S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5327
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               March 2, 2021
                                ___________
 
 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. 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
 nutrition and hydration are not reasonably known and cannot with reason-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00325-01-1

 S. 5327                             2
 
 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
 reason to believe that the patient has a history of  receiving  services

 S. 5327                             3
 
 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
 request, a more complete statement  of  their  rights  with  respect  to

 S. 5327                             4
 
 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
 ninety-four-ee  of  this  article, or for other actions taken reasonably
 and in good faith pursuant to this [section] ARTICLE.

 S. 5327                             5
 
   § 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.