S T A T E O F N E W Y O R K
________________________________________________________________________
5940
2019-2020 Regular Sessions
I N S E N A T E
May 16, 2019
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed 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. Subdivision 10 of section 2980 of the public health law, as
amended by chapter 23 of the laws of 1994, is amended to read as
follows:
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.
§ 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09564-03-9
S. 5940 2
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:
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.
S. 5940 3
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,
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.
S. 5940 4
§ 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:
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
S. 5940 5
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.