S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2178
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 14, 2021
                                ___________
 
 Introduced  by  M. of A. PRETLOW, GOTTFRIED -- read once and referred to
   the Committee on Health
 
 AN ACT to amend the public health law and the surrogate's  court  proce-
   dure  act,  in  relation  to  conforming and improving the process for
   determining incapacity
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivisions  2,  3, 4, 5, 6 and 7 of section 2983 of the
 public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
   § 2. Subdivision 1 of section  2983  of  the  public  health  law,  as
 amended  by  chapter  708  of  the  laws  of 2019, is amended to read as
 follows:
   1. [Determination] INITIAL DETERMINATION  by  attending  practitioner.
 [(a) A] AN INITIAL determination that a principal lacks capacity to make
 health  care  decisions shall be made by the attending practitioner to a
 reasonable degree of medical certainty.  The determination shall be made
 in writing and  shall  contain  such  attending  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  practitioner  who makes the
 determination that a principal lacks capacity to make health care  deci-
 sions must consult with another physician, physician assistant, or nurse
 practitioner to confirm such determination. Such consultation shall also
 be included within the patient's medical record.] A 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. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT  DECISIONS.
 FOR  A  DECISION  TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE
 FOLLOWING SHALL APPLY:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00443-01-1
              

 A. 2178                             2
 
   (A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY  SHALL  BE
 SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR
 SOCIAL  SERVICES  PRACTITIONER. 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  IDENTIFYING  THE  TRAINING  AND CREDENTIALS OF
 HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE  CONCURRING
 DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS.
   (b) If an attending practitioner of a patient in a general hospital or
 mental hygiene facility determines that a patient lacks capacity because
 of  mental  illness,  [the attending practitioner who makes the determi-
 nation must be, or must consult,  for  the  purpose  of  confirming  the
 determination,  with  a qualified psychiatrist] EITHER SUCH PRACTITIONER
 OR THE CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A
 PRACTITIONER LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO  IS  A
 DIPLOMATE  OR ELIGIBLE TO BE CERTIFIED BY THE AMERICAN BOARD OF PSYCHIA-
 TRY AND NEUROLOGY OR WHO IS CERTIFIED BY THE AMERICAN 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.
   (c) If the attending practitioner  determines  that  a  patient  lacks
 capacity  because  of a developmental disability, [the attending practi-
 tioner who makes the determination must be, or  must  consult,  for  the
 purpose  of confirming the determination, with] EITHER SUCH PRACTITIONER
 OR THE CONCURRING PRACTITIONER MUST HAVE THE  FOLLOWING  QUALIFICATIONS:
 EITHER  (I)  FOR  A  PATIENT  IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES
 PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE  SUCH  DETERMI-
 NATION  IN  ACCORDANCE WITH WRITTEN POLICIES ADOPTED BY THE HOSPITAL; OR
 (II) FOR A PATIENT IN ANY  SETTING,  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.]
   §  3.  Subdivision  3  of  section 2994-c of the public health law, as
 amended by chapter 708 of the laws  of  2019,  is  amended  to  read  as
 follows:
   3.  Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS.
 FOR A DECISION TO WITHDRAW OR WITHHOLD  LIFE-SUSTAINING  TREATMENT,  THE
 FOLLOWING SHALL APPLY: (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] BY A HEALTH OR
 SOCIAL SERVICES PRACTITIONER EMPLOYED OR OTHERWISE  FORMALLY  AFFILIATED
 WITH  THE  HOSPITAL. A concurring determination shall include an assess-
 ment of the cause and extent of the patient's incapacity and the likeli-
 hood that the patient will regain decision-making capacity, and shall be

 A. 2178                             3
 
 included in the patient's medical record. Hospitals shall adopt  written
 policies  identifying  the  training and credentials of health or social
 services practitioners 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 practitioner makes an  initial  determination
 that a patient lacks decision-making capacity because of mental illness,
 either  such  physician  OR  THE  CONCURRING  PRACTITIONER must have the
 following qualifications[, or another physician with the following qual-
 ifications 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 practitioner makes an initial determination that
 a patient lacks decision-making  capacity  because  of  a  developmental
 disability,  either  such  physician, nurse practitioner [or], physician
 assistant, OR THE CONCURRING PRACTITIONER must have the following quali-
 fications[, or another professional with  the  following  qualifications
 must  independently  determine whether the patient lacks decision-making
 capacity]:  EITHER (A) A HEALTH OR SOCIAL SERVICES  PRACTITIONER  QUALI-
 FIED  BY  TRAINING  EXPERIENCE  TO MAKE SUCH DETERMINATION IN ACCORDANCE
 WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL, OR (B) a physician or
 clinical psychologist who either is employed by a developmental disabil-
 ities 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 or
 clinical psychologist possess specialized training or three years  expe-
 rience  in treating developmental disabilities. A record of such consul-
 tation shall be included in the patient's medical record.
   (d) If an attending practitioner has determined that the patient lacks
 decision-making capacity and if the health or  social  services  practi-
 tioner  consulted  for  a  concurring  determination  disagrees with the
 attending practitioner's determination, the matter shall be referred  to
 the ethics review committee if it cannot otherwise be resolved.
   § 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
 as  amended  by  chapter 708 of the laws of 2019, are amended to read as
 follows:

 A. 2178                             4
 
   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 OR HOSPICE.
   4. (a) When the concurrence of a second [physician, nurse practitioner
 or physician assistant] HEALTH OR SOCIAL SERVICES PRACTITIONER 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, nurse practitioner or physician assistant] HEALTH OR  SOCIAL
 SERVICES  PRACTITIONER shall be selected by the chief medical officer of
 the department of corrections and community supervision or  his  or  her
 designee.
   (b) When the concurrence of a second [physician, nurse practitioner or
 physician assistant] HEALTH OR SOCIAL SERVICES PRACTITIONER is sought to
 fulfill  the requirements for the issuance of a nonhospital order not to
 resuscitate for [hospice and] home care patients,  such  second  [physi-
 cian,  nurse  practitioner  or  physician  assistant]  HEALTH  OR SOCIAL
 SERVICES PRACTITIONER 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
 appropriate to the patient].
   § 5. Paragraph (a) of subdivision 4 of section 1750-b  of  the  surro-
 gate's  court  procedure  act,  as amended by chapter 198 of the laws of
 2016, is amended to read as follows:
   (a) The attending [physician] PRACTITIONER, as defined in  subdivision
 two  of  section  twenty-nine  hundred  eighty of the public health law,
 [must confirm] SHALL INITIALLY  DETERMINE  to  a  reasonable  degree  of
 medical  certainty  that the person who is intellectually disabled lacks
 capacity to make health care decisions.  The determination thereof shall
 be included in the  person  who  is  intellectually  disabled's  medical
 record,  and  shall  contain such attending [physician's] PRACTITIONER'S
 opinion regarding the cause and nature of the person who is  intellectu-
 ally  disabled's incapacity as well as its extent and probable duration.
 The attending [physician] PRACTITIONER who makes [the confirmation] SUCH
 INITIAL DETERMINATION shall consult with  another  PRACTITIONER,  physi-
 cian,  or  a licensed psychologist, to further confirm the person who is
 intellectually disabled's lack of capacity.    [The]  IF  THE  ATTENDING
 PRACTITIONER MAKES AN INITIAL DETERMINATION THAT A PATIENT LACKS CAPACI-
 TY  TO  MAKE  HEALTH  CARE DECISIONS BECAUSE OF INTELLECTUAL DISABILITY,
 THEN THE attending [physician who makes the confirmation,]  PRACTITIONER
 or  the  physician  or  licensed  psychologist  with  whom the attending
 [physician] PRACTIONER consults[,]EITHER (I) FOR A PATIENT IN A  GENERAL
 HOSPITAL,  RESIDENTIAL  HEALTH  CARE  FACILITY OR HOSPICE, must [(i)] BE
 QUALIFIED BY TRAINING OR  EXPERIENCE  TO  MAKE  SUCH  DETERMINATION,  IN
 ACCORDANCE  WITH  POLICIES  ADOPTED BY THE GENERAL HOSPITAL, RESIDENTIAL
 HEALTH CARE FACILITY OR HOSPICE; OR (II) FOR A PATIENT IN  ANY  SETTING,
 MUST  (A)  be  employed  by a developmental disabilities services office
 named in section 13.17 of the mental hygiene  law  or  employed  by  the
 office  for  people with developmental disabilities to provide treatment
 and care to people with developmental disabilities, or [(ii)]  (B)  have
 been employed for a minimum of two years to render care and service in a
 facility  or  program operated, licensed or authorized by the office for
 people  with  developmental  disabilities,  or  [(iii)]  (C)  have  been
 approved by the commissioner of the office for people with developmental

 A. 2178                             5
 
 disabilities  in accordance with regulations promulgated by such commis-
 sioner. Such regulations shall require  that  a  physician  or  licensed
 psychologist  possess  specialized training or three years experience in
 treating intellectual disability. A record of such consultation shall be
 included in the person who is intellectually disabled's medical record.
   §  6.  Subdivision  4  of  section  2982  of the public health law, as
 amended by chapter 370 of the laws  of  1991,  is  amended  to  read  as
 follows:
   4.  Priority  over other surrogates. Health care decisions by an agent
 on a principal's behalf pursuant to this  article  shall  have  priority
 over  decisions by any other person, except as otherwise provided in the
 health care proxy or in subdivision [five] SIX of section  two  thousand
 nine hundred eighty-three of this article.
   §  7. Subdivision 2 of section 2984 of the public health law, as added
 by chapter 752 of the laws of 1990, is amended to read as follows:
   2. A health care provider shall comply with health care decisions made
 by an agent in good faith under a health care proxy to the  same  extent
 as  if  such  decisions  had  been made by the principal, subject to any
 limitations in the health care proxy and pursuant to the  provisions  of
 subdivision [five] SIX of section two thousand nine hundred eighty-three
 of this article.
   §  8.    Paragraph  (b) of subdivision 7 of section 2983 of the public
 health law, as amended by chapter 708 of  the  laws  of  2019  and  such
 subdivision as renumbered by section one of this act, is amended to read
 as follows:
   (b)  The  notice requirements set forth in subdivision [three] FOUR of
 this section shall not apply to the confirmation required by this subdi-
 vision.
   § 9. 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 made by section two of this act  shall  apply  to  the
 decisions  made  pursuant  to  health  care proxies created prior to the
 effective date of this act as well as those created thereafter.