S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7184--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 12, 2023
                                ___________
 
 Introduced by M. of A. PAULIN -- read once and referred to the Committee
   on Health -- recommitted to the Committee on Health in accordance with
   Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05270-04-4
              

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 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.
   §  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 OF THE PRINCIPAL, 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
 clinical  social  worker,  licensed  [or],  certified  [pursuant  to] OR
 AUTHORIZED UNDER the education law  acting  within  [his  or  her]  SUCH
 HEALTH OR SOCIAL SERVICES PRACTITIONER'S 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  hospi-
 tal  administrator,  an  attending  [physician]  PRACTITIONER, 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 transferred from a correctional facility.
   §  7.  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:
 A. 7184--A                          3
 
   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  THAT DETERMINATION IN THE PATIENT'S MEDICAL RECORD, the
 patient  shall have the authority to decide about life-sustaining treat-
 ment. [Such] THAT 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.
   § 8. 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 THE DILIGENT EFFORTS IN THE PATIENT'S MEDICAL RECORD.
   § 9. 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 PATIENT'S surrogate [list
 known to the hospital], or to the [parents or guardians] PARENT OR GUAR-
 DIAN 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  hospital's staff directly involved with patient care] ANY PERSON ON
 THE SURROGATE LIST WHO REQUESTS A COPY OF THE STATEMENT FROM THE  HOSPI-
 TAL. THE STATEMENT SHALL ALSO BE MADE AVAILABLE TO THE HOSPITAL CLINICAL
 STAFF.
   §  10. The commissioner of health shall revise the statement of rights
 that hospitals are required to post (known  as  the  Patient's  Bill  of
 Rights)  under  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.
   §  11.  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].
 A. 7184--A                          4
 
   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.
   §  12.  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.
   § 13. 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.
   § 14. 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.