S T A T E O F N E W Y O R K
________________________________________________________________________
2932
2023-2024 Regular Sessions
I N S E N A T E
January 25, 2023
___________
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 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.
LBD05258-01-3
S. 2932 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
S. 2932 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:
S. 2932 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
S. 2932 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.
