Text of NY A 6315 (2004)

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Bill No.: Summary Actions Floor Votes Memo Text A06315 Summary: BILL NOA06315A SAME ASNo same as SPONSORGottfried (MS) COSPNSRSchimminger, Lopez, Dinowitz, Tokasz, Brennan, Tonko, Gordon, Lavelle, Koon MLTSPNSRAbbate, Aubry, Bing, Clark, Cohen A, Cohen M, Cymbrowitz, Destito, DiNapoli, Englebright, Galef,Gantt, Gianaris, Grannis, Greene, Grodenchik, Hikind, Hoyt, Jacobs, John, Kaufman, Lafayette,Lifton, Magee, Mayersohn, McEneny, McLaughlin, Millman, Norman, Paulin, Pheffer, Pretlow, Sanders,Scarborough, Sidikman, Stringer, Sweeney, Tocci, Towns, Weinstein, Weisenberg, Wright Rpld S2961 subs 7, 10, 13 & 16, S2964 sub 4, S2965 sub 2 ô(a) subô (i), sub 4 ô(c), sub 5, S2966sub 2, S2967 sub 2 ô(c), S2977, S2978 sub 1, amd Pub Health L, generally Creates the family health care decision act; establishes procedures for family members, surrogates and others close to an incapacitated patient making health care decisions on behalf of patients unable to decide about treatment for themselves in accordance with special procedures, standards and safeguards; stipulates how "incapacity" is to be determined; lists who may act as a surrogate; provides guidelines for the surrogate; gets forth specific policies for DNR orders; requires hospitals and nursing homes to adopt written policies regarding decisions concerning life-sustaining treatment.Go to top A06315 Text: STATE OF NEW YORK ________________________________________________________________________ 6315--A 2003-2004 Regular Sessions IN ASSEMBLY March 4, 2003 ___________ Introduced by M. of A. GOTTFRIED, SCHIMMINGER, LOPEZ, DINOWITZ, TOKASZ, BRENNAN, TONKO, GORDON, LAVELLE, KOON -- Multi-Sponsored by -- M. of A. ABBATE, AUBRY, BING, CLARK, A. COHEN, M. COHEN, CYMBROWITZ, DESTI- TO, DiNAPOLI, ENGLEBRIGHT, GALEF, GANTT, GIANARIS, GRANNIS, GREENE, GRODENCHIK, HIKIND, HOYT, JACOBS, JOHN, KAUFMAN, LAFAYETTE, LIFTON, MAGEE, MAYERSOHN, McENENY, McLAUGHLIN, MILLMAN, NORMAN, PAULIN, PHEF- FER, PRETLOW, SANDERS, SCARBOROUGH, SIDIKMAN, STRINGER, SWEENEY, TOCCI, TOWNS, WEINSTEIN, WEISENBERG, WRIGHT -- 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 establishing procedures for making medical treatment decisions on behalf of persons who lack the capacity to decide about treatment for themselves and to repeal certain provisions of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. Under article 29-C of the public health 2 law, competent adults have a powerful way to control their medical 3 treatment even after they lose decision-making capacity, by appointing 4 someone they trust to decide on their behalf. This legislation fills a 5 gap that remains in New York law. It adds, inter alia, a new article 6 29-CC to the public health law, which establishes a decision-making 7 process whereby a surrogate is selected and empowered to make health 8 care decisions for patients who lack capacity to make their own health 9 care decisions and who have not otherwise appointed an agent to make 10 health care decisions pursuant to article 29-C of the public health law 11 or provided clear and convincing evidence of their treatment wishes. 12 The legislature does not intend to encourage or discourage any partic- 13 ular health care decision or treatment, or to create or expand a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03468-03-4 A. 6315--A 2 1 substantive right of competent adults to decide about treatment for 2 themselves. Further, the legislature does not intend to authorize a 3 surrogate to deny to the patient personal services that every patient 4 would generally receive, such as appropriate food, water, bed rest, room 5 temperature and hygiene. This legislation establishes a procedure to 6 facilitate responsible decision-making by surrogates on behalf of 7 patients who do not have capacity to make their own health care deci- 8 sions. This legislation further establishes a state council on hospice 9 care to promote hospice care where it is an appropriate treatment deci- 10 sion as part of a patient and family-oriented, comprehensive program of 11 service for the terminally ill and to review the appropriate roles for 12 hospice programs in the implementation of article 29-C and the new arti- 13 cle 29-CC of the public health law. 14 This legislation affirms existing laws and policies that limit indi- 15 vidual conduct of patients with or without capacity, including those 16 laws and policies against homicide, suicide, assisted suicide and mercy 17 killing. 18 § 2. The public health law is amended by adding two new articles 29-CC 19 and 29-CCC to read as follows: 20 ARTICLE 29-CC 21 FAMILY HEALTH CARE DECISIONS ACT 22 Section 2994-a. Definitions. 23 2994-b. Priority of decision by health care agent. 24 2994-c. Determination of incapacity. 25 2994-d. Health care decisions for adult patients by surrogates. 26 2994-e. Decisions about life-sustaining treatment for minor 27 patients. 28 2994-f. Obligations of attending physician. 29 2994-g. Health care decisions for adult patients without surro- 30 gates. 31 2994-h. Decisions for patients transferred from a mental hygiene 32 facility. 33 2994-i. Specific policies for orders not to resuscitate. 34 2994-j. Revocation of consent. 35 2994-k. Implementation and review of decisions. 36 2994-l. Interinstitutional transfers. 37 2994-m. Ethics review committees. 38 2994-n. Conscience objections. 39 2994-o. Immunity. 40 2994-p. Liability for health care costs. 41 2994-q. Effect on other rights. 42 2994-r. Special proceeding authorized; court orders; health care 43 guardian for minor patient. 44 2994-s. Remedy. 45 2994-t. Regulations. 46 2994-u. Rights to be publicized. 47 § 2994-a. Definitions. The following words or phrases, used in this 48 article, shall have the following meanings, unless the context otherwise 49 requires: 50 1. "Adult" means any person who is eighteen years of age or older or 51 has married. 52 2. "Attending physician" means a physician, selected by or assigned to 53 a patient, who has primary responsibility for the treatment and care of 54 the patient. Where more than one physician shares such responsibility, 55 or where a physician is acting on the attending physician's behalf, any A. 6315--A 3 1 such physician may act as an attending physician pursuant to this arti- 2 cle. 3 3. "Ethics review committee" means the interdisciplinary hospital 4 committee established in accordance with the requirements of section 5 twenty-nine hundred ninety-four-m of this article. 6 4. "Cardiopulmonary resuscitation" means measures, as specified in 7 regulations promulgated by the commissioner, to restore cardiac function 8 or to support ventilation in the event of a cardiac or respiratory 9 arrest. Cardiopulmonary resuscitation shall not include measures to 10 improved ventilation and cardiac function in the absence of an arrest. 11 5. "Close friend" means any person, eighteen years of age or older, 12 who presents a signed, written statement to an attending physician stat- 13 ing that he or she is a close friend of the patient and that he or she 14 has maintained such regular contact with the patient as to be familiar 15 with the patient's activities, health, and religious or moral beliefs, 16 and stating the facts and circumstances that demonstrate such familiar- 17 ity. 18 6. "Close relative" means any person, eighteen years of age or older, 19 who presents a signed, written statement to an attending physician stat- 20 ing that he or she is a relative of the patient and that he or she has 21 maintained such regular contact with the patient as to be familiar with 22 the patient's activities, health, and religious or moral beliefs, and 23 stating the facts and circumstances that demonstrate such familiarity. 24 7. "Decision-making capacity" means the ability to understand and 25 appreciate the nature and consequences of proposed health care, includ- 26 ing the benefits and risks of, and alternatives to, any such proposed 27 health care, and to reach an informed decision. 28 8. "Developmental disability" means a developmental disability as 29 defined in subdivision twenty-two of section 1.03 of the mental hygiene 30 law. 31 9. "Emancipated minor patient" means a minor patient who is the parent 32 of a child, or who is sixteen years of age or older and living independ- 33 ently from his or her parents or guardian. 34 10. "General hospital" means a general hospital as defined in subdivi- 35 sion ten of section twenty-eight hundred one of this chapter. 36 11. "Guardian of a minor" or "guardian" means a health care guardian 37 or a legal guardian of the person of a minor. 38 12. "Health care" means any treatment, service, or procedure to diag- 39 nose or treat an individual's physical or mental condition. 40 13. "Health care agent" means a health care agent designated by an 41 adult pursuant to article twenty-nine-C of this chapter. 42 14. "Health care decision" means any decision to consent or refuse to 43 consent to health care. 44 15. "Health care guardian" means an individual appointed by a court, 45 pursuant to subdivision four of section twenty-nine hundred 46 ninety-four-r of this article, as the guardian of a minor patient solely 47 for the purpose of deciding about life-sustaining treatment pursuant to 48 this article. 49 16. "Health care provider" means an individual or facility licensed, 50 certified, or otherwise authorized or permitted by law to administer 51 health care in the ordinary course of business or professional practice. 52 17. "Health or social service practitioner" means a registered profes- 53 sional nurse, nurse practitioner, physician, psychologist or certified 54 social worker licensed or certified pursuant to the education law. 55 18. "Hospital" means a general hospital as defined in subdivision ten 56 of section twenty-eight hundred one of this chapter, and a residential A. 6315--A 4 1 health care facility as defined in subdivision three of section twenty- 2 eight hundred one of this chapter, but excluding a ward, wing, unit or 3 other part of a general hospital that provides mental health services to 4 mentally ill persons pursuant to an operating certificate issued by the 5 commissioner of mental health other than medical-psychiatric units 6 jointly identified by the commissioner of health and the commissioner of 7 mental health. 8 19. "Life-sustaining treatment" means any medical treatment or proce- 9 dure without which the patient will die within a relatively short time, 10 as determined by an attending physician to a reasonable degree of 11 medical certainty. 12 20. "Major medical treatment" means any treatment, service or proce- 13 dure to diagnose or treat an individual's physical or mental condition: 14 (a) where a general anesthetic is used; or 15 (b) which involves any significant risk; or 16 (c) which involves any significant invasion of bodily integrity 17 requiring an incision, producing substantial pain, discomfort, debili- 18 tation or having a significant recovery period; or 19 (d) which involves the use of physical restraints, as specified in 20 regulations promulgated by the commissioner, except in an emergency; or 21 (e) which involves the use of psychoactive medications, except when 22 provided as part of post-operative care or in response to an acute 23 illness and treatment is reasonably expected to be administered over a 24 period of forty-eight hours or less, or when provided in an emergency. 25 For purposes of this subdivision, the term "psychoactive medications" 26 shall not include anti-depressant medications. 27 21. "Mental hygiene facility" means a residential facility operated or 28 licensed by the office of mental health or the office of mental retarda- 29 tion and developmental disabilities. 30 22. "Mental illness" means a mental illness as defined in subdivision 31 twenty of section 1.03 of the mental hygiene law, provided, however, 32 that mental illness shall not include dementia, such as Alzheimer's 33 disease, or other disorders related to dementia. 34 23. "Minor" means any person who is not an adult. 35 24. "Order not to resuscitate" means an order not to attempt cardiop- 36 ulmonary resuscitation in the event a patient suffers cardiac or respir- 37 atory arrest. 38 25. "Parent", for the purpose of a health care decision about a minor 39 patient, means a parent who has custody of, or who has maintained 40 substantial and continuous contact with, the minor patient. 41 26. "Patient" means a person admitted to a hospital. 42 27. "Person connected with the case" means the patient, any person on 43 the surrogate list, a parent or guardian of a minor patient, the hospi- 44 tal administrator, an attending physician, any other health care profes- 45 sional who is or has been directly involved in the patient's care, and 46 any duly authorized state agency, including the facility director or 47 regional director for a patient transferred from a mental hygiene facil- 48 ity and the facility director for a patient transferred from a correc- 49 tional facility. 50 28. "Reasonably available" means that a person to be contacted can be 51 contacted with diligent efforts by an attending physician, another 52 person acting on behalf of an attending physician, or the hospital. 53 29. "Residential health care facility" means a residential health care 54 facility as defined in subdivision three of section twenty-eight hundred 55 one of this chapter. A. 6315--A 5 1 30. "Routine medical treatment" means any treatment, service, or 2 procedure to diagnose or treat an individual's physical or mental condi- 3 tion, such as the administration of medication, the extraction of bodily 4 fluids for analysis, or dental care performed with a local anesthetic, 5 for which health care providers ordinarily do not seek specific consent 6 from the patient or authorized representative. It shall not include the 7 long-term provision of treatment such as ventilator support or a naso- 8 gastric tube but shall include such treatment when provided as part of 9 post-operative care or in response to an acute illness and recovery is 10 reasonably expected within one month or less. 11 31. "Surrogate" means the person selected to make a health care deci- 12 sion on behalf of a patient pursuant to section twenty-nine hundred 13 ninety-four-d of this article. 14 32. "Surrogate list" means the list set forth in subdivision one of 15 section twenty-nine hundred ninety-four-d of this article. 16 33. "Domestic partner" means a person who, with respect to another 17 person: 18 (a) is formally a party in a domestic partnership or similar relation- 19 ship, entered into pursuant to the laws of the United States or of any 20 state, local or foreign jurisdiction; or 21 (b) is formally recognized as a beneficiary or covered person under 22 the other person's employment benefits or health insurance; or 23 (c) is dependent or mutually interdependent on the other person for 24 support, as evidenced by the totality of the circumstances indicating a 25 mutual intent to be domestic partners including, but not limited to: 26 common ownership or joint leasing of real or personal property; common 27 householding, shared income or shared expenses; children in common; 28 signs of intent to marry or become domestic partners under paragraph (a) 29 or (b) of this subdivision; or the length of the personal relationship 30 of the persons; provided that each party to a domestic partnership under 31 this paragraph must be at least eighteen years of age. 32 Each party to a domestic partnership shall be considered to be the 33 domestic partner of the other party. "Domestic partner" shall not 34 include a person who is related to the other person by blood in a manner 35 that would bar marriage to the other person in New York state. 36 § 2994-b. Priority of decision by health care agent. A health care 37 decision by a health care agent on a patient's behalf is governed by 38 article twenty-nine-C of this chapter and shall have priority over deci- 39 sions by any other person except the patient or as otherwise provided in 40 the health care proxy. Health care providers shall make reasonable 41 efforts to determine whether the patient has appointed a health care 42 agent and to contact the agent before relying on a decision by a surro- 43 gate under this article. 44 § 2994-c. Determination of incapacity. 1. Presumption of capacity. For 45 purposes of this article, every adult shall be presumed to have deci- 46 sion-making capacity unless determined otherwise pursuant to this 47 section or pursuant to court order, or unless a guardian is authorized 48 to decide about health care for the adult pursuant to article eighty-one 49 of the mental hygiene law. For purposes of this article, the appointment 50 of a guardian pursuant to article seventeen-a of the surrogate's court 51 procedure act shall not create any presumption regarding the patient's 52 decision-making capacity. 53 2. Determination by attending physician. A determination that an adult 54 patient lacks decision-making capacity, as well as an assessment of the 55 cause and extent of the patient's incapacity and the likelihood that the A. 6315--A 6 1 patient will regain decision-making capacity, shall be made by an 2 attending physician to a reasonable degree of certainty. 3 3. Concurring opinion. (a) In a residential health care facility, a 4 health or social services practitioner must concur in the determination 5 that an adult patient lacks decision-making capacity. In a general 6 hospital, a second opinion of incapacity by a health or social services 7 practitioner shall be required if the surrogate's decision concerns the 8 withdrawal or withholding of life-sustaining treatment. 9 (b) If an attending physician determines that a patient lacks deci- 10 sion-making capacity because of mental illness or developmental disabil- 11 ity, the attending physician who makes the determination must have, or 12 must consult with a health or social services practitioner who has 13 specialized training or experience in diagnosing or treating mental 14 illness or developmental disabilities of the same or similar nature. 15 (c) Hospitals shall adopt written policies identifying the training 16 and credentials of health or social services practitioners qualified to 17 provide a concurring opinion of incapacity. 18 4. Informing the patient and surrogate. Notice of a determination that 19 the surrogate will make health care decisions because the adult patient 20 has been determined to lack decision-making capacity shall promptly be 21 given: 22 (a) to the patient, where there is any indication of the patient's 23 ability to comprehend the information; and 24 (b) to at least one person on the surrogate list highest in order of 25 priority listed when persons in prior classes are not reasonably avail- 26 able pursuant to subdivision one of section twenty-nine hundred ninety- 27 four-d of this article. 28 5. Limited purpose of determination. A determination made pursuant to 29 this section that an adult patient lacks decision-making capacity shall 30 not be construed as a finding that the patient lacks capacity for any 31 other purpose. 32 6. Priority of patient's decision. Notwithstanding a determination 33 pursuant to this section that an adult patient lacks decision-making 34 capacity, if the patient objects to the determination of incapacity, or 35 to the choice of a surrogate or to a health care decision made by a 36 surrogate or made pursuant to section twenty-nine hundred ninety-four-g 37 of this article, the patient's objection or decision shall prevail 38 unless a court of competent jurisdiction has determined that the patient 39 lacks decision-making capacity or the patient is or has been adjudged 40 incompetent for all purposes. 41 7. Confirmation of lack of decision-making capacity. An attending 42 physician shall confirm the adult patient's continued lack of decision- 43 making capacity before complying with health care decisions made pursu- 44 ant to this article, other than those decisions made at or about the 45 time of the initial determination. A concurring opinion of the patient's 46 continued lack of decision-making capacity shall be required if the 47 subsequent health care decision concerns the withholding or withdrawal 48 of life-sustaining treatment. Health care providers shall not be 49 required to inform the patient or surrogate of the confirmation. 50 § 2994-d. Health care decisions for adult patients by surrogates. 1. 51 Identifying the surrogate. One person from the following list, chosen 52 from the class highest in priority when persons in prior classes are not 53 reasonably available, willing, and competent to act, shall be the surro- 54 gate for an adult patient without decision-making capacity: A. 6315--A 7 1 (a) A guardian authorized to decide about health care pursuant to 2 article eighty-one of the mental hygiene law or a guardian appointed 3 under article seventeen-A of the surrogate's court procedure act; 4 (b) An individual, eighteen years of age or older, who is a member of 5 any one of the classes set forth in this subdivision and who is desig- 6 nated by the person who otherwise would be chosen to act as surrogate 7 based on the priority list established in this subdivision provided that 8 no person in a class higher in priority than the person designated 9 objects; 10 (c) The spouse, if not legally separated from the patient, or the 11 domestic partner; 12 (d) A son or daughter eighteen years of age or older; 13 (e) A parent; 14 (f) A brother or sister eighteen years of age or older; 15 (g) A close friend or close relative eighteen years of age or older. 16 2. Restrictions on who may be a surrogate. An operator, administrator, 17 or employee of a hospital, a physician who has privileges at the hospi- 18 tal or a health care provider under contract with the hospital may not 19 serve as the surrogate for any adult who is a patient of such hospital, 20 unless such individual is related to the patient by blood, marriage, or 21 adoption, or is a close friend of the patient whose friendship with the 22 patient preceded the patient's admission to the facility. If a physician 23 serves as surrogate, the physician shall not act as the patient's 24 attending physician after his or her authority as surrogate begins. 25 3. Authority and duties of surrogate. (a) Scope of surrogate's author- 26 ity. 27 (i) Subject to the standards and limitations of this article, the 28 surrogate shall have the authority to make any and all health care deci- 29 sions on the adult patient's behalf that the patient could make. 30 (ii) Nothing in this article shall obligate health care providers to 31 seek the consent of a surrogate if an adult patient has already made a 32 decision about the proposed health care, expressed orally or in writing, 33 including a decision about withdrawing or withholding life-sustaining 34 treatment. If an attending physician relies on the patient's prior deci- 35 sion, the physician shall record the prior decision in the patient's 36 record and make reasonable efforts to notify the surrogate prior to 37 implementing the decision. 38 (b) Commencement of surrogate's authority. The surrogate's authority 39 shall commence upon a determination, made pursuant to section twenty- 40 nine hundred ninety-four-c of this article, that the adult patient lacks 41 decision-making capacity. In the event an attending physician determines 42 that the patient has regained decision-making capacity, the authority of 43 the surrogate shall cease. 44 (c) Right and duty to be informed. Notwithstanding any law to the 45 contrary, the surrogate shall have the right to receive medical informa- 46 tion and medical and clinical records necessary to make informed deci- 47 sions about the patient's health care. Health care providers shall 48 provide and the surrogate shall seek information necessary to make an 49 informed decision, including information about the patient's diagnosis, 50 prognosis, the nature and consequences of proposed health care, and the 51 benefits and risks of and alternative to proposed health care. 52 4. Decision-making standards. (a) General standards. The surrogate 53 shall make health care decisions: 54 (i) in accordance with the patient's wishes, including the patient's 55 religious and moral beliefs; or A. 6315--A 8 1 (ii) if the patient's wishes are not reasonably known and cannot with 2 reasonable diligence be ascertained, in accordance with the patient's 3 best interests. 4 (b) An assessment of the patient's best interests shall include: 5 consideration of the dignity and uniqueness of every person; the possi- 6 bility and extent of preserving the patient's life; the preservation, 7 improvement or restoration of the patient's health or functioning; the 8 relief of the patient's suffering; and any medical condition and such 9 other concerns and values as a reasonable person in the patient's 10 circumstances would wish to consider. 11 (c) In all cases, the surrogate's assessment of the patient's wishes 12 and best interests shall be patient-centered; health care decisions 13 shall be made on an individualized basis for each patient, and shall be 14 consistent with the values of the patient, including the patient's reli- 15 gious and moral beliefs, to the extent reasonably possible, as well as 16 the likelihood that the patient will regain decision-making capacity. 17 5. Decisions to withhold or withdraw life-sustaining treatment. In 18 addition to the standards set forth in subdivision four of this section, 19 decisions by surrogates to withhold or withdraw life-sustaining treat- 20 ment shall be authorized only if the following conditions are satisfied, 21 as applicable: 22 (a)(i) Treatment would be an excessive burden to the patient and an 23 attending physician determines, with the concurrence of another physi- 24 cian, that, to a reasonable degree of medical certainty and in accord 25 with accepted medical standards, (A) the patient has an illness or inju- 26 ry which can be expected to cause death within six months, whether or 27 not treatment is provided; or (B) the patient is permanently uncon- 28 scious; or 29 (ii) The provision of treatment would involve such pain, suffering or 30 other burden that it would reasonably be deemed inhumane or excessively 31 burdensome under the circumstances and the patient has an irreversible 32 or incurable condition, as determined by an attending physician with the 33 concurrence of another physician to a reasonable degree of medical 34 certainty and in accord with accepted medical standards. 35 (b) In a residential health care facility, a surrogate shall have the 36 authority to refuse life-sustaining treatment under subparagraph (ii) of 37 paragraph (a) of this subdivision only if the ethics review committee, 38 including at least one physician who is not directly responsible for the 39 patient's care, or a court of competent jurisdiction, reviews the deci- 40 sion and determines that it meets the standards set forth in this arti- 41 cle. This requirement shall not apply to a decision to withhold cardiop- 42 ulmonary resuscitation. 43 (c) In a general hospital, as defined in subdivision ten of section 44 twenty-eight hundred one of this chapter, if the attending physician 45 objects to a surrogate's decision, under subparagraph (ii) of paragraph 46 (a) of this subdivision, to forgo nutrition and hydration provided by 47 means of a medical intervention the decision shall not be implemented 48 until the ethics review committee, including at least one physician who 49 is not directly responsible for the patient's care, or a court of compe- 50 tent jurisdiction, reviews the decision and determines that it meets the 51 standards set forth in this subdivision and subdivision four of this 52 section. 53 (d) Providing nutrition and hydration orally, without reliance on a 54 medical intervention, is not health care under this article and is not 55 subject to this article. A. 6315--A 9 1 (e) Expression of decisions. The surrogate shall express a decision to 2 withdraw or withhold life-sustaining treatment either orally or in writ- 3 ing. 4 § 2994-e. Decisions about life-sustaining treatment for minor 5 patients. 1. Authority of parent or guardian. The parent or guardian of 6 a minor patient shall have the authority to decide to withhold or with- 7 draw life-sustaining treatment, subject to the provisions of this 8 section and the standards for surrogate decisions for adults. 9 2. Decision-making standards and procedures for minor patient. (a) An 10 attending physician, in consultation with a minor's parent or guardian, 11 shall determine whether a minor patient has decision-making capacity for 12 a decision to withhold or withdraw life-sustaining treatment. If the 13 minor has such capacity, the minor must consent to withhold or withdraw 14 life-sustaining treatment for decisions pursuant to this section. 15 (b) Where an attending physician has reason to believe that a parent 16 of a minor patient, including a noncustodial parent, has not been 17 informed of a decision to withdraw or withhold life-sustaining treat- 18 ment, an attending physician or someone acting on his or her behalf, 19 shall make reasonable efforts to determine if the uninformed parent has 20 maintained substantial and continuous contact with the minor and, if so, 21 shall make diligent efforts to notify that parent prior to implementing 22 the decision. 23 3. Decision-making standards and procedures for emancipated minor 24 patient. (a) If an attending physician determines that a patient is an 25 emancipated minor patient with decision-making capacity, the patient 26 shall have the authority to decide about life-sustaining treatment. Such 27 authority shall include a decision to withhold or withdraw life-sustain- 28 ing treatment if an attending physician and the ethics review committee 29 determine that the decision accords with the standards for surrogate 30 decisions for adults, and the ethics review committee approves the deci- 31 sion. 32 (b) If the hospital can readily ascertain the identity of the parents 33 or guardian of an emancipated minor patient, the hospital shall notify 34 such persons prior to withholding or withdrawing life-sustaining treat- 35 ment pursuant to this subdivision. 36 § 2994-f. Obligations of attending physician. 1. An attending physi- 37 cian provided with or informed of a decision to withdraw or withhold 38 life-sustaining treatment made pursuant to the standards of this article 39 shall record the decision in the patient's chart, review the medical 40 basis for the decision, and shall either: (a) implement the decision, or 41 (b) promptly make his or her objection to the decision and the reasons 42 for the objection known to the decision-maker, and either make all 43 reasonable efforts to arrange for the transfer of the patient to another 44 physician, if necessary, or promptly refer the matter to the ethics 45 review committee. 46 2. If an attending physician has actual notice of the following 47 objections or disagreements, he or she shall promptly refer the matter 48 to the ethics review committee if the objection or disagreement cannot 49 otherwise be resolved: 50 (a) Any person on the surrogate list objects to a surrogate's deci- 51 sions; or 52 (b) A parent or guardian of a minor patient objects to the decision by 53 another parent or guardian of the minor; or 54 (c) A minor patient refuses life-sustaining treatment, and the minor's 55 parent or guardian wishes the treatment to be provided, or the minor A. 6315--A 10 1 patient objects to an attending physician's determination about deci- 2 sion-making capacity or recommendation about life-sustaining treatment. 3 3. Notwithstanding the provisions of any other subdivision of this 4 section, if a surrogate directs the provision of life-sustaining treat- 5 ment, the denial of which is reasonable medical judgment would be likely 6 to result in the death of the patient, a hospital or individual health 7 care provider that does not wish to provide such treatment shall none- 8 theless comply with the patient's decision pending either transfer of 9 the patient to a willing hospital or individual health care provider, or 10 judicial review. 11 § 2994-g. Health care decisions for adult patients without surrogates. 12 1. Identifying adult patients without surrogates. Within a reasonable 13 time after admission as an inpatient to the hospital of each adult 14 patient, the hospital shall make reasonable efforts to determine if the 15 patient has appointed a health care agent or if at least one individual 16 is available to serve as the patient's surrogate in the event the 17 patient loses decision-making capacity. If no such potential surrogate 18 is identified, the hospital shall identify, to the extent reasonably 19 possible, the patient's wishes, preferences, or values about pending 20 health care decisions, and shall make a written record of its findings. 21 2. Decision-making standards. Any health care decision made pursuant 22 to this section shall be made in accordance with the standards for 23 surrogate decisions for adults set forth in section twenty-nine hundred 24 ninety-four-d of this article and shall not be based on the financial 25 interests of the hospital or any other health care provider. 26 3. Routine medical treatment. If no surrogate is reasonably available, 27 willing, and competent to act, an attending physician shall be author- 28 ized to decide about routine medical treatment for an adult patient who 29 has been determined to lack decision-making capacity pursuant to section 30 twenty-nine hundred ninety-four-c of this article. Nothing in this 31 subdivision shall require health care providers to obtain specific 32 consent for treatment where specific consent is not otherwise required 33 by law. 34 4. Major medical treatment. If no surrogate is reasonably available, 35 willing, and competent to act, a decision to provide major medical 36 treatment, made in accordance with the following requirements, shall be 37 authorized for an adult patient who has been determined to lack deci- 38 sion-making capacity pursuant to section twenty-nine hundred ninety- 39 four-c of this article. 40 (a) An attending physician shall make a recommendation in consultation 41 with hospital staff directly responsible for the patient's care. 42 (b) In a general hospital, at least one other physician designated by 43 the hospital must concur in the recommendation. 44 (c) In a residential health care facility, the medical director of the 45 facility, or a physician designated by the medical director, must concur 46 in the recommendation; provided that if the medical director is the 47 patient's attending physician, a different physician designated by the 48 residential health care facility must concur in the recommendation. A 49 certified social worker may provide a second opinion for decisions about 50 physical restraints made pursuant to this subdivision. 51 5. Decisions to withhold or withdraw life-sustaining treatment. If no 52 surrogate is reasonably available, willing, and competent to act, a 53 court of competent jurisdiction may make a decision to withhold or with- 54 draw life-sustaining treatment for an adult patient who has been deter- 55 mined to lack decision-making capacity pursuant to section twenty-nine 56 hundred ninety-four-c of this article if the court finds that the deci- A. 6315--A 11 1 sion accords with standards for decisions for adults set forth in subdi- 2 visions four and five of section twenty-nine hundred ninety-four-d of 3 this article. 4 6. Health care without medical benefit. If no surrogate is reasonably 5 available, willing and competent to act, and the attending physician, 6 with concurrence of a second physician designated by the hospital, 7 determines to a reasonable degree of medical certainty that: 8 (a) life-sustaining treatment offers the patient no medical benefit 9 because the patient will die imminently, even if the treatment is 10 provided; and 11 (b) the provision of life-sustaining treatment would violate accepted 12 medical standards, such treatment may be withdrawn or withheld from an 13 adult patient who has been determined to lack decision-making capacity 14 pursuant to section twenty-nine hundred ninety-four-c of this article, 15 without judicial approval. This subdivision shall not apply to any 16 treatment necessary to alleviate pain or discomfort. 17 7. Physician objection. If a physician consulted for concurring opin- 18 ion objects to an attending physician's recommendation or determination 19 made pursuant to this section, or a member of the hospital staff direct- 20 ly responsible for the patient's care objects to an attending physi- 21 cian's recommendation about major medical treatment or treatment without 22 medical benefit, the matter shall be referred to the ethics review 23 committee if it cannot be otherwise resolved. 24 § 2994-h. Decisions for patients transferred from a mental hygiene 25 facility. 1. If a patient is transferred from a mental hygiene facility 26 to a hospital, other than a residential care facility, the hospital 27 shall notify the facility director or the mental health regional direc- 28 tor when: 29 (a) a decision is made, pursuant to subdivision four of section twen- 30 ty-nine hundred ninety-four-g of this article, regarding major medical 31 treatment for an adult without a surrogate; or 32 (b) a surrogate or a parent of a minor child consents to withhold or 33 withdraw life-sustaining treatment for the patient pursuant to this 34 article. A mental hygiene facility director who receives notices pursu- 35 ant to this subdivision shall promptly convey such notices to the mental 36 hygiene legal service. 37 2. Nothing in this article shall affect or diminish the authority of a 38 surrogate decision-making panel convened to decide about major medical 39 treatment pursuant to article eighty of the mental hygiene law. Health 40 care providers may seek authorization for major medical treatment for a 41 patient transferred from a mental hygiene facility who has no surrogate 42 by commencing the process set forth in section twenty-nine hundred nine- 43 ty-four-g of this article, or by commencing a proceeding pursuant to 44 article eighty of the mental hygiene law in any county where such facil- 45 ity is operating. If a proceeding pursuant to article eighty of the 46 mental hygiene law is commenced, the decision and all subsequent deci- 47 sions related to the major medical treatment proposed in the initial 48 article eighty proceeding shall be made pursuant to such article, unless 49 the decision must be expedited to meet the patient's medical needs. 50 § 2994-i. Specific policies for orders not to resuscitate. 1. An order 51 not to resuscitate shall be written in the patient's record. Consent to 52 an order not to resuscitate shall not constitute consent to withhold or 53 withdraw treatment other than cardiopulmonary resuscitation. 54 2. An attending physician may rely on the surrogate's consent for an 55 order not to resuscitate for an adult with decision-making capacity 56 pursuant to this article provided that: A. 6315--A 12 1 (a) The attending physician determines, to a reasonable degree of 2 medical certainty, that the patient would suffer immediate and severe 3 injury from a discussion of cardiopulmonary resuscitation; 4 (b) Another physician concurs that the patient would suffer such inju- 5 ry from a discussion of cardiopulmonary resuscitation; and 6 (c) The attending physician ascertains the wishes of the patient to 7 the extent possible without subjecting the patient to a risk of immedi- 8 ate and severe injury. Where the provisions of this subdivision have 9 been invoked, the attending physician shall reassess the patient's risk 10 of injury from a discussion of cardiopulmonary resuscitation and shall 11 consult the patient regarding resuscitation as soon as the medical basis 12 for not consulting the patient no longer exists. 13 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or 14 guardian of a minor patient may at any time revoke his or her consent to 15 withhold or withdraw life-sustaining treatment by informing a physician 16 or member of the nursing staff of the revocation. 17 2. Any physician informed of a revocation of consent made pursuant to 18 this section shall immediately: 19 (a) record the revocation in the patient's record; 20 (b) cancel any orders or plans of care implementing the decision to 21 withhold or withdraw treatment; and 22 (c) notify the hospital staff directly responsible for the patient's 23 care of the revocation and any cancellations. 24 3. Any member of the nursing staff informed of a revocation made 25 pursuant to this section shall immediately notify a physician of the 26 revocation. 27 § 2994-k. Implementation and review of decisions. 1. Hospitals shall 28 adopt written policies requiring implementation and regular review of 29 decisions to withhold or withdraw life-sustaining treatment in accord- 30 ance with accepted medical standards. Hospitals shall also develop poli- 31 cies in accord with accepted medical standards regarding documentation 32 of clinical determinations and decisions by surrogates and health care 33 providers pursuant to this article. 34 2. If a decision to withhold or withdraw life-sustaining treatment has 35 been made pursuant to this article, and an attending physician deter- 36 mines at any time that the decision is no longer appropriate or author- 37 ized because the patient has regained decision-making capacity or 38 because the patient's condition has otherwise improved, the physician 39 shall immediately: 40 (a) include such determination in the patient's record; 41 (b) cancel any orders or plans of care implementing the decision to 42 withhold or withdraw life-sustaining treatment; 43 (c) notify the person who made the decision to withhold or withdraw 44 treatment; and 45 (d) notify the hospital staff directly responsible for the patient's 46 care of any cancelled orders or plans of care. 47 § 2994-l. Interinstitutional transfers. If a patient with an order or 48 plan of care to withhold or withdraw life-sustaining treatment is trans- 49 ferred from a mental hygiene facility or from a hospital to a different 50 hospital, any such order or plan shall remain effective until an attend- 51 ing physician first examines the transferred patient, whereupon an 52 attending physician must either: 53 1. Issue appropriate orders to continue the prior order or plan. Such 54 orders may be issued without obtaining another consent to withhold 55 or withdraw life-sustaining treatment pursuant to this article; or A. 6315--A 13 1 2. Cancel such order or plan. Before canceling the order or plan the 2 attending physician shall make reasonable efforts to notify the person 3 who made the decision to withhold or withdraw treatment and the hospital 4 staff directly responsible for the patient's care of any such cancella- 5 tion. If such notice cannot reasonably be made prior to canceling the 6 order or plan, the attending physician shall make such notice as soon as 7 reasonably practicable after cancellation. 8 § 2994-m. Ethics review committees. 1. Establishment of an ethics 9 review committee, written policy. Each hospital shall establish at least 10 one ethics review committee or participate in an ethics review committee 11 that serves more than one hospital, and shall adopt a written policy 12 governing committee functions, composition, and procedure, in accordance 13 with the requirements of this section. A hospital may designate an 14 existing committee, or subcommittee thereof, to carry out the functions 15 of the ethics review committee provided the requirements of this section 16 are satisfied. 17 2. Functions of the ethics review committee. (a) The ethics review 18 committee shall consider any health care matter presented to it by a 19 person connected with the case. 20 (b) The ethics review committee response to a health care matter may 21 include: 22 (i) providing advice on the ethical aspects of proposed health care; 23 (ii) making a recommendation about proposed health care; or 24 (iii) providing assistance in resolving disputes about proposed health 25 care. 26 (c) Recommendations and advice by the ethics review committee shall be 27 advisory and nonbinding, except as specified in subdivision five of 28 section twenty-nine hundred ninety-four-d of this article and subdivi- 29 sion three of section twenty-nine hundred ninety-four-e of this article. 30 3. Committee membership. In a residential health care facility at 31 least three committee members must be health care professionals, at 32 least one of whom must be a registered nurse and one of whom must be a 33 physician; and at least two committee members must be members of the 34 residents' council of the facility (or of another facility that partic- 35 ipates in the committee) or be a person not affiliated with the facility 36 who is a family member of a current or former resident at the same or 37 another long-term care facility or a person who has expertise in or a 38 demonstrated commitment to patient rights or to the care and treatment 39 of the elderly or nursing home residents through professional or commu- 40 nity activities, other than activities performed as a health care 41 provider. 42 4. Procedures for ethics review committee. These procedures are 43 required only when the ethics review committee is convened to review a 44 decision by a surrogate to forgo life-sustaining treatment for a patient 45 in a residential health care facility pursuant to paragraph (b) of 46 subdivision five of section twenty-nine hundred ninety-four-d of this 47 article, for a patient in a general hospital pursuant to paragraph (c) 48 of subdivision five of section twenty-nine hundred ninety-four-d of this 49 article, and for emancipated minor patients pursuant to subdivision 50 three of section twenty-nine hundred ninety-four-e of this article, or 51 when a person connected with the case requests the ethics review commit- 52 tee to provide assistance in resolving a dispute about proposed care. 53 Nothing in this section shall bar health care providers from first 54 striving to resolve disputes through less formal means, including the 55 informal solicitation of ethical advice from any source. A. 6315--A 14 1 (a) A person connected with the case may not participate as an ethics 2 review committee member in the consideration of that case. 3 (b) The ethics review committee shall respond promptly, as required by 4 the circumstances, to any request for assistance in resolving a dispute 5 or consideration of a decision to forgo life-sustaining treatment pursu- 6 ant to paragraphs (b) and (c) of subdivision five of section twenty-nine 7 hundred ninety-four-d of this article made by a person connected with 8 the case. The committee shall permit persons connected with the case to 9 present their views to the committee, and to have the option of being 10 accompanied by an advisor when participating in a committee meeting. 11 (c) The ethics review committee shall promptly provide the patient, 12 where there is any indication of the patient's ability to comprehend the 13 information, the surrogate, other persons on the surrogate list directly 14 involved in the decision or dispute regarding the patient's care, any 15 parent or guardian of a minor patient directly involved in the decision 16 or dispute regarding the minor patient's care, an attending physician, 17 the hospital, and other persons the committee deems appropriate, with 18 the following: 19 (i) notice of any pending case consideration concerning the patient, 20 including, for patients, persons on the surrogate list, parents and 21 guardians, information about the review committee's procedures, composi- 22 tion and function; and 23 (ii) the committee's response to the case, including a written state- 24 ment of the reasons for approving or disapproving the withholding or 25 withdrawal of life-sustaining treatment for decisions considered pursu- 26 ant to subparagraph (ii) of paragraph (a) of subdivision five of section 27 twenty-nine hundred ninety-four-d of this article. 28 (d) Following ethics review committee consideration of a case concern- 29 ing the withdrawal or withholding of life-sustaining treatment, treat- 30 ment shall not be withdrawn or withheld until the persons identified in 31 paragraph (c) of this subdivision have been informed of the committee's 32 response to the case. 33 5. Access to medical records and information; patient confidentiality. 34 Ethics review committee members and consultants shall have access to 35 medical information and medical and clinical records necessary to 36 perform their function under this article. Any such information or 37 records disclosed to committee members, consultants, or others shall be 38 kept confidential except to the extent necessary to accomplish the 39 purposes of this article or as otherwise provided by law. 40 6. Ethics review committee confidentiality. Notwithstanding any other 41 provisions of law, the proceedings and records of an ethics review 42 committee shall be kept confidential and shall not be released by 43 committee members, committee consultants, or other persons privy to such 44 proceedings and records; the proceedings and records of an ethics review 45 committee shall not be subject to disclosure or inspection in any 46 manner, including under article six of the public officers law or arti- 47 cle thirty-one of the civil practice law and rules; and, no person shall 48 testify as to the proceedings or records of an ethics review committee, 49 nor shall such proceedings and records otherwise be admissible as 50 evidence in any action or proceeding of any kind in any court or before 51 any other tribunal, board, agency or person, except that: 52 (a) Ethics review committee proceedings and records, in cases where a 53 committee approves or disapproves of the withholding or withdrawal of 54 life-sustaining treatment pursuant to subdivision five of section twen- 55 ty-nine hundred ninety-four-d of this article, or subdivision three of A. 6315--A 15 1 section twenty-nine hundred ninety-four-e of this article, may be 2 obtained by or released to the department; 3 (b) Nothing in this subdivision shall prohibit the patient, the surro- 4 gate, other persons on the surrogate list, or a parent or guardian of a 5 minor patient from voluntarily disclosing, releasing or testifying about 6 committee proceedings or records; and 7 (c) Nothing in this subdivision shall prohibit the state commission on 8 quality of care for the mentally disabled from requiring any informa- 9 tion, report or record from a hospital in accordance with the provisions 10 of section 45.09 of the mental hygiene law. 11 § 2994-n. Conscience objections. 1. Private hospitals. Nothing in this 12 article shall be construed to require a private hospital to honor a 13 health care decision made pursuant to this article if: 14 (a) The decision is contrary to a formally adopted policy of the 15 hospital that is expressly based on sincerely held religious beliefs or 16 sincerely held moral convictions central to the facility's operating 17 principles; 18 (b) The hospital has informed the patient, family, or surrogate of 19 such policy prior to or upon admission, if reasonably possible; and 20 (c) The patient is transferred promptly to another hospital that is 21 reasonably accessible under the circumstances and willing to honor the 22 decision. If the patient's family or surrogate is unable or unwilling to 23 arrange such a transfer, the hospital may intervene to facilitate such a 24 transfer. If such a transfer is not effected, the hospital shall seek 25 judicial relief or honor the decision. 26 2. Individual health care providers. Nothing in this article shall be 27 construed to require an individual as a health care provider to honor a 28 health care decision made pursuant to this article if: 29 (a) the decision is contrary to the individual's sincerely held reli- 30 gious beliefs or sincerely held moral conviction; and 31 (b) the individual health care provider promptly informs the person 32 who made the decision and the hospital of his or her refusal to honor 33 the decision. In such event, the hospital shall promptly transfer 34 responsibility for the patient to another individual health care provid- 35 er willing to honor the decision. The individual health care provider 36 shall cooperate in facilitating such transfer. 37 § 2994-o. Immunity. 1. Ethics review committee. No person shall be 38 subject to criminal or civil liability, or be deemed to have engaged in 39 unprofessional conduct, for acts performed in good faith pursuant to 40 this article as a member of or as a consultant to an ethics review 41 committee or as a participant in an ethics review committee meeting. 42 2. Providers. No health care provider or employee thereof shall be 43 subjected to criminal or civil liability, or be deemed to have engaged 44 in unprofessional conduct, for honoring in good faith a health care 45 decision made pursuant to this article or for other actions taken in 46 good faith pursuant to this article. 47 3. Surrogates, patients and guardians. No person shall be subjected to 48 criminal or civil liability for making a health care decision in good 49 faith pursuant to this article or for other actions taken in good faith 50 pursuant to this article. 51 § 2994-p. Liability for health care costs. Liability for the cost of 52 health care provided to an adult patient pursuant to this article shall 53 be the same as if the health care were provided pursuant to the 54 patient's decision. No person shall become liable for the cost of health 55 care for a minor solely by virtue of making a decision as a guardian of 56 a minor pursuant to this article. A. 6315--A 16 1 § 2994-q. Effect on other rights. 1. Nothing in this article creates, 2 expands, diminishes, impairs, or supersedes any authority that an indi- 3 vidual may have under law to make or express decisions, wishes, or 4 instructions regarding health care on his or her own behalf, including 5 decisions about life-sustaining treatment. 6 2. Nothing in this article shall affect existing law concerning 7 implied consent to health care in an emergency. 8 3. Nothing in this article is intended to permit or promote suicide, 9 assisted suicide, or euthanasia. 10 4. This article shall not affect existing law with respect to sterili- 11 zation. 12 5. Nothing in this article diminishes the duty of parents and legal 13 guardians under existing law to consent to treatment for minors. 14 § 2994-r. Special proceeding authorized; court orders; health care 15 guardian for minor patient. 1. Special proceeding. Any person connected 16 with the case and any member of the hospital ethics review committee may 17 commence a special proceeding in a court of competent jurisdiction with 18 respect to any matter arising under this article. 19 2. Court orders designating surrogate. A court of competent jurisdic- 20 tion may designate any individual from the surrogate list to act as 21 surrogate, regardless of that individual's priority on the list, if the 22 court determines that such appointment would best accord with the 23 patient's wishes or, if the patient's wishes are not reasonably known, 24 with the patient's best interests. Unless otherwise determined by a 25 court, no surrogate decision made prior to an order designating a surro- 26 gate shall be deemed to have been invalid because of the issuance of a 27 designating order. 28 3. Court orders to withhold or withdraw life-sustaining treatment. A 29 court of competent jurisdiction may authorize the withholding or with- 30 drawal of life-sustaining treatment from a person if the court deter- 31 mines that the person lacks decision-making capacity, and withdrawing or 32 withholding the treatment would accord with the standards set forth in 33 subdivision five of section twenty-nine hundred ninety-four-d of this 34 article. 35 4. Health care guardian for a minor patient. (a) The following persons 36 may commence a special proceeding in a court of competent jurisdiction 37 to seek appointment as the health care guardian of a minor patient sole- 38 ly for the purpose of deciding about life-sustaining treatment pursuant 39 to this article: 40 (i) the hospital administrator; 41 (ii) an attending physician; 42 (iii) the local commissioner of social services or the local commis- 43 sioner of health, authorized to make medical treatment decisions for the 44 minor pursuant to section three hundred eighty-three-b of the social 45 services law; or 46 (iv) an individual, eighteen years of age or older, who has assumed 47 care of the minor for a substantial and continuous period of time. 48 (b) Notice of the proceeding shall be given to the persons identified 49 in section one thousand seven hundred five of the surrogate's court 50 procedure act. 51 (c) No appointment shall be made pursuant to this subdivision if a 52 parent or legal guardian of the person is available, willing, and compe- 53 tent to decide about treatment for the minor. 54 (d) Notwithstanding any other provision of law, seeking appointment or 55 being appointed as a health care guardian shall not otherwise affect the A. 6315--A 17 1 legal status or rights of the individual seeking or obtaining such 2 appointment. 3 § 2994-s. Remedy. 1. Any hospital or attending physician that refuses 4 to honor a health care decision by a surrogate made pursuant to this 5 article and in accord with the standards set forth in this article shall 6 not be entitled to compensation for treatment, services, or procedures 7 refused by the surrogate, except that this subdivision shall not apply: 8 (a) when a hospital or physician exercises the rights granted by 9 section twenty-nine hundred ninety-four-n of this article, provided that 10 the physician or hospital promptly fulfills the obligations set forth in 11 section twenty-nine hundred ninety-four-n of this article; 12 (b) while a matter is under consideration by the ethics review commit- 13 tee, provided that the matter is promptly referred to and considered by 14 the committee; 15 (c) in the event of a dispute between individuals on the surrogate 16 list; or 17 (d) if the physician or hospital prevails in any litigation concerning 18 the surrogate's decision to refuse the treatment, services or procedure. 19 Nothing in this section shall determine or affect how disputes among 20 individuals on the surrogate list are resolved. 21 2. The remedy provided in this section is in addition to and cumula- 22 tive with any other remedies available at law or in equity or by admin- 23 istrative proceedings to a patient, a health care agent appointed pursu- 24 ant to article twenty-nine-C of this chapter, or a person authorized to 25 make health care decisions pursuant to this article, including injunc- 26 tive and declaratory relief, and any other provisions of this chapter 27 governing fines, penalties, or forfeitures. 28 § 2994-t. Regulations. 1. The commissioner shall establish such regu- 29 lations as may be necessary to implement this article. 30 2. The commissioner, in consultation with the commissioners of the 31 office of mental health and the office of mental retardation and devel- 32 opmental disabilities, shall promulgate regulations identifying the 33 credentials of health care professionals qualified to provide a concur- 34 ring opinion, pursuant to subdivision three of section twenty-nine 35 hundred ninety-four-c of this article, that a patient lacks decision- 36 making capacity because of mental illness or developmental disability. 37 § 2994-u. Rights to be publicized. The commissioner shall prepare a 38 statement summarizing the rights, duties, and requirements of this arti- 39 cle and shall require that a copy of such statement be furnished to 40 patients or to persons on the surrogate list known to the hospital, or 41 to the parents or guardians of minor patients, at or prior to admission 42 to the hospital, or within a reasonable time thereafter, and to each 43 member of the hospital's staff directly involved with patient care. 44 ARTICLE 29-CCC 45 NONHOSPITAL ORDERS NOT TO RESUSCITATE 46 Section 2994-aa. Definitions. 47 2994-bb. General provisions. 48 2994-cc. Consent to a nonhospital order not to resuscitate. 49 2994-dd. Managing a nonhospital order not to resuscitate. 50 2994-ee. Obligation to honor a nonhospital order not to resusci- 51 tate. 52 2994-ff. Interinstitutional transfer. 53 2994-gg. Immunity. 54 § 2994-aa. Definitions. 1. "Adult" means any person who is eighteen 55 years of age or older, or is the parent of a child or has married. A. 6315--A 18 1 2. "Attending physician" means the physician who has primary responsi- 2 bility for the treatment and care of the patient. Where more than one 3 physician shares such responsibility, any such physician may act as the 4 attending physician pursuant to this article. 5 3. "Capacity" means the ability to understand and appreciate the 6 nature and consequences of a nonhospital order not to resuscitate, 7 including the benefits and disadvantages of such an order, and to reach 8 an informed decision regarding the order. 9 4. "Cardiopulmonary resuscitation" means measures, as specified in 10 regulations promulgated by the commissioner, to restore cardiac function 11 or to support ventilation in the event of a cardiac or respiratory 12 arrest. Such term shall not include measures to improve ventilation and 13 cardiac function in the absence of an arrest. 14 5. "Emergency medical services personnel" means the personnel of a 15 service or agency engaged in providing initial emergency medical assist- 16 ance, including but not limited to first responders, emergency medical 17 technicians, advanced emergency medical technicians and personnel 18 engaged in providing health care at correctional facilities, as that 19 term is defined in subdivision four of section two of the correction 20 law. 21 6. "Health care agent" means a health care agent of the patient desig- 22 nated pursuant to article twenty-nine-C of this chapter. 23 7. "Health or social services practitioner" means a registered profes- 24 sional nurse, nurse practitioner, physician, psychologist or certified 25 social worker licensed or certified pursuant to the education law and 26 qualified to provide a second opinion of capacity as specified in regu- 27 lations promulgated by the commissioner. 28 8. "Hospital" means a general hospital as defined in subdivision ten 29 of section twenty-eight hundred one of this chapter and a residential 30 health care facility as defined in subdivision three of section twenty- 31 eight hundred one of this chapter or a hospital as defined in subdivi- 32 sion ten of section 1.03 of the mental hygiene law or a school named in 33 section 13.17 of the mental hygiene law. 34 9. "Hospital emergency services personnel" means the personnel of the 35 emergency service of a general hospital, as defined in subdivision ten 36 of section twenty-eight hundred one of this chapter, including but not 37 limited to emergency services attending physicians, emergency services 38 registered professional nurses, and registered professional nurses, 39 nursing staff and registered physicians assistants assigned to the 40 general hospital's emergency service. 41 10. "Mental hygiene facility" means a residential facility operated or 42 licensed by the office of mental health or the office of mental retarda- 43 tion and developmental disabilities. 44 11. "Nonhospital order not to resuscitate" means an order that directs 45 emergency medical services personnel, hospital emergency services 46 personnel, and correctional facilities medical care personnel not to 47 attempt cardiopulmonary resuscitation in the event a patient suffers 48 cardiac or respiratory arrest. 49 12. "Patient" means a person who has been or who may be issued a 50 nonhospital order not to resuscitate. 51 13. "Surrogate" means a person or committee of persons with the 52 authority to consent to an order not to resuscitate pursuant to article 53 twenty-nine-B or twenty-nine-CC of this chapter. 54 14. "Correctional facilities medical care personnel" means personnel 55 engaged in providing health care at correctional facilities, as that A. 6315--A 19 1 term is defined in subdivision four of section two of the correction 2 law. 3 § 2994-bb. General provisions. 1. (a) Emergency medical services 4 personnel and hospital emergency services personnel shall honor nonhos- 5 pital orders not to resuscitate, except as provided in section twenty- 6 nine hundred ninety-four-ee of this article. 7 (b) A nonhospital order not to resuscitate shall not constitute an 8 order to withhold or withdraw treatment other than cardiopulmonary 9 resuscitation. 10 2. A nonhospital order not to resuscitate may be issued during hospi- 11 talization to take effect after hospitalization, or may be issued for a 12 person who is not a patient in, or a resident of, a hospital. 13 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An 14 adult with decision-making capacity, a health care agent, or a surrogate 15 may consent to a nonhospital order not to resuscitate orally to the 16 attending physician or in writing. If a patient consents to a nonhospi- 17 tal order not to resuscitate while in a correctional facility, notice of 18 the patient's consent shall be given to the facility director and 19 reasonable efforts shall be made to notify an individual designated by 20 the patient to receive such notice prior to the issuance of the nonhos- 21 pital order not to resuscitate. Notification to the facility director or 22 the individual designated by the patient shall not delay issuance of a 23 nonhospital order not to resuscitate. 24 2. Consent by a health care agent shall be governed by article twen- 25 ty-nine-C of this chapter. 26 3. Consent by a surrogate shall be governed by article twenty-nine-D 27 of this chapter, except that: (a) a second determination of capacity 28 shall be made by a health or social services practitioner as defined in 29 subdivision seven of section twenty-nine hundred ninety-four-aa of this 30 article; and (b) the authority of the ethics review committee set forth 31 in article twenty-nine-CC of this chapter shall apply only to nonhospi- 32 tal orders issued in a hospital. 33 4. (a) When the concurrence of a second physician is sought to fulfill 34 the requirements for the issuance of a nonhospital order not to resusci- 35 tate pursuant to section twenty-nine hundred ninety-four-d of this chap- 36 ter for patients in a correctional facility, such second physician shall 37 be selected by the chief medical officer of the department of 38 corrections or his or her designee. 39 (b) When the concurrence of a second physician is sought to fulfill 40 the requirements for the issuance of a nonhospital order not to resusci- 41 tate pursuant to section twenty-nine hundred ninety-four-d of this chap- 42 ter for hospice and home care patients, such second physician shall be 43 selected by the hospice medical director or hospice nurse coordinator 44 designated by the medical director or by the home care services agency 45 director of patient care services, as appropriate to the patient. 46 5. Consent by a patient or a surrogate for a patient in a mental 47 hygiene facility shall be governed by article twenty-nine-B of this 48 chapter. 49 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The 50 attending physician shall record the issuance of a nonhospital order not 51 to resuscitate in the patient's medical record. 52 2. A nonhospital order not to resuscitate shall be issued upon a stan- 53 dard form prescribed by the commissioner. The commissioner shall also 54 develop a standard bracelet that may be worn by a patient with a nonhos- 55 pital order not to resuscitate to identify that status; provided, howev- 56 er, that no person may require a patient to wear such a bracelet and A. 6315--A 20 1 that no person may require a patient to wear such a bracelet as a condi- 2 tion for honoring a nonhospital order not to resuscitate or for provid- 3 ing health care services. 4 3. An attending physician who has issued a nonhospital order not to 5 resuscitate, and who transfers care of the patient to another physician, 6 shall inform the physician of the order. 7 4. For each patient for whom a nonhospital order not to resuscitate 8 has been issued, the attending physician shall review whether the order 9 is still appropriate in light of the patient's condition each time he or 10 she examines the patient, whether in the hospital or elsewhere, but at 11 least every ninety days, provided that the review need not occur more 12 than once every seven days. The attending physician shall record the 13 review in the patient's medical record provided, however, that a regis- 14 tered nurse who provides direct care to the patient may record the 15 review in the medical record at the direction of the physician. In such 16 case, the attending physician shall include a confirmation of the review 17 in the patient's medical record within fourteen days of such review. 18 Failure to comply with this subdivision shall not render a nonhospital 19 order not to resuscitate ineffective. 20 5. A person who has consented to a nonhospital order not to resusci- 21 tate may at any time revoke his or her consent to the order by any act 22 evidencing a specific intent to revoke such consent. Any health care 23 professional informed of a revocation of consent to a nonhospital order 24 not to resuscitate shall notify the attending physician of the revoca- 25 tion. An attending physician who is informed that a nonhospital order 26 not to resuscitate has been revoked shall record the revocation in the 27 patient's medical record, cancel the order and make diligent efforts to 28 retrieve the form issuing the order, and the standard bracelet, if any. 29 § 2994-ee. Obligation to honor a nonhospital order not to resuscitate. 30 Emergency medical services personnel or hospital emergency services 31 personnel who are provided with a nonhospital order not to resuscitate, 32 or who identify the standard bracelet on the patient's body, shall 33 comply with the terms of such order; provided, however, that: 34 1. Emergency medical services personnel or hospital emergency services 35 personnel may disregard the order if: 36 (a) They believe in good faith that consent to the order has been 37 revoked, or that the order has been cancelled; or 38 (b) Family members or others on the scene, excluding such personnel, 39 object to the order and physical confrontation appears likely; and 40 2. Hospital emergency services physicians may direct that the order be 41 disregarded if other significant and exceptional medical circumstances 42 warrant disregarding the order. 43 § 2994-ff. Interinstitutional transfer. If a patient with a nonhospi- 44 tal order not to resuscitate is admitted to a hospital, the order shall 45 be treated as an order not to resuscitate for a patient transferred from 46 another hospital, and shall be governed by article twenty-nine-CC of 47 this chapter, except that any such order for a patient admitted to a 48 mental hygiene facility shall be governed by article twenty-nine-B of 49 this chapter. 50 § 2994-gg. Immunity. No person shall be subjected to criminal prose- 51 cution or civil liability, or be deemed to have engaged in unprofes- 52 sional conduct, for honoring reasonably and in good faith pursuant to 53 this section a nonhospital order not to resuscitate, for disregarding a 54 nonhospital order pursuant to section twenty-nine hundred ninety-four-ee 55 of this article, or for other actions taken reasonably and in good faith 56 pursuant to this section. A. 6315--A 21 1 § 3. The article heading of article 29-B of the public health law, as 2 added by chapter 818 of the laws of 1987, is amended to read as follows: 3 ORDERS NOT TO RESUSCITATE FOR RESIDENTS OF MENTAL HYGIENE 4 FACILITIES 5 § 4. Subdivisions 5-a, 7, 10, 13 and 16 of section 2961 of the public 6 health law are REPEALED. 7 § 5. Subdivisions 2, 4, 9 and 19 of section 2961 of the public health 8 law, subdivisions 2 and 19 as amended and subdivision 9 as renumbered by 9 chapter 370 of the laws of 1991 and subdivisions 4 and 9 as added by 10 chapter 818 of the laws of 1987, are amended to read as follows: 11 2. "Attending physician" means the physician selected by or assigned 12 to a patient in a hospital [or, for the purpose of provisions herein 13 governing nonhospital orders not to resuscitate, a patient not in a 14 hospital,] who has primary responsibility for the treatment and care of 15 the patient. Where more than one physician shares such responsibility, 16 any such physician may act as the attending physician pursuant to this 17 article. 18 4. "Cardiopulmonary resuscitation" means measures[, as specified in 19 regulations promulgated by the commissioner,] to restore cardiac func- 20 tion or to support ventilation in the event of a cardiac or respiratory 21 arrest. Cardiopulmonary resuscitation shall not include measures to 22 improve ventilation and cardiac functions in the absence of an arrest. 23 9. "Hospital" means [a general hospital as defined in subdivision ten 24 of section twenty-eight hundred one of this chapter and a residential 25 health care facility as defined in subdivision three of section twenty- 26 eight hundred one of this chapter or] a hospital as defined in subdivi- 27 sion ten of section 1.03 of the mental hygiene law or a school named in 28 section 13.17 of the mental hygiene law. 29 19. "Patient" means a person admitted to a hospital [or, for the 30 purpose of provisions herein governing nonhospital orders not to resus- 31 citate, a person who has or may be issued a nonhospital order not to 32 resuscitate]. 33 § 6. Subdivision 1, paragraph (b) of subdivision 3 and subdivision 4 34 of section 2963 of the public health law, subdivisions 1 and 4 as added 35 by chapter 818 of the laws of 1987, and paragraph (b) of subdivision 3 36 as amended by chapter 23 of the laws of 1994, are amended to read as 37 follows: 38 1. Every adult shall be presumed to have the capacity to make a deci- 39 sion regarding cardiopulmonary resuscitation unless determined otherwise 40 pursuant to this section or pursuant to a court order[. A lack of capac- 41 ity shall not be presumed from the fact that a committee of the property 42 or conservator has been appointed for the adult pursuant to article 43 seventy-seven or seventy-eight of the mental hygiene law, or that a 44 guardian has been appointed pursuant to article seventeen-A of the 45 surrogate's court procedure act] or unless a guardian is authorized to 46 decide about health care for the adult pursuant to article eighty-one of 47 the mental hygiene law. For purposes of this article, the appointment of 48 a guardian pursuant to article seventeen-A of the surrogate's court 49 procedure act shall not create any presumption regarding the patient's 50 decision-making capacity. The attending physician shall not rely on the 51 presumption stated in this subdivision if clinical indicia of incapacity 52 are present. 53 (b) If the attending physician [of a patient in a general hospital] 54 determines that a patient lacks capacity because of mental illness, the 55 concurring determination required by paragraph (a) of this subdivision 56 shall be provided by a physician licensed to practice medicine in New A. 6315--A 22 1 York state, who is a diplomate or eligible to be certified by the Ameri- 2 can Board of Psychiatry and Neurology or who is certified by the Ameri- 3 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 4 certified by that board. 5 4. Notice of a determination that the patient lacks capacity shall 6 promptly be given (a) to the patient, where there is any indication of 7 the patient's ability to comprehend such notice, together with a copy of 8 a statement prepared in accordance with section twenty-nine hundred 9 seventy-eight of this article, and (b) to the person on the surrogate 10 list highest in order of priority listed, when persons in prior subpara- 11 graphs are not reasonably available[, and (c) if the patient is in or is 12 transferred from a mental hygiene facility, to the facility director]. 13 Nothing in this subdivision shall preclude or require notice to more 14 than one person on the surrogate list. 15 § 7. Subdivision 4 of section 2964 of the public health law is 16 REPEALED. 17 § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 18 2965 of the public health law is REPEALED and a new subparagraph (i) is 19 added to read as follows: 20 (i) a guardian authorized to decide about health care pursuant to 21 article eighty-one of the mental hygiene law or a guardian of the person 22 appointed under article seventeen-A of the surrogate's court procedure 23 act; 24 § 9. Paragraph (c) of subdivision 4 and subdivision 5 of section 2965 25 of the public health law are REPEALED. 26 § 10. Paragraph (d) of subdivision 4 of section 2965 of the public 27 health law, as added by chapter 818 of the laws of 1987 and such subdi- 28 vision as renumbered by chapter 370 of the laws of 1991, is amended to 29 read as follows: 30 [(d)] (c) If the attending physician has actual notice of opposition 31 to a surrogate's consent to an order not to resuscitate by any person on 32 the surrogate list[, or, if the patient is in or is transferred from a 33 mental hygiene facility, by the facility director], the [phsyician] 34 physician shall submit the matter to the dispute mediation system and 35 such order shall not be issued or shall be revoked in accordance with 36 the provisions of subdivision three of section twenty-nine hundred 37 seventy-two of this article. 38 § 11. Subdivision 2 of section 2966 of the public health law is 39 REPEALED. 40 § 12. Paragraph (c) of subdivision 2 of section 2967 of the public 41 health law is REPEALED. 42 § 13. Subdivision 1 of section 2970 of the public health law, as 43 amended by chapter 370 of the laws of 1991, is amended to read as 44 follows: 45 1. For each patient for whom an order not to resuscitate has been 46 issued, the attending physician shall review the patient's chart to 47 determine if the order is still appropriate in light of the patient's 48 condition and shall indicate on the patient's chart that the order has 49 been reviewed[: 50 (a) for a patient, excluding outpatients described in paragraph (b) of 51 this subdivision and alternate level of care patients, in a hospital, 52 other than a residential health care facility, at least every seven 53 days; 54 (b) for an outpatient whose order not to resuscitate is effective 55 while the patient receives care in a hospital, each time the attending 56 physician examines the patient, whether in the hospital or elsewhere, A. 6315--A 23 1 provided that the review need not occur more than once every seven days; 2 and 3 (c) for a patient in a residential health care facility or an alter- 4 nate level of care patient in a hospital,] each time the patient is 5 required to be seen by a physician but at least every sixty days. 6 Failure to comply with this subdivision shall not render an order not 7 to resuscitate ineffective. 8 § 14. Section 2971 of the public health law is amended by adding a new 9 subdivision 3 to read as follows: 10 3. For purposes of this section, an order not to resuscitate issued by 11 a general hospital as defined in subdivision ten of section twenty-eight 12 hundred one of this chapter, or by a residential health care facility as 13 defined in subdivision three of section twenty-eight hundred one of this 14 chapter, shall be deemed a hospital order not to resuscitate. 15 § 15. Subdivision 2 of section 2972 of the public health law, as 16 amended by chapter 370 of the laws of 1991, is amended to read as 17 follows: 18 2. The dispute mediation system shall be authorized to mediate any 19 dispute, including disputes regarding the determination of the patient's 20 capacity, arising under this article between the patient and an attend- 21 ing physician or the hospital that is caring for the patient and, if the 22 patient is a minor, the patient's parent, or among an attending physi- 23 cian, a parent, non-custodial parent, or legal guardian of a minor 24 patient, any person on the surrogate list, and the hospital that is 25 caring for the patient [and, where the dispute involves a patient who is 26 in or is transferred from a mental hygiene facility, the facility direc- 27 tor]. 28 § 16. Subdivision 1 of section 2973 of the public health law, as 29 amended by chapter 577 of the laws of 1993, is amended to read as 30 follows: 31 1. The patient, an attending physician, a parent, non-custodial 32 parent, or legal guardian of a minor patient, any person on the surro- 33 gate list, the hospital that is caring for the patient and[, in disputes 34 involving a patient who is in or is transferred from a mental hygiene or 35 correctional facility,] the facility director, may commence a special 36 proceeding pursuant to article four of the civil practice law and rules, 37 in a court of competent jurisdiction, with respect to any dispute aris- 38 ing under this article, except that the decision of a patient not to 39 consent to issuance of an order not to resuscitate may not be subjected 40 to judicial review. In any proceeding brought pursuant to this subdivi- 41 sion challenging a decision regarding issuance of an order not to resus- 42 citate on the ground that the decision is contrary to the patient's 43 wishes or best interests, the person or entity challenging the decision 44 must show, by clear and convincing evidence, that the decision is 45 contrary to the patient's wishes including consideration of the 46 patient's religious and moral beliefs, or, in the absence of evidence of 47 the patient's wishes, that the decision is contrary to the patient's 48 best interests. In any other proceeding brought pursuant to this subdi- 49 vision, the court shall make its determination based upon the applicable 50 substantive standards and procedures set forth in this article. 51 § 17. Section 2977 of the public health law is REPEALED. 52 § 18. Subdivision 1 of section 2978 of the public health law is 53 REPEALED and subdivision 2, as added by chapter 818 of the laws of 1987, 54 such section as renumbered by chapter 370 of the laws of 1991, is 55 amended to read as follows: A. 6315--A 24 1 [2.] The commissioners of mental health and mental retardation and 2 developmental disabilities[, in consultation with the commissioner of 3 health,] shall establish such regulations as may be necessary for imple- 4 mentation of this article with respect to those persons in mental 5 hygiene facilities. 6 § 19. The opening paragraph of subdivision 1 of section 2979 of the 7 public health law, as added by chapter 818 of the laws of 1987, such 8 section as renumbered by chapter 370 of the laws of 1991, is amended to 9 read as follows: 10 The [commissioner of health, after consultation with the] commission- 11 ers of mental health and mental retardation and developmental disabili- 12 ties[,] shall prepare a statement summarizing the rights, duties, and 13 requirements of this article and shall require that a copy of such 14 statement: 15 § 20. The public health law is amended by adding a new section 4001 to 16 read as follows: 17 § 4001. State council on hospice care. 1. There is hereby created a 18 state council on hospice care, hereinafter known as the "council", to 19 consist of the commissioner, and such other agencies and executive divi- 20 sions heads as the governor shall designate, and nine additional members 21 who shall be appointed as follows: three by the governor; two each by 22 the temporary president of the senate and the speaker of the assembly; 23 and one each by the minority leader of the senate and the minority lead- 24 er of the assembly. The commissioner shall designate one of the 25 appointed members to serve as chairperson. 26 2. The term of office of each appointive member of the council shall 27 be for three years. The appointive members shall continue in office 28 until the expiration of their terms and until their successors are 29 appointed and have qualified. 30 3. Vacancies shall be filled by appointment for the unexpired terms. 31 4. The council shall meet as frequently as its business may require 32 and in any event at least once in each calendar quarter of each year. 33 The members of the council shall receive no compensation for their 34 services as members of the council, but each of them shall be allowed 35 the necessary and actual expenses which he or she shall incur in the 36 performance of his or her duties under this section. 37 5. The council shall advise the governor, the legislature and the 38 department, concerning efforts to promote hospice care as part of the 39 entire health treatment process, to review appropriate roles for hospice 40 programs in implementing articles twenty-nine-C and twenty-nine-CC of 41 this chapter, and shall perform such other related functions as the 42 commissioner may prescribe. 43 6. The council shall, within one year of the effective date of this 44 section and annually thereafter, provide the governor and the legisla- 45 ture with a report concerning the council's activities and efforts to 46 promote hospice care as part of the entire health treatment process, to 47 review hospice programs roles in implementation of articles 48 twenty-nine-C and twenty-nine-CC of this chapter, and on such other 49 related matters as the commissioner may have prescribed. Such report may 50 include recommendations for appropriate legislation, rules and regu- 51 lations, and other actions which would enhance the availability, appro- 52 priate utilization, and coordination of hospice care in this state. 53 § 21. The public health law is amended by adding a new section 4015 to 54 read as follows: 55 § 4015. State plan for hospice care. In furtherance of implementing 56 the intent of the legislature as set forth in this article, the state A. 6315--A 25 1 council on hospice care, established by section four thousand one of 2 this article shall prepare a comprehensive plan to promote hospice care 3 where it is an appropriate treatment decision as part of a patient and 4 family oriented and comprehensive program of care for the terminally 5 ill, and to review appropriate roles for hospice programs in implement- 6 ing articles twenty-nine-C and twenty-nine-CC of this chapter and such 7 other related matters as the commissioner may prescribe. Such plans 8 shall be submitted to the governor, the legislature, the commissioner of 9 the affected state agencies, and other health care providers and the 10 public upon request. 11 § 22. This act shall take effect on the first of June next succeeding 12 the year in which it shall have become a law. Go to top Sitemap Request Information Directions and Maps