospital, unless such individual
is related to the patient by blood, marriage, domestic partnership, or
adoption, or is a close friend of the patient whose friendship with the
patient preceded the patient's admission to the facility. If a physician
[or], nurse practitioner OR PHYSICIAN ASSISTANT serves as surrogate, the
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT shall not act
as the patient's attending [physician or attending nurse] practitioner
after his or her authority as surrogate begins.
3. Authority and duties of surrogate. (a) Scope of surrogate's author-
ity.
(i) Subject to the standards and limitations of this article, the
surrogate shall have the authority to make any and all health care deci-
sions on the adult patient's behalf that the patient could make.
(ii) Nothing in this article shall obligate health care providers to
seek the consent of a surrogate if an adult patient has already made a
decision about the proposed health care, expressed orally or in writing
or, with respect to a decision to withdraw or withhold life-sustaining
treatment expressed either orally during hospitalization in the presence
of two witnesses eighteen years of age or older, at least one of whom is
a health or social services practitioner affiliated with the hospital,
or in writing. If an attending [physician or attending nurse] practi-
tioner relies on the patient's prior decision, the physician [or], nurse
practitioner OR PHYSICIAN ASSISTANT shall record the prior decision in
the patient's medical record. If a surrogate has already been designated
for the patient, the attending [physician or attending nurse] practi-
S. 4841 16
tioner shall make reasonable efforts to notify the surrogate prior to
implementing the decision; provided that in the case of a decision to
withdraw or withhold life-sustaining treatment, the attending [physician
or attending nurse] practitioner shall make diligent efforts to notify
the surrogate and, if unable to notify the surrogate, shall document the
efforts that were made to do so.
(b) Commencement of surrogate's authority. The surrogate's authority
shall commence upon a determination, made pursuant to section twenty-
nine hundred ninety-four-c of this article, that the adult patient lacks
decision-making capacity and upon identification of a surrogate pursuant
to subdivision one of this section. In the event an attending [physician
or nurse] practitioner determines that the patient has regained deci-
sion-making capacity, the authority of the surrogate shall cease.
(c) Right and duty to be informed. Notwithstanding any law to the
contrary, the surrogate shall have the right to receive medical informa-
tion and medical records necessary to make informed decisions about the
patient's health care. Health care providers shall provide and the
surrogate shall seek information necessary to make an informed decision,
including information about the patient's diagnosis, prognosis, the
nature and consequences of proposed health care, and the benefits and
risks of and [alternative] ALTERNATIVES to proposed health care.
5. Decisions to withhold or withdraw life-sustaining treatment. In
addition to the standards set forth in subdivision four of this section,
decisions by surrogates to withhold or withdraw life-sustaining treat-
ment (including decisions to accept a hospice plan of care that provides
for the withdrawal or withholding of life-sustaining treatment) shall be
authorized only if the following conditions are satisfied, as applica-
ble:
(a)(i) Treatment would be an extraordinary burden to the patient and
an attending [physician or attending nurse] practitioner determines,
with the independent concurrence of another physician [or], nurse prac-
titioner OR PHYSICIAN ASSISTANT, that, to a reasonable degree of medical
certainty and in accord with accepted medical standards, (A) the patient
has an illness or injury which can be expected to cause death within six
months, whether or not treatment is provided; or (B) the patient is
permanently unconscious; or
(ii) The provision of treatment would involve such pain, suffering or
other burden that it would reasonably be deemed inhumane or extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending [physi-
cian or attending nurse] practitioner with the independent concurrence
of another physician [or], nurse practitioner OR PHYSICIAN ASSISTANT to
a reasonable degree of medical certainty and in accord with accepted
medical standards.
(b) In a residential health care facility, a surrogate shall have the
authority to refuse life-sustaining treatment under subparagraph (ii) of
paragraph (a) of this subdivision only if the ethics review committee,
including at least one physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT who is not directly responsible for the patient's care, or a
court of competent jurisdiction, reviews the decision and determines
that it meets the standards set forth in this article. This requirement
shall not apply to a decision to withhold cardiopulmonary resuscitation.
(c) In a general hospital, if the attending [physician or attending
nurse] practitioner objects to a surrogate's decision, under subpara-
graph (ii) of paragraph (a) of this subdivision, to withdraw or withhold
nutrition and hydration provided by means of medical treatment, the
S. 4841 17
decision shall not be implemented until the ethics review committee,
including at least one physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT who is not directly responsible for the patient's care, or a
court of competent jurisdiction, reviews the decision and determines
that it meets the standards set forth in this subdivision and subdivi-
sion four of this section.
(d) Providing nutrition and hydration orally, without reliance on
medical treatment, is not health care under this article and is not
subject to this article.
(e) Expression of decisions. The surrogate shall express a decision to
withdraw or withhold life-sustaining treatment either orally to an
attending [physician or attending nurse] practitioner or in writing.
§ 25. Subdivisions 2 and 3 of section 2994-e of the public health law,
as amended by chapter 430 of the laws of 2017, are amended to read as
follows:
2. Decision-making standards and procedures for minor patient. (a) The
parent or guardian of a minor patient shall make decisions in accordance
with the minor's best interests, consistent with the standards set forth
in subdivision four of section twenty-nine hundred ninety-four-d of this
article, taking into account the minor's wishes as appropriate under the
circumstances.
(b) An attending [physician or attending nurse] practitioner, in
consultation with a minor's parent or guardian, shall determine whether
a minor patient has decision-making capacity for a decision to withhold
or withdraw life-sustaining treatment. If the minor has such capacity, a
parent's or guardian's decision to withhold or withdraw life-sustaining
treatment for the minor may not be implemented without the minor's
consent.
(c) Where a parent or guardian of a minor patient has made a decision
to withhold or withdraw life-sustaining treatment and an attending
[physician or attending nurse] practitioner has reason to believe that
the minor patient has a parent or guardian who has not been informed of
the decision, including a non-custodial parent or guardian, an attending
[physician,attending nurse] practitioner or someone acting on his or her
behalf, shall make reasonable efforts to determine if the uninformed
parent or guardian has maintained substantial and continuous contact
with the minor and, if so, shall make diligent efforts to notify that
parent or guardian prior to implementing the decision.
3. Decision-making standards and procedures for emancipated minor
patient. (a) If an attending [physician or attending nurse] practitioner
determines that a patient is an emancipated minor patient with deci-
sion-making capacity, the patient shall have the authority to decide
about life-sustaining treatment. Such authority shall include a decision
to withhold or withdraw life-sustaining treatment if an attending
[physician or attending nurse] practitioner and the ethics review
committee determine that the decision accords with the standards for
surrogate decisions for adults, and the ethics review committee approves
the decision.
(b) If the hospital can with reasonable efforts ascertain the identity
of the parents or guardian of an emancipated minor patient, the hospital
shall notify such persons prior to withholding or withdrawing life-sus-
taining treatment pursuant to this subdivision.
§ 26. Section 2994-f of the public health law, as amended by chapter
430 of the laws of 2017, is amended to read as follows:
§ 2994-f. Obligations of attending [physician or attending nurse]
practitioner. 1. An attending [physician or attending nurse] practition-
S. 4841 18
er informed of a decision to withdraw or withhold life-sustaining treat-
ment made pursuant to the standards of this article shall record the
decision in the patient's medical record, review the medical basis for
the decision, and shall either: (a) implement the decision, or (b)
promptly make his or her objection to the decision and the reasons for
the objection known to the decision-maker, and either make all reason-
able efforts to arrange for the transfer of the patient to another
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT, if necessary,
or promptly refer the matter to the ethics review committee.
2. If an attending [physician or attending nurse] practitioner has
actual notice of the following objections or disagreements, he or she
shall promptly refer the matter to the ethics review committee if the
objection or disagreement cannot otherwise be resolved:
(a) A health or social services practitioner consulted for a concur-
ring determination that an adult patient lacks decision-making capacity
disagrees with the attending [physician's or attending nurse] practi-
tioner's determination; or
(b) Any person on the surrogate list objects to the designation of the
surrogate pursuant to subdivision one of section twenty-nine hundred
ninety-four-d of this article; or
(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.
§ 27. Subdivisions 3, 4, 5, 5-a and 6 of section 2994-g of the public
health law, as amended by chapter 430 of the laws of 2017, are amended
to read as follows:
3. Routine medical treatment. (a) For purposes of this subdivision,
"routine medical treatment" means any treatment, service, or procedure
to diagnose or treat an individual's physical or mental condition, such
as the administration of medication, the extraction of bodily fluids for
analysis, or dental care performed with a local anesthetic, for which
health care providers ordinarily do not seek specific consent from the
patient or authorized representative. It shall not include the long-term
provision of treatment such as ventilator support or a nasogastric tube
but shall include such treatment when provided as part of post-operative
care or in response to an acute illness and recovery is reasonably
expected within one month or less.
(b) An attending [physician or attending nurse] practitioner shall be
authorized to decide about routine medical treatment for an adult
patient who has been determined to lack decision-making capacity pursu-
S. 4841 19
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
responsible for the patient's care.
(ii) In a general hospital, at least one other physician [or], nurse
practitioner OR PHYSICIAN ASSISTANT designated by the hospital must
independently determine that he or she concurs that the recommendation
is appropriate.
(iii) In a residential health care facility, and for a hospice patient
not in a general hospital, the medical director of the facility or
hospice, or a physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
designated by the medical director, must independently determine that he
or she concurs that the recommendation is appropriate; provided that if
the medical director is the patient's attending [physician or attending
nurse] practitioner, a different physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT designated by the residential health care facility
or hospice must make this independent determination. Any health or
social services practitioner employed by or otherwise formally affil-
iated with the facility or hospice may provide a second opinion for
decisions about physical restraints made pursuant to this subdivision.
5. Decisions to withhold or withdraw life-sustaining treatment. (a) A
court of competent jurisdiction may make a decision to withhold or with-
draw life-sustaining treatment for an adult patient who has been deter-
mined to lack decision-making capacity pursuant to section twenty-nine
hundred ninety-four-c of this article if the court finds that the deci-
sion accords with standards for decisions for adults set forth in subdi-
visions four and five of section twenty-nine hundred ninety-four-d of
this article.
(b) If the attending [physician or attending nurse] practitioner, with
independent concurrence of a second physician [or], nurse practitioner
OR PHYSICIAN ASSISTANT designated by the hospital, determines to a
reasonable degree of medical certainty that:
(i) life-sustaining treatment offers the patient no medical benefit
because the patient will die imminently, even if the treatment is
provided; and
S. 4841 20
(ii) the provision of life-sustaining treatment would violate accepted
medical standards, then such treatment may be withdrawn or withheld from
an adult patient who has been determined to lack decision-making capaci-
ty pursuant to section twenty-nine hundred ninety-four-c of this arti-
cle, without judicial approval. This paragraph shall not apply to any
treatment necessary to alleviate pain or discomfort.
5-a. Decisions regarding hospice care. An attending [physician or
attending nurse] practitioner shall be authorized to make decisions
regarding hospice care and execute appropriate documents for such deci-
sions (including a hospice election form) for an adult patient under
this section who is hospice eligible in accordance with the following
requirements.
(a) The attending [physician or attending nurse] practitioner shall
make decisions under this section in consultation with staff directly
responsible for the patient's care, and shall base his or her decisions
on the standards for surrogate decisions set forth in subdivisions four
and five of section twenty-nine hundred ninety-four-d of this article;
(b) There is a concurring opinion as follows:
(i) in a general hospital, at least one other physician [or], nurse
practitioner OR PHYSICIAN ASSISTANT designated by the hospital must
independently determine that he or she concurs that the recommendation
is consistent with such standards for surrogate decisions;
(ii) in a residential health care facility, the medical director of
the facility, or a physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT designated by the medical director, must independently deter-
mine that he or she concurs that the recommendation is consistent with
such standards for surrogate decisions; provided that if the medical
director is the patient's attending [physician or attending nurse] prac-
titioner, a different physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT designated by the residential health care facility must make
this independent determination; or
(iii) in settings other than a general hospital or residential health
care facility, the medical director of the hospice, or a physician
designated by the medical director, must independently determine that he
or she concurs that the recommendation is medically appropriate and
consistent with such standards for surrogate decisions; provided that if
the medical director is the patient's attending physician, a different
physician designated by the hospice must make this independent determi-
nation; and
(c) The ethics review committee of the general hospital, residential
health care facility or hospice, as applicable, including at least one
physician [or], nurse practitioner OR PHYSICIAN ASSISTANT who is not the
patient's attending [physician or attending nurse] practitioner, or a
court of competent jurisdiction, must review the decision and determine
that it is consistent with such standards for surrogate decisions.
6. Physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
objection. If a physician [or], nurse practitioner OR PHYSICIAN ASSIST-
ANT consulted for a concurring opinion objects to an attending [physi-
cian's or attending nurse] practitioner's recommendation or determi-
nation made pursuant to this section, or a member of the hospital staff
directly responsible for the patient's care objects to an attending
[physician's or attending nurse] practitioner's recommendation about
major medical treatment or treatment without medical benefit, the matter
shall be referred to the ethics review committee if it cannot be other-
wise resolved.
S. 4841 21
§ 28. Section 2994-j of the public health law, as amended by chapter
430 of the laws of 2017, is amended to read as follows:
§ 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
guardian of a minor patient may at any time revoke his or her consent to
withhold or withdraw life-sustaining treatment by informing an attending
[physician, attending nurse] practitioner or a member of the medical or
nursing staff of the revocation.
2. An attending [physician or attending nurse] practitioner informed
of a revocation of consent made pursuant to this section shall imme-
diately:
(a) record the revocation in the patient's medical record;
(b) cancel any orders implementing the decision to withhold or with-
draw treatment; and
(c) notify the hospital staff directly responsible for the patient's
care of the revocation and any cancellations.
3. Any member of the medical or nursing staff, other than a nurse
practitioner OR PHYSICIAN ASSISTANT, informed of a revocation made
pursuant to this section shall immediately notify an attending [physi-
cian or attending nurse] practitioner of the revocation.
§ 29. The opening paragraph of subdivision 2 of section 2994-k of the
public health law, as amended by chapter 430 of the laws of 2017, is
amended to read as follows:
If a decision to withhold or withdraw life-sustaining treatment has
been made pursuant to this article, and an attending [physician or
attending nurse] practitioner determines at any time that the decision
is no longer appropriate or authorized because the patient has regained
decision-making capacity or because the patient's condition has other-
wise improved, the physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT shall immediately:
§ 30. Section 2994-l of the public health law, as amended by chapter
430 of the laws of 2017, is amended to read as follows:
§ 2994-l. Interinstitutional transfers. If a patient with an order to
withhold or withdraw life-sustaining treatment is transferred from a
mental hygiene facility to a hospital or from a hospital to a different
hospital, any such order or plan shall remain effective until an attend-
ing [physician or attending nurse] practitioner first examines the
transferred patient, whereupon an attending [physician or attending
nurse] practitioner must either:
1. Issue appropriate orders to continue the prior order or plan. Such
orders may be issued without obtaining another consent to withhold or
withdraw life-sustaining treatment pursuant to this article; or
2. Cancel such order, if the attending [physician or attending nurse]
practitioner determines that the order is no longer appropriate or
authorized. Before canceling the order the attending [physician or
attending nurse] practitioner shall make reasonable efforts to notify
the person who made the decision to withhold or withdraw treatment and
the hospital staff directly responsible for the patient's care of any
such cancellation. If such notice cannot reasonably be made prior to
canceling the order or plan, the attending [physician or attending
nurse] practitioner shall make such notice as soon as reasonably practi-
cable after cancellation.
§ 31. Subdivisions 3 and 4 of section 2994-m of the public health law,
as amended by chapter 430 of the laws of 2017, are amended to read as
follows:
3. Committee membership. The membership of ethics review committees
must be interdisciplinary and must include at least five members who
S. 4841 22
have demonstrated an interest in or commitment to patient's rights or to
the medical, public health, or social needs of those who are ill. At
least three ethics review committee members must be health or social
services practitioners, at least one of whom must be a registered nurse
and one of whom must be a physician [or], nurse practitioner OR PHYSI-
CIAN ASSISTANT. At least one member must be a person without any gover-
nance, employment or contractual relationship with the hospital. In a
residential health care facility the facility must offer the residents'
council of the facility (or of another facility that participates in the
committee) the opportunity to appoint up to two persons to the ethics
review committee, none of whom may be a resident of or a family member
of a resident of such facility, and both of whom shall be persons who
have expertise in or a demonstrated commitment to patient rights or to
the care and treatment of the elderly or nursing home residents through
professional or community activities, other than activities performed as
a health care provider.
4. Procedures for ethics review committee. (a) These procedures are
required only when: (i) the ethics review committee is convened to
review a decision by a surrogate to withhold or withdraw life-sustaining
treatment for: (A) a patient in a residential health care facility
pursuant to paragraph (b) of subdivision five of section twenty-nine
hundred ninety-four-d of this article; (B) a patient in a general hospi-
tal pursuant to paragraph (c) of subdivision five of section twenty-nine
hundred ninety-four-d of this article; or (C) an emancipated minor
patient pursuant to subdivision three of section twenty-nine hundred
ninety-four-e of this article; or (ii) when a person connected with the
case requests the ethics review committee to provide assistance in
resolving a dispute about proposed care. Nothing in this section shall
bar health care providers from first striving to resolve disputes
through less formal means, including the informal solicitation of
ethical advice from any source.
(b)(i) A person connected with the case may not participate as an
ethics review committee member in the consideration of that case.
(ii) The ethics review committee shall respond promptly, as required
by the circumstances, to any request for assistance in resolving a
dispute or consideration of a decision to withhold or withdraw life-sus-
taining treatment pursuant to paragraphs (b) and (c) of subdivision five
of section twenty-nine hundred ninety-four-d of this article made by a
person connected with the case. The committee shall permit persons
connected with the case to present their views to the committee, and to
have the option of being accompanied by an advisor when participating in
a committee meeting.
(iii) The ethics review committee shall promptly provide the patient,
where there is any indication of the patient's ability to comprehend the
information, the surrogate, other persons on the surrogate list directly
involved in the decision or dispute regarding the patient's care, any
parent or guardian of a minor patient directly involved in the decision
or dispute regarding the minor patient's care, an attending [physician,
an attending nurse] practitioner, the hospital, and other persons the
committee deems appropriate, with the following:
(A) notice of any pending case consideration concerning the patient,
including, for patients, persons on the surrogate list, parents and
guardians, information about the ethics review committee's procedures,
composition and function; and
(B) the committee's response to the case, including a written state-
ment of the reasons for approving or disapproving the withholding or
S. 4841 23
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.
§ 32. Paragraph (b) of subdivision 4 of section 2994-r of the public
health law, as amended by chapter 430 of the laws of 2017, is amended to
read as follows:
(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.
§ 33. Subdivision 1 of section 2994-s of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
1. Any hospital, attending [physician or nurse] practitioner that
refuses to honor a health care decision by a surrogate made pursuant to
this article and in accord with the standards set forth in this article
shall not be entitled to compensation for treatment, services, or proce-
dures refused by the surrogate, except that this subdivision shall not
apply:
(a) when a hospital, physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT exercises the rights granted by section twenty-nine hundred
ninety-four-n of this article, provided that the physician, nurse prac-
titioner, PHYSICIAN ASSISTANT or hospital promptly fulfills the obli-
gations set forth in section twenty-nine hundred ninety-four-n of this
article;
(b) while a matter is under consideration by the ethics review commit-
tee, provided that the matter is promptly referred to and considered by
the committee;
(c) in the event of a dispute between individuals on the surrogate
list; or
(d) if the physician, nurse practitioner, PHYSICIAN ASSISTANT or
hospital prevails in any litigation concerning the surrogate's decision
to refuse the treatment, services or procedure. Nothing in this section
shall determine or affect how disputes among individuals on the surro-
gate list are resolved.
S. 4841 24
§ 34. Subdivision 2 of section 2994-aa of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
2. "Attending [physician"] PRACTITIONER" means the physician, NURSE
PRACTITIONER OR PHYSICIAN ASSISTANT who has primary responsibility for
the treatment and care of the patient. Where more than one physician
[or], nurse practitioner OR PHYSICIAN ASSISTANT shares such responsibil-
ity, any such physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
may act as the attending [physician or attending nurse] practitioner
pursuant to this article.
§ 35. Section 2994-cc of the public health law, as amended by chapter
430 of the laws of 2017, is amended to read as follows:
§ 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An
adult with decision-making capacity, a health care agent, or a surrogate
may consent to a nonhospital order not to resuscitate orally to the
attending [physician or attending nurse] practitioner or in writing. If
a patient consents to a nonhospital order not to resuscitate while in a
correctional facility, notice of the patient's consent shall be given to
the facility director and reasonable efforts shall be made to notify an
individual designated by the patient to receive such notice prior to the
issuance of the nonhospital order not to resuscitate. Notification to
the facility director or the individual designated by the patient shall
not delay issuance of a nonhospital order not to resuscitate.
2. Consent by a health care agent shall be governed by article twen-
ty-nine-C of this chapter.
3. Consent by a surrogate shall be governed by article twenty-nine-CC
of this chapter, except that: (a) a second determination of capacity
shall be made by a health or social services practitioner; and (b) the
authority of the ethics review committee set forth in article
twenty-nine-CC of this chapter shall apply only to nonhospital orders
issued in a hospital.
4. (a) When the concurrence of a second physician [or], nurse practi-
tioner OR PHYSICIAN ASSISTANT is sought to fulfill the requirements for
the issuance of a nonhospital order not to resuscitate for patients in a
correctional facility, such second physician [or], nurse practitioner OR
PHYSICIAN ASSISTANT shall be selected by the chief medical officer of
the department of corrections and community supervision or his or her
designee.
(b) When the concurrence of a second physician [or], nurse practition-
er OR PHYSICIAN ASSISTANT is sought to fulfill the requirements for the
issuance of a nonhospital order not to resuscitate for hospice and home
care patients, such second physician [or] , nurse practitioner OR PHYSI-
CIAN ASSISTANT shall be selected by the hospice medical director or
hospice nurse coordinator designated by the medical director or by the
home care services agency director of patient care services, as appro-
priate to the patient.
5. Consent by a patient or a surrogate for a patient in a mental
hygiene facility shall be governed by article twenty-nine-B of this
chapter.
§ 36. Section 2994-dd of the public health law, as amended by chapter
430 of the laws of 2017, is amended to read as follows:
§ 2994-dd. Managing a nonhospital order not to resuscitate. 1. The
attending [physician or attending nurse] practitioner shall record the
issuance of a nonhospital order not to resuscitate in the patient's
medical record.
S. 4841 25
2. A nonhospital order not to resuscitate shall be issued upon a stan-
dard form prescribed by the commissioner. The commissioner shall also
develop a standard bracelet that may be worn by a patient with a nonhos-
pital order not to resuscitate to identify that status; provided, howev-
er, that no person may require a patient to wear such a bracelet and
that no person may require a patient to wear such a bracelet as a condi-
tion for honoring a nonhospital order not to resuscitate or for provid-
ing health care services.
3. An attending [physician or attending nurse] practitioner who has
issued a nonhospital order not to resuscitate, and who transfers care of
the patient to another physician [or], nurse practitioner OR PHYSICIAN
ASSISTANT, shall inform the physician [or], nurse practitioner OR PHYSI-
CIAN ASSISTANT of the order.
4. For each patient for whom a nonhospital order not to resuscitate
has been issued, the attending [physician or attending nurse] practi-
tioner shall review whether the order is still appropriate in light of
the patient's condition each time he or she examines the patient, wheth-
er in the hospital or elsewhere, but at least every ninety days,
provided that the review need not occur more than once every seven days.
The attending [physician or attending nurse] practitioner shall record
the review in the patient's medical record provided, however, that a
PHYSICIAN ASSISTANT OR A registered nurse, other than the attending
nurse practitioner, who provides direct care to the patient may record
the review in the medical record at the direction of the physician. In
such case, the attending [physician or attending nurse] practitioner
shall include a confirmation of the review in the patient's medical
record within fourteen days of such review. Failure to comply with this
subdivision shall not render a nonhospital order not to resuscitate
ineffective.
5. A person who has consented to a nonhospital order not to resusci-
tate may at any time revoke his or her consent to the order by any act
evidencing a specific intent to revoke such consent. Any health care
professional, other than the attending [physician or attending nurse]
practitioner, informed of a revocation of consent to a nonhospital order
not to resuscitate shall notify the attending [physician or attending
nurse] practitioner of the revocation. An attending [physician or
attending nurse] practitioner who is informed that a nonhospital order
not to resuscitate has been revoked shall record the revocation in the
patient's medical record, cancel the order and make diligent efforts to
retrieve the form issuing the order, and the standard bracelet, if any.
6. The commissioner may authorize the use of one or more alternative
forms for issuing a nonhospital order not to resuscitate (in place of
the standard form prescribed by the commissioner under subdivision two
of this section). Such alternative form or forms may also be used to
issue a non-hospital do not intubate order. Any such alternative forms
intended for use for persons with developmental disabilities or persons
with mental illness who are incapable of making their own health care
decisions or who have a guardian of the person appointed pursuant to
article eighty-one of the mental hygiene law or article seventeen-A of
the surrogate's court procedure act must also be approved by the commis-
sioner of developmental disabilities or the commissioner of mental
health, as appropriate. An alternative form under this subdivision shall
otherwise conform with applicable federal and state law. This subdivi-
sion does not limit, restrict or impair the use of an alternative form
for issuing an order not to resuscitate in a general hospital or resi-
dential health care facility under article twenty-eight of this chapter
S. 4841 26
or a hospital under subdivision ten of section 1.03 of the mental
hygiene law.
§ 37. Subdivision 2 of section 2994-ee of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
2. Hospital emergency services physicians and hospital emergency
services nurse practitioners AND PHYSICIAN ASSISTANTS may direct that
the order be disregarded if other significant and exceptional medical
circumstances warrant disregarding the order.
§ 38. This act shall take effect on the one hundred eightieth day
after it shall have become a law; provided, however that if chapter 342
of the laws of 2018 shall not have taken effect on or before such date,
then sections seventeen, eighteen, nineteen and twenty of this act shall
take effect on the same date and in the same manner as such chapter 342
of the laws of 2018, takes effect. 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.
