S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    175
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
   Committee on Health
 
 AN ACT to amend the public health law, in relation to making  technical,
   minor  and  coordinating  amendments  regarding health care agents and
   proxies, decisions under the family health  care  decisions  act,  and
   nonhospital orders not to resuscitate
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. 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.
   §  2.  Subdivision  2  of  section  2982  of the public health law, as
 amended by chapter 230 of the laws  of  2004,  is  amended  to  read  as
 follows:
   2. Decision-making standard. After consultation with a licensed physi-
 cian,   registered   nurse,  PHYSICIAN  ASSISTANT,  NURSE  PRACTITIONER,
 licensed psychologist, licensed master  social  worker,  or  a  licensed
 clinical  social worker, the agent shall make health care decisions: (a)
 in accordance with the principal's  wishes,  including  the  principal's
 religious  and  moral  beliefs; or (b) if the principal's wishes are not
 reasonably known and cannot with reasonable diligence be ascertained, in
 accordance with the principal's best interests; provided, however,  that
 if  the  principal's  wishes  regarding the administration of artificial
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00325-01-1

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 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.
   §  3.  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.
   § 4. 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:
   § 5. Section 2993 of the public health law, as amended by chapter  672
 of the laws of 2019, 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 for
 people with 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] TWEN-
 TY-NINE hundred ninety-one of this article.
   § 6. Subdivisions 17 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.
   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.
   §  7.  The opening paragraph of subdivision 3 of section 2994-b of the
 public health law, as amended by chapter 708 of the  laws  of  2019,  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 practitioner has

 A. 175                              3
 
 reason to believe that the patient has a history of  receiving  services
 for  [mental  retardation  or] a developmental disability; it reasonably
 appears to the attending  practitioner  that  the  patient  has  [mental
 retardation  or]  a  developmental  disability;  or the 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, nurse practitioner  or  physician  assistant  shall
 make  reasonable efforts to determine whether paragraphs (a), (b) or (c)
 of this subdivision are applicable:
   § 8. Subdivision 3 of section 2994-e of  the  public  health  law,  as
 amended  by  chapter  708  of  the  laws  of 2019, is amended to read as
 follows:
   3. Decision-making standards  and  procedures  for  emancipated  minor
 patient.  (a)  If an attending practitioner determines that a patient is
 an emancipated minor patient with decision-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 treat-
 ment. Such authority shall include a decision to  withhold  or  withdraw
 life-sustaining  treatment  if  an attending 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  DOCUMENTS  SUCH
 DILIGENT  EFFORTS  IN THE PATIENT'S MEDICAL RECORD, prior to withholding
 or withdrawing life-sustaining treatment pursuant to this subdivision.
   § 9. Subparagraph (iv) of paragraph (b) of subdivision  4  of  section
 2994-m  of  the public health law, as amended by chapter 708 of the laws
 of 2019, 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.
   § 10. 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.
   §  11. 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

 A. 175                              4

 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.
   §  12.  Subdivisions 12 and 13 of section 2994-aa of the public health
 law, subdivision 12 as amended by chapter 672 of the laws  of  2019  and
 subdivision  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 for  people  with
 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.
   § 13. Subdivisions 2 and 6 of section 2994-dd  of  the  public  health
 law,  as amended by chapter 708 of the laws of 2019, 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 OR OTHER ARTICLE that 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 and that no person may require a patient to wear such  a
 bracelet as a condition for honoring a nonhospital order not to resusci-
 tate 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.
   §  14. 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

 A. 175                              5
 
 ninety-four-ee of this article, or for other  actions  taken  reasonably
 and in good faith pursuant to this [section] ARTICLE.
   §  15.  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.