Text of NY S 5393 (2004)

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Bill No.: Summary Actions Floor Votes Memo Text S05393 Summary: BILL NOS05393A SAME ASNo Same As SPONSORSEWARD COSPNSRLAVALLE, BONACIC, HOFFMANN, LARKIN, LITTLE, MAZIARZ, MCGEE, MORAHAN, SALAND, SPANO, VOLKER,BONACIC MLTSPNSR 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.Go to top S05393 Text: STATE OF NEW YORK ________________________________________________________________________ 5393--A 2003-2004 Regular Sessions IN SENATE June 5, 2003 ___________ Introduced by Sens. SEWARD, LAVALLE, BONACIC, HOFFMANN, LARKIN, LITTLE, MAZIARZ, McGEE, MORAHAN, SALAND, SPANO, VOLKER -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recommitted to the Committee on Health in accordance with Senate Rule 6, sec. 8 -- 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 14 substantive right of competent adults to decide about treatment for 15 themselves. Further, the legislature does not intend to authorize a 16 surrogate to deny to the patient personal services that every patient 17 would generally receive, such as appropriate food, water, bed rest, room 18 temperature and hygiene. This legislation establishes a procedure to 19 facilitate responsible decision-making by surrogates on behalf of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03468-04-4 S. 5393--A 2 1 patients who do not have capacity to make their own health care deci- 2 sions. This legislation further establishes a state council on hospice 3 care to promote hospice care where it is an appropriate treatment deci- 4 sion as part of a patient and family-oriented, comprehensive program of 5 service for the terminally ill and to review the appropriate roles for 6 hospice programs in the implementation of article 29-C and the new arti- 7 cle 29-CC of the public health law. 8 This legislation affirms existing laws and policies that limit indi- 9 vidual conduct of patients with or without capacity, including those 10 laws and policies against homicide, suicide, assisted suicide and mercy 11 killing. 12 § 2. The public health law is amended by adding two new articles 29-CC 13 and 29-CCC to read as follows: 14 ARTICLE 29-CC 15 FAMILY HEALTH CARE DECISIONS ACT 16 Section 2994-a. Definitions. 17 2994-b. Priority of decision by health care agent. 18 2994-c. Determination of incapacity. 19 2994-d. Health care decisions for adult patients by surrogates. 20 2994-e. Decisions about life-sustaining treatment for minor 21 patients. 22 2994-f. Obligations of attending physician. 23 2994-g. Health care decisions for adult patients without surro- 24 gates. 25 2994-h. Decisions for patients transferred from a mental hygiene 26 facility. 27 2994-i. Specific policies for orders not to resuscitate. 28 2994-j. Revocation of consent. 29 2994-k. Implementation and review of decisions. 30 2994-l. Interinstitutional transfers. 31 2994-m. Ethics review committees. 32 2994-n. Conscience objections. 33 2994-o. Immunity. 34 2994-p. Liability for health care costs. 35 2994-q. Effect on other rights. 36 2994-r. Special proceeding authorized; court orders; health care 37 guardian for minor patient. 38 2994-s. Remedy. 39 2994-t. Regulations. 40 2994-u. Rights to be publicized. 41 § 2994-a. Definitions. The following words or phrases, used in this 42 article, shall have the following meanings, unless the context otherwise 43 requires: 44 1. "Adult" means any person who is eighteen years of age or older or 45 has married. 46 2. "Attending physician" means a physician, selected by or assigned to 47 a patient, who has primary responsibility for the treatment and care of 48 the patient. Where more than one physician shares such responsibility, 49 or where a physician is acting on the attending physician's behalf, any 50 such physician may act as an attending physician pursuant to this arti- 51 cle. 52 3. "Ethics review committee" means the interdisciplinary hospital 53 committee established in accordance with the requirements of section 54 twenty-nine hundred ninety-four-m of this article. 55 4. "Cardiopulmonary resuscitation" means measures, as specified in 56 regulations promulgated by the commissioner, to restore cardiac function S. 5393--A 3 1 or to support ventilation in the event of a cardiac or respiratory 2 arrest. Cardiopulmonary resuscitation shall not include measures to 3 improved ventilation and cardiac function in the absence of an arrest. 4 5. "Close friend" means any person, eighteen years of age or older, 5 who presents a signed, written statement to an attending physician stat- 6 ing that he or she is a close friend of the patient and that he or she 7 has maintained such regular contact with the patient as to be familiar 8 with the patient's activities, health, and religious or moral beliefs, 9 and stating the facts and circumstances that demonstrate such familiar- 10 ity. 11 6. "Close relative" 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 relative of the patient and that he or she has 14 maintained such regular contact with the patient as to be familiar with 15 the patient's activities, health, and religious or moral beliefs, and 16 stating the facts and circumstances that demonstrate such familiarity. 17 7. "Decision-making capacity" means the ability to understand and 18 appreciate the nature and consequences of proposed health care, includ- 19 ing the benefits and risks of, and alternatives to, any such proposed 20 health care, and to reach an informed decision. 21 8. "Developmental disability" means a developmental disability as 22 defined in subdivision twenty-two of section 1.03 of the mental hygiene 23 law. 24 9. "Emancipated minor patient" means a minor patient who is the parent 25 of a child, or who is sixteen years of age or older and living independ- 26 ently from his or her parents or guardian. 27 10. "General hospital" means a general hospital as defined in subdivi- 28 sion ten of section twenty-eight hundred one of this chapter. 29 11. "Guardian of a minor" or "guardian" means a health care guardian 30 or a legal guardian of the person of a minor. 31 12. "Health care" means any treatment, service, or procedure to diag- 32 nose or treat an individual's physical or mental condition. 33 13. "Health care agent" means a health care agent designated by an 34 adult pursuant to article twenty-nine-C of this chapter. 35 14. "Health care decision" means any decision to consent or refuse to 36 consent to health care. 37 15. "Health care guardian" means an individual appointed by a court, 38 pursuant to subdivision four of section twenty-nine hundred 39 ninety-four-r of this article, as the guardian of a minor patient solely 40 for the purpose of deciding about life-sustaining treatment pursuant to 41 this article. 42 16. "Health care provider" means an individual or facility licensed, 43 certified, or otherwise authorized or permitted by law to administer 44 health care in the ordinary course of business or professional practice. 45 17. "Health or social service practitioner" means a registered profes- 46 sional nurse, nurse practitioner, physician, psychologist or certified 47 social worker licensed or certified pursuant to the education law. 48 18. "Hospital" means a general hospital as defined in subdivision ten 49 of section twenty-eight hundred one of this chapter, and a residential 50 health care facility as defined in subdivision three of section twenty- 51 eight hundred one of this chapter, but excluding a ward, wing, unit or 52 other part of a general hospital that provides mental health services to 53 mentally ill persons pursuant to an operating certificate issued by the 54 commissioner of mental health other than medical-psychiatric units 55 jointly identified by the commissioner of health and the commissioner of 56 mental health. S. 5393--A 4 1 19. "Life-sustaining treatment" means any medical treatment or proce- 2 dure without which the patient will die within a relatively short time, 3 as determined by an attending physician to a reasonable degree of 4 medical certainty. 5 20. "Major medical treatment" means any treatment, service or proce- 6 dure to diagnose or treat an individual's physical or mental condition: 7 (a) where a general anesthetic is used; or 8 (b) which involves any significant risk; or 9 (c) which involves any significant invasion of bodily integrity 10 requiring an incision, producing substantial pain, discomfort, debili- 11 tation or having a significant recovery period; or 12 (d) which involves the use of physical restraints, as specified in 13 regulations promulgated by the commissioner, except in an emergency; or 14 (e) which involves the use of psychoactive medications, except when 15 provided as part of post-operative care or in response to an acute 16 illness and treatment is reasonably expected to be administered over a 17 period of forty-eight hours or less, or when provided in an emergency. 18 For purposes of this subdivision, the term "psychoactive medications" 19 shall not include anti-depressant medications. 20 21. "Mental hygiene facility" means a residential facility operated or 21 licensed by the office of mental health or the office of mental retarda- 22 tion and developmental disabilities. 23 22. "Mental illness" means a mental illness as defined in subdivision 24 twenty of section 1.03 of the mental hygiene law, provided, however, 25 that mental illness shall not include dementia, such as Alzheimer's 26 disease, or other disorders related to dementia. 27 23. "Minor" means any person who is not an adult. 28 24. "Order not to resuscitate" means an order not to attempt cardiop- 29 ulmonary resuscitation in the event a patient suffers cardiac or respir- 30 atory arrest. 31 25. "Parent", for the purpose of a health care decision about a minor 32 patient, means a parent who has custody of, or who has maintained 33 substantial and continuous contact with, the minor patient. 34 26. "Patient" means a person admitted to a hospital. 35 27. "Person connected with the case" means the patient, any person on 36 the surrogate list, a parent or guardian of a minor patient, the hospi- 37 tal administrator, an attending physician, any other health care profes- 38 sional who is or has been directly involved in the patient's care, and 39 any duly authorized state agency, including the facility director or 40 regional director for a patient transferred from a mental hygiene facil- 41 ity and the facility director for a patient transferred from a correc- 42 tional facility. 43 28. "Reasonably available" means that a person to be contacted can be 44 contacted with diligent efforts by an attending physician, another 45 person acting on behalf of an attending physician, or the hospital. 46 29. "Residential health care facility" means a residential health care 47 facility as defined in subdivision three of section twenty-eight hundred 48 one of this chapter. 49 30. "Routine medical treatment" means any treatment, service, or 50 procedure to diagnose or treat an individual's physical or mental condi- 51 tion, such as the administration of medication, the extraction of bodily 52 fluids for analysis, or dental care performed with a local anesthetic, 53 for which health care providers ordinarily do not seek specific consent 54 from the patient or authorized representative. It shall not include the 55 long-term provision of treatment such as ventilator support or a naso- 56 gastric tube but shall include such treatment when provided as part of S. 5393--A 5 1 post-operative care or in response to an acute illness and recovery is 2 reasonably expected within one month or less. 3 31. "Surrogate" means the person selected to make a health care deci- 4 sion on behalf of a patient pursuant to section twenty-nine hundred 5 ninety-four-d of this article. 6 32. "Surrogate list" means the list set forth in subdivision one of 7 section twenty-nine hundred ninety-four-d of this article. 8 § 2994-b. Priority of decision by health care agent. A health care 9 decision by a health care agent on a patient's behalf is governed by 10 article twenty-nine-C of this chapter and shall have priority over deci- 11 sions by any other person except the patient or as otherwise provided in 12 the health care proxy. Health care providers shall make reasonable 13 efforts to determine whether the patient has appointed a health care 14 agent and to contact the agent before relying on a decision by a surro- 15 gate under this article. 16 § 2994-c. Determination of incapacity. 1. Presumption of capacity. For 17 purposes of this article, every adult shall be presumed to have deci- 18 sion-making capacity unless determined otherwise pursuant to this 19 section or pursuant to court order, or unless a guardian is authorized 20 to decide about health care for the adult pursuant to article eighty-one 21 of the mental hygiene law. For purposes of this article, the appointment 22 of a guardian pursuant to article seventeen-a of the surrogate's court 23 procedure act shall not create any presumption regarding the patient's 24 decision-making capacity. 25 2. Determination by attending physician. A determination that an adult 26 patient lacks decision-making capacity, as well as an assessment of the 27 cause and extent of the patient's incapacity and the likelihood that the 28 patient will regain decision-making capacity, shall be made by an 29 attending physician to a reasonable degree of certainty. 30 3. Concurring opinion. (a) In a residential health care facility, a 31 health or social services practitioner must concur in the determination 32 that an adult patient lacks decision-making capacity. In a general 33 hospital, a second opinion of incapacity by a health or social services 34 practitioner shall be required if the surrogate's decision concerns the 35 withdrawal or withholding of life-sustaining treatment. 36 (b) If an attending physician determines that a patient lacks deci- 37 sion-making capacity because of mental illness or developmental disabil- 38 ity, the attending physician who makes the determination must have, or 39 must consult with a health or social services practitioner who has 40 specialized training or experience in diagnosing or treating mental 41 illness or developmental disabilities of the same or similar nature. 42 (c) Hospitals shall adopt written policies identifying the training 43 and credentials of health or social services practitioners qualified to 44 provide a concurring opinion of incapacity. 45 4. Informing the patient and surrogate. Notice of a determination that 46 the surrogate will make health care decisions because the adult patient 47 has been determined to lack decision-making capacity shall promptly be 48 given: 49 (a) to the patient, where there is any indication of the patient's 50 ability to comprehend the information; and 51 (b) to at least one person on the surrogate list highest in order of 52 priority listed when persons in prior classes are not reasonably avail- 53 able pursuant to subdivision one of section twenty-nine hundred ninety- 54 four-d of this article. 55 5. Limited purpose of determination. A determination made pursuant to 56 this section that an adult patient lacks decision-making capacity shall S. 5393--A 6 1 not be construed as a finding that the patient lacks capacity for any 2 other purpose. 3 6. Priority of patient's decision. Notwithstanding a determination 4 pursuant to this section that an adult patient lacks decision-making 5 capacity, if the patient objects to the determination of incapacity, or 6 to the choice of a surrogate or to a health care decision made by a 7 surrogate or made pursuant to section twenty-nine hundred ninety-four-g 8 of this article, the patient's objection or decision shall prevail 9 unless a court of competent jurisdiction has determined that the patient 10 lacks decision-making capacity or the patient is or has been adjudged 11 incompetent for all purposes. 12 7. Confirmation of lack of decision-making capacity. An attending 13 physician shall confirm the adult patient's continued lack of decision- 14 making capacity before complying with health care decisions made pursu- 15 ant to this article, other than those decisions made at or about the 16 time of the initial determination. A concurring opinion of the patient's 17 continued lack of decision-making capacity shall be required if the 18 subsequent health care decision concerns the withholding or withdrawal 19 of life-sustaining treatment. Health care providers shall not be 20 required to inform the patient or surrogate of the confirmation. 21 § 2994-d. Health care decisions for adult patients by surrogates. 1. 22 Identifying the surrogate. One person from the following list, chosen 23 from the class highest in priority when persons in prior classes are not 24 reasonably available, willing, and competent to act, shall be the surro- 25 gate for an adult patient without decision-making capacity: 26 (a) A guardian authorized to decide about health care pursuant to 27 article eighty-one of the mental hygiene law or a guardian appointed 28 under article seventeen-a of the surrogate's court procedure act; 29 (b) An individual, eighteen years of age or older, who is a member of 30 any one of the classes set forth in this subdivision and who is desig- 31 nated by the person who otherwise would be chosen to act as surrogate 32 based on the priority list established in this subdivision provided that 33 no person in a class higher in priority than the person designated 34 objects; 35 (c) The spouse, if not legally separated from the patient; 36 (d) A son or daughter eighteen years of age or older; 37 (e) A parent; 38 (f) A brother or sister eighteen years of age or older; 39 (g) A close friend or close relative eighteen years of age or older. 40 2. Restrictions on who may be a surrogate. An operator, administrator, 41 or employee of a hospital, a physician who has privileges at the hospi- 42 tal or a health care provider under contract with the hospital may not 43 serve as the surrogate for any adult who is a patient of such hospital, 44 unless such individual is related to the patient by blood, marriage, or 45 adoption, or is a close friend of the patient whose friendship with the 46 patient preceded the patient's admission to the facility. If a physician 47 serves as surrogate, the physician shall not act as the patient's 48 attending physician after his or her authority as surrogate begins. 49 3. Authority and duties of surrogate. (a) Scope of surrogate's author- 50 ity. 51 (i) Subject to the standards and limitations of this article, the 52 surrogate shall have the authority to make any and all health care deci- 53 sions on the adult patient's behalf that the patient could make. 54 (ii) Nothing in this article shall obligate health care providers to 55 seek the consent of a surrogate if an adult patient has already made a 56 decision about the proposed health care, expressed orally or in writing, S. 5393--A 7 1 including a decision about withdrawing or withholding life-sustaining 2 treatment. If an attending physician relies on the patient's prior deci- 3 sion, the physician shall record the prior decision in the patient's 4 record and make reasonable efforts to notify the surrogate prior to 5 implementing the decision. 6 (b) Commencement of surrogate's authority. The surrogate's authority 7 shall commence upon a determination, made pursuant to section twenty- 8 nine hundred ninety-four-c of this article, that the adult patient lacks 9 decision-making capacity. In the event an attending physician determines 10 that the patient has regained decision-making capacity, the authority of 11 the surrogate shall cease. 12 (c) Right and duty to be informed. Notwithstanding any law to the 13 contrary, the surrogate shall have the right to receive medical informa- 14 tion and medical and clinical records necessary to make informed deci- 15 sions about the patient's health care. Health care providers shall 16 provide and the surrogate shall seek information necessary to make an 17 informed decision, including information about the patient's diagnosis, 18 prognosis, the nature and consequences of proposed health care, and the 19 benefits and risks of and alternative to proposed health care. 20 4. Decision-making standards. (a) General standards. The surrogate 21 shall make health care decisions: 22 (i) in accordance with the patient's wishes, including the patient's 23 religious and moral beliefs; or 24 (ii) if the patient's wishes are not reasonably known and cannot with 25 reasonable diligence be ascertained, in accordance with the patient's 26 best interests. 27 (b) An assessment of the patient's best interests shall include: 28 consideration of the dignity and uniqueness of every person; the possi- 29 bility and extent of preserving the patient's life; the preservation, 30 improvement or restoration of the patient's health or functioning; the 31 relief of the patient's suffering; for patients who are pregnant, the 32 impact of treatment decisions on the fetus and on the course and outcome 33 of the pregnancy; and any medical condition and such other concerns and 34 values as a reasonable person in the patient's circumstances would wish 35 to consider. 36 (c) In all cases, the surrogate's assessment of the patient's wishes 37 and best interests shall be patient-centered; health care decisions 38 shall be made on an individualized basis for each patient, and shall be 39 consistent with the values of the patient, including the patient's reli- 40 gious and moral beliefs, to the extent reasonably possible, as well as 41 the likelihood that the patient will regain decision-making capacity. 42 5. Decisions to withhold or withdraw life-sustaining treatment. In 43 addition to the standards set forth in subdivision four of this section, 44 decisions by surrogates to withhold or withdraw life-sustaining treat- 45 ment shall be authorized only if the following conditions are satisfied, 46 as applicable: 47 (a)(i) Treatment would be an excessive burden to the patient and an 48 attending physician determines, with the concurrence of another physi- 49 cian, that, to a reasonable degree of medical certainty and in accord 50 with accepted medical standards, (A) the patient has an illness or inju- 51 ry which can be expected to cause death within six months, whether or 52 not treatment is provided; or (B) the patient is permanently uncon- 53 scious; or 54 (ii) The provision of treatment would involve such pain, suffering or 55 other burden that it would reasonably be deemed inhumane or excessively 56 burdensome under the circumstances and the patient has an irreversible S. 5393--A 8 1 or incurable condition, as determined by an attending physician with the 2 concurrence of another physician to a reasonable degree of medical 3 certainty and in accord with accepted medical standards. 4 (b) In a residential health care facility, a surrogate shall have the 5 authority to refuse life-sustaining treatment under subparagraph (ii) of 6 paragraph (a) of this subdivision only if the ethics review committee, 7 including at least one physician who is not directly responsible for the 8 patient's care, or a court of competent jurisdiction, reviews the deci- 9 sion and determines that it meets the standards set forth in this arti- 10 cle. This requirement shall not apply to a decision to withhold cardiop- 11 ulmonary resuscitation. 12 (c) In a general hospital, as defined in subdivision ten of section 13 twenty-eight hundred one of this chapter, if the attending physician 14 objects to a surrogate's decision, under subparagraph (ii) of paragraph 15 (a) of this subdivision, to forgo nutrition and hydration provided by 16 means of a medical intervention the decision shall not be implemented 17 until the ethics review committee, including at least one physician who 18 is not directly responsible for the patient's care, or a court of compe- 19 tent jurisdiction, reviews the decision and determines that it meets the 20 standards set forth in this subdivision and subdivision four of this 21 section. 22 (d) Providing nutrition and hydration orally, without reliance on a 23 medical intervention, is not health care under this article and is not 24 subject to this article. 25 (e) Expression of decisions. The surrogate shall express a decision to 26 withdraw or withhold life-sustaining treatment either orally or in writ- 27 ing. 28 § 2994-e. Decisions about life-sustaining treatment for minor 29 patients. 1. Authority of parent or guardian. The parent or guardian of 30 a minor patient shall have the authority to decide to withhold or with- 31 draw life-sustaining treatment, subject to the provisions of this 32 section and the standards for surrogate decisions for adults. 33 2. Decision-making standards and procedures for minor patient. (a) An 34 attending physician, in consultation with a minor's parent or guardian, 35 shall determine whether a minor patient has decision-making capacity for 36 a decision to withhold or withdraw life-sustaining treatment. If the 37 minor has such capacity, the minor must consent to withhold or withdraw 38 life-sustaining treatment for decisions pursuant to this section. 39 (b) Where an attending physician has reason to believe that a parent 40 of a minor patient, including a noncustodial parent, has not been 41 informed of a decision to withdraw or withhold life-sustaining treat- 42 ment, an attending physician or someone acting on his or her behalf, 43 shall make reasonable efforts to determine if the uninformed parent has 44 maintained substantial and continuous contact with the minor and, if so, 45 shall make diligent efforts to notify that parent prior to implementing 46 the decision. 47 3. Decision-making standards and procedures for emancipated minor 48 patient. (a) If an attending physician determines that a patient is an 49 emancipated minor patient with decision-making capacity, the patient 50 shall have the authority to decide about life-sustaining treatment. Such 51 authority shall include a decision to withhold or withdraw life-sustain- 52 ing treatment if an attending physician and the ethics review committee 53 determine that the decision accords with the standards for surrogate 54 decisions for adults, and the ethics review committee approves the deci- 55 sion. S. 5393--A 9 1 (b) If the hospital can readily ascertain the identity of the parents 2 or guardian of an emancipated minor patient, the hospital shall notify 3 such persons prior to withholding or withdrawing life-sustaining treat- 4 ment pursuant to this subdivision. 5 § 2994-f. Obligations of attending physician. 1. An attending physi- 6 cian provided with or informed of a decision to withdraw or withhold 7 life-sustaining treatment made pursuant to the standards of this article 8 shall record the decision in the patient's chart, review the medical 9 basis for the decision, and shall either: (a) implement the decision, or 10 (b) promptly make his or her objection to the decision and the reasons 11 for the objection known to the decision-maker, and either make all 12 reasonable efforts to arrange for the transfer of the patient to another 13 physician, if necessary, or promptly refer the matter to the ethics 14 review committee. 15 2. If an attending physician has actual notice of the following 16 objections or disagreements, he or she shall promptly refer the matter 17 to the ethics review committee if the objection or disagreement cannot 18 otherwise be resolved: 19 (a) Any person on the surrogate list objects to a surrogate's deci- 20 sions; or 21 (b) A parent or guardian of a minor patient objects to the decision by 22 another parent or guardian of the minor; or 23 (c) A minor patient refuses life-sustaining treatment, and the minor's 24 parent or guardian wishes the treatment to be provided, or the minor 25 patient objects to an attending physician's determination about deci- 26 sion-making capacity or recommendation about life-sustaining treatment. 27 3. Notwithstanding the provisions of this section, if a surrogate 28 directs the provision of life-sustaining treatment, the denial of which 29 in reasonable medical judgment would be likely to result in the death of 30 the patient, a hospital or individual health care provider that does not 31 wish to provide such treatment shall nonetheless comply with the surro- 32 gate's decision pending either transfer of the patient to a willing 33 hospital or individual health care provider, or judicial review. 34 § 2994-g. Health care decisions for adult patients without surrogates. 35 1. Identifying adult patients without surrogates. Within a reasonable 36 time after admission as an inpatient to the hospital of each adult 37 patient, the hospital shall make reasonable efforts to determine if the 38 patient has appointed a health care agent or if at least one individual 39 is available to serve as the patient's surrogate in the event the 40 patient loses decision-making capacity. If no such potential surrogate 41 is identified, the hospital shall identify, to the extent reasonably 42 possible, the patient's wishes, preferences, or values about pending 43 health care decisions, and shall make a written record of its findings. 44 2. Decision-making standards. Any health care decision made pursuant 45 to this section shall be made in accordance with the standards for 46 surrogate decisions for adults set forth in section twenty-nine hundred 47 ninety-four-d of this article and shall not be based on the financial 48 interests of the hospital or any other health care provider. 49 3. Routine medical treatment. If no surrogate is reasonably available, 50 willing, and competent to act, an attending physician shall be author- 51 ized to decide about routine medical treatment for an adult patient who 52 has been determined to lack decision-making capacity pursuant to section 53 twenty-nine hundred ninety-four-c of this article. Nothing in this 54 subdivision shall require health care providers to obtain specific 55 consent for treatment where specific consent is not otherwise required 56 by law. S. 5393--A 10 1 4. Major medical treatment. If no surrogate is reasonably available, 2 willing, and competent to act, a decision to provide major medical 3 treatment, made in accordance with the following requirements, shall be 4 authorized for an adult patient who has been determined to lack deci- 5 sion-making capacity pursuant to section twenty-nine hundred ninety- 6 four-c of this article. 7 (a) An attending physician shall make a recommendation in consultation 8 with hospital staff directly responsible for the patient's care. 9 (b) In a general hospital, at least one other physician designated by 10 the hospital must concur in the recommendation. 11 (c) In a residential health care facility, the medical director of the 12 facility, or a physician designated by the medical director, must concur 13 in the recommendation; provided that if the medical director is the 14 patient's attending physician, a different physician designated by the 15 residential health care facility must concur in the recommendation. A 16 certified social worker may provide a second opinion for decisions about 17 physical restraints made pursuant to this subdivision. 18 5. Decisions to withhold or withdraw life-sustaining treatment. If no 19 surrogate is reasonably available, willing, and competent to act, a 20 court of competent jurisdiction may make a decision to withhold or with- 21 draw life-sustaining treatment for an adult patient who has been deter- 22 mined to lack decision-making capacity pursuant to section twenty-nine 23 hundred ninety-four-c of this article if the court finds that the deci- 24 sion accords with standards for decisions for adults set forth in subdi- 25 visions four and five of section twenty-nine hundred ninety-four-d of 26 this article. 27 6. Health care without medical benefit. If no surrogate is reasonably 28 available, willing and competent to act, and the attending physician, 29 with concurrence of a second physician designated by the hospital, 30 determines to a reasonable degree of medical certainty that: 31 (a) life-sustaining treatment offers the patient no medical benefit 32 because the patient will die imminently, even if the treatment is 33 provided; and 34 (b) the provision of life-sustaining treatment would violate accepted 35 medical standards, such treatment may be withdrawn or withheld from an 36 adult patient who has been determined to lack decision-making capacity 37 pursuant to section twenty-nine hundred ninety-four-c of this article, 38 without judicial approval. This subdivision shall not apply to any 39 treatment necessary to alleviate pain or discomfort. 40 7. Physician objection. If a physician consulted for concurring opin- 41 ion objects to an attending physician's recommendation or determination 42 made pursuant to this section, or a member of the hospital staff direct- 43 ly responsible for the patient's care objects to an attending physi- 44 cian's recommendation about major medical treatment or treatment without 45 medical benefit, the matter shall be referred to the ethics review 46 committee if it cannot be otherwise resolved. 47 § 2994-h. Decisions for patients transferred from a mental hygiene 48 facility. 1. If a patient is transferred from a mental hygiene facility 49 to a hospital, other than a residential care facility, the hospital 50 shall notify the facility director or the mental health regional direc- 51 tor when: 52 (a) a decision is made, pursuant to subdivision four of section twen- 53 ty-nine hundred ninety-four-g of this article, regarding major medical 54 treatment for an adult without a surrogate; or 55 (b) a surrogate or a parent of a minor child consents to withhold or 56 withdraw life-sustaining treatment for the patient pursuant to this S. 5393--A 11 1 article. A mental hygiene facility director who receives notices pursu- 2 ant to this subdivision shall promptly convey such notices to the mental 3 hygiene legal service. 4 2. Nothing in this article shall affect or diminish the authority of a 5 surrogate decision-making panel convened to decide about major medical 6 treatment pursuant to article eighty of the mental hygiene law. Health 7 care providers may seek authorization for major medical treatment for a 8 patient transferred from a mental hygiene facility who has no surrogate 9 by commencing the process set forth in section twenty-nine hundred nine- 10 ty-four-g of this article, or by commencing a proceeding pursuant to 11 article eighty of the mental hygiene law in any county where such facil- 12 ity is operating. If a proceeding pursuant to article eighty of the 13 mental hygiene law is commenced, the decision and all subsequent deci- 14 sions related to the major medical treatment proposed in the initial 15 article eighty proceeding shall be made pursuant to such article, unless 16 the decision must be expedited to meet the patient's medical needs. 17 § 2994-i. Specific policies for orders not to resuscitate. 1. An order 18 not to resuscitate shall be written in the patient's record. Consent to 19 an order not to resuscitate shall not constitute consent to withhold or 20 withdraw treatment other than cardiopulmonary resuscitation. 21 2. An attending physician may rely on the surrogate's consent for an 22 order not to resuscitate for an adult with decision-making capacity 23 pursuant to this article provided that: 24 (a) The attending physician determines, to a reasonable degree of 25 medical certainty, that the patient would suffer immediate and severe 26 injury from a discussion of cardiopulmonary resuscitation; 27 (b) Another physician concurs that the patient would suffer such inju- 28 ry from a discussion of cardiopulmonary resuscitation; and 29 (c) The attending physician ascertains the wishes of the patient to 30 the extent possible without subjecting the patient to a risk of immedi- 31 ate and severe injury. Where the provisions of this subdivision have 32 been invoked, the attending physician shall reassess the patient's risk 33 of injury from a discussion of cardiopulmonary resuscitation and shall 34 consult the patient regarding resuscitation as soon as the medical basis 35 for not consulting the patient no longer exists. 36 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or 37 guardian of a minor patient may at any time revoke his or her consent to 38 withhold or withdraw life-sustaining treatment by informing a physician 39 or member of the nursing staff of the revocation. 40 2. Any physician informed of a revocation of consent made pursuant to 41 this section shall immediately: 42 (a) record the revocation in the patient's record; 43 (b) cancel any orders or plans of care implementing the decision to 44 withhold or withdraw treatment; and 45 (c) notify the hospital staff directly responsible for the patient's 46 care of the revocation and any cancellations. 47 3. Any member of the nursing staff informed of a revocation made 48 pursuant to this section shall immediately notify a physician of the 49 revocation. 50 § 2994-k. Implementation and review of decisions. 1. Hospitals shall 51 adopt written policies requiring implementation and regular review of 52 decisions to withhold or withdrew life-sustaining treatment in accord- 53 ance with accepted medical standards. Hospitals shall also develop poli- 54 cies in accord with accepted medical standards regarding documentation 55 of clinical determinations and decisions by surrogates and health care 56 providers pursuant to this article. S. 5393--A 12 1 2. If a decision to withhold or withdraw life-sustaining treatment has 2 been made pursuant to this article, and an attending physician deter- 3 mines at any time that the decision is no longer appropriate or author- 4 ized because the patient has regained decision-making capacity or 5 because the patient's condition has otherwise improved, the physician 6 shall immediately: 7 (a) include such determination in the patient's record; 8 (b) cancel any orders or plans of care implementing the decision to 9 withhold or withdraw life-sustaining treatment; 10 (c) notify the person who made the decision to withhold or withdraw 11 treatment; and 12 (d) notify the hospital staff directly responsible for the patient's 13 care of any cancelled orders or plans of care. 14 § 2994-l. Interinstitutional transfers. If a patient with an order or 15 plan of care to withhold or withdraw life-sustaining treatment is trans- 16 ferred from a mental hygiene facility or from a hospital to a different 17 hospital, any such order or plan shall remain effective until an attend- 18 ing physician first examines the transferred patient, whereupon an 19 attending physician must either: 20 1. Issue appropriate orders to continue the prior order or plan. Such 21 orders may be issued without obtaining another consent to withhold 22 or withdraw life-sustaining treatment pursuant to this article; or 23 2. Cancel such order or plan. Before canceling the order or plan the 24 attending physician shall make reasonable efforts to notify the person 25 who made the decision to withhold or withdraw treatment and the hospital 26 staff directly responsible for the patient's care of any such cancella- 27 tion. If such notice cannot reasonably be made prior to canceling the 28 order or plan, the attending physician shall make such notice as soon as 29 reasonably practicable after cancellation. 30 § 2994-m. Ethics review committees. 1. Establishment of an ethics 31 review committee, written policy. Each hospital shall establish at least 32 one ethics review committee or participate in an ethics review committee 33 that serves more than one hospital, and shall adopt a written policy 34 governing committee functions, composition, and procedure, in accordance 35 with the requirements of this section. A hospital may designate an 36 existing committee, or subcommittee thereof, to carry out the functions 37 of the ethics review committee provided the requirements of this section 38 are satisfied. 39 2. Functions of the ethics review committee. (a) The ethics review 40 committee shall consider any health care matter presented to it by a 41 person connected with the case. 42 (b) The ethics review committee response to a health care matter may 43 include: 44 (i) providing advice on the ethical aspects of proposed health care; 45 (ii) making a recommendation about proposed health care; or 46 (iii) providing assistance in resolving disputes about proposed health 47 care. 48 (c) Recommendations and advice by the ethics review committee shall be 49 advisory and nonbinding, except as specified in subdivision five of 50 section twenty-nine hundred ninety-four-d of this article and subdivi- 51 sion three of section twenty-nine hundred ninety-four-e of this article. 52 3. Committee membership. In a residential health care facility at 53 least three committee members must be health care professionals, at 54 least one of whom must be a registered nurse and one of whom must be a 55 physician; and at least two committee members must be members of the 56 residents' council of the facility (or of another facility that partic- S. 5393--A 13 1 ipates in the committee) or be a person not affiliated with the facility 2 who is a family member of a current or former resident at the same or 3 another long-term care facility or a person who has expertise in or a 4 demonstrated commitment to patient rights or to the care and treatment 5 of the elderly or nursing home residents through professional or commu- 6 nity activities, other than activities performed as a health care 7 provider. 8 4. Procedures for ethics review committee. These procedures are 9 required only when the ethics review committee is convened to review a 10 decision by a surrogate to forgo life-sustaining treatment for a patient 11 in a residential health care facility pursuant to paragraph (b) of 12 subdivision five of section twenty-nine hundred ninety-four-d of this 13 article, for a patient in a general hospital pursuant to paragraph (c) 14 of subdivision five of section twenty-nine hundred ninety-four-d of this 15 article, and for emancipated minor patients pursuant to subdivision 16 three of section twenty-nine hundred ninety-four-e of this article, or 17 when a person connected with the case requests the ethics review commit- 18 tee to provide assistance in resolving a dispute about proposed care. 19 Nothing in this section shall bar health care providers from first 20 striving to resolve disputes through less formal means, including the 21 informal solicitation of ethical advice from any source. 22 (a) A person connected with the case may not participate as an ethics 23 review committee member in the consideration of that case. 24 (b) The ethics review committee shall respond promptly, as required by 25 the circumstances, to any request for assistance in resolving a dispute 26 or consideration of a decision to forgo life-sustaining treatment pursu- 27 ant to paragraphs (b) and (c) of subdivision five of section twenty-nine 28 hundred ninety-four-d of this article made by a person connected with 29 the case. The committee shall permit persons connected with the case to 30 present their views to the committee, and to have the option of being 31 accompanied by an advisor when participating in a committee meeting. 32 (c) The ethics review committee shall promptly provide the patient, 33 where there is any indication of the patient's ability to comprehend the 34 information, the surrogate, other persons on the surrogate list directly 35 involved in the decision or dispute regarding the patient's care, any 36 parent or guardian of a minor patient directly involved in the decision 37 or dispute regarding the minor patient's care, an attending physician, 38 the hospital, and other persons the committee deems appropriate, with 39 the following: 40 (i) notice of any pending case consideration concerning the patient, 41 including, for patients, persons on the surrogate list, parents and 42 guardians, information about the review committee's procedures, composi- 43 tion and function; and 44 (ii) the committee's response to the case, including a written state- 45 ment of the reasons for approving or disapproving the withholding or 46 withdrawal of life-sustaining treatment for decisions considered pursu- 47 ant to subparagraph (ii) of paragraph (a) of subdivision five of section 48 twenty-nine hundred ninety-four-d of this article. 49 (d) Following ethics review committee consideration of a case concern- 50 ing the withdrawal or withholding of life-sustaining treatment, treat- 51 ment shall not be withdrawn or withheld until the persons identified in 52 paragraph (c) of this subdivision have been informed of the committee's 53 response to the case. 54 5. Access to medical records and information; patient confidentiality. 55 Ethics review committee members and consultants shall have access to 56 medical information and medical and clinical records necessary to S. 5393--A 14 1 perform their function under this article. Any such information or 2 records disclosed to committee members, consultants, or others shall be 3 kept confidential except to the extent necessary to accomplish the 4 purposes of this article or as otherwise provided by law. 5 6. Ethics review committee confidentiality. Notwithstanding any other 6 provisions of law, the proceedings and records of an ethics review 7 committee shall be kept confidential and shall not be released by 8 committee members, committee consultants, or other persons privy to such 9 proceedings and records; the proceedings and records of an ethics review 10 committee shall not be subject to disclosure or inspection in any 11 manner, including under article six of the public officers law or arti- 12 cle thirty-one of the civil practice law and rules; and, no person shall 13 testify as to the proceedings or records of an ethics review committee, 14 nor shall such proceedings and records otherwise be admissible as 15 evidence in any action or proceeding of any kind in any court or before 16 any other tribunal, board, agency or person, except that: 17 (a) Ethics review committee proceedings and records, in cases where a 18 committee approves or disapproves of the withholding or withdrawal of 19 life-sustaining treatment pursuant to subdivision five of section twen- 20 ty-nine hundred ninety-four-d of this article, or subdivision three of 21 section twenty-nine hundred ninety-four-e of this article, may be 22 obtained by or released to the department; 23 (b) Nothing in this subdivision shall prohibit the patient, the surro- 24 gate, other persons on the surrogate list, or a parent or guardian of a 25 minor patient from voluntarily disclosing, releasing or testifying about 26 committee proceedings or records; and 27 (c) Nothing in this subdivision shall prohibit the state commission on 28 quality of care for the mentally disabled from requiring any informa- 29 tion, report or record from a hospital in accordance with the provisions 30 of section 45.09 of the mental hygiene law. 31 § 2994-n. Conscience objections. 1. Private hospitals. Nothing in this 32 article shall be construed to require a private hospital to honor a 33 health care decision made pursuant to this article if: 34 (a) The decision is contrary to a formally adopted policy of the 35 hospital that is expressly based on sincerely held religious beliefs or 36 sincerely held moral convictions central to the facility's operating 37 principles; 38 (b) The hospital has informed the patient, family, or surrogate of 39 such policy prior to or upon admission, if reasonably possible; and 40 (c) The patient is transferred promptly to another hospital that is 41 reasonably accessible under the circumstances and willing to honor the 42 decision. If the patient's family or surrogate is unable or unwilling to 43 arrange such a transfer, the hospital may intervene to facilitate such a 44 transfer. If such a transfer is not effected, the hospital shall seek 45 judicial relief or honor the decision. 46 2. Individual health care providers. Nothing in this article shall be 47 construed to require an individual as a health care provider to honor a 48 health care decision made pursuant to this article if: 49 (a) the decision is contrary to the individual's sincerely held reli- 50 gious beliefs or sincerely held moral conviction; and 51 (b) the individual health care provider promptly informs the person 52 who made the decision and the hospital of his or her refusal to honor 53 the decision. In such event, the hospital shall promptly transfer 54 responsibility for the patient to another individual health care provid- 55 er willing to honor the decision. The individual health care provider 56 shall cooperate in facilitating such transfer. S. 5393--A 15 1 § 2994-o. Immunity. 1. Ethics review committee. No person shall be 2 subject to criminal or civil liability, or be deemed to have engaged in 3 unprofessional conduct, for acts performed in good faith pursuant to 4 this article as a member of or as a consultant to an ethics review 5 committee or as a participant in an ethics review committee meeting. 6 2. Providers. No health care provider or employee thereof shall be 7 subjected to criminal or civil liability, or be deemed to have engaged 8 in unprofessional conduct, for honoring in good faith a health care 9 decision made pursuant to this article or for other actions taken in 10 good faith pursuant to this article. 11 3. Surrogates, patients and guardians. No person shall be subjected to 12 criminal or civil liability for making a health care decision in good 13 faith pursuant to this article or for other actions taken in good faith 14 pursuant to this article. 15 § 2994-p. Liability for health care costs. Liability for the cost of 16 health care provided to an adult patient pursuant to this article shall 17 be the same as if the health care were provided pursuant to the 18 patient's decision. No person shall become liable for the cost of health 19 care for a minor solely by virtue of making a decision as a guardian of 20 a minor pursuant to this article. 21 § 2994-q. Effect on other rights. 1. Nothing in this article creates, 22 expands, diminishes, impairs, or supersedes any authority that an indi- 23 vidual may have under law to make or express decisions, wishes, or 24 instructions regarding health care on his or her own behalf, including 25 decisions about life-sustaining treatment. 26 2. Nothing in this article shall affect existing law concerning 27 implied consent to health care in an emergency. 28 3. Nothing in this article is intended to permit or promote suicide, 29 assisted suicide, or euthanasia. 30 4. This article shall not affect existing law with respect to sterili- 31 zation. 32 5. Nothing in this article diminishes the duty of parents and legal 33 guardians under existing law to consent to treatment for minors. 34 § 2994-r. Special proceeding authorized; court orders; health care 35 guardian for minor patient. 1. Special proceeding. Any person connected 36 with the case and any member of the hospital ethics review committee may 37 commence a special proceeding in a court of competent jurisdiction with 38 respect to any matter arising under this article. 39 2. Court orders designating surrogate. A court of competent jurisdic- 40 tion may designate any individual from the surrogate list to act as 41 surrogate, regardless of that individual's priority on the list, if the 42 court determines that such appointment would best accord with the 43 patient's wishes or, if the patient's wishes are not reasonably known, 44 with the patient's best interests. Unless otherwise determined by a 45 court, no surrogate decision made prior to an order designating a surro- 46 gate shall be deemed to have been invalid because of the issuance of a 47 designating order. 48 3. Court orders to withhold or withdraw life-sustaining treatment. A 49 court of competent jurisdiction may authorize the withholding or with- 50 drawal of life-sustaining treatment from a person if the court deter- 51 mines that the person lacks decision-making capacity, and withdrawing or 52 withholding the treatment would accord with the standards set forth in 53 subdivision five of section twenty-nine hundred ninety-four-d of this 54 article. 55 4. Health care guardian for a minor patient. (a) The following persons 56 may commence a special proceeding in a court of competent jurisdiction S. 5393--A 16 1 to seek appointment as the health care guardian of a minor patient sole- 2 ly for the purpose of deciding about life-sustaining treatment pursuant 3 to this article: 4 (i) the hospital administrator; 5 (ii) an attending physician; 6 (iii) the local commissioner of social services or the local commis- 7 sioner of health, authorized to make medical treatment decisions for the 8 minor pursuant to section three hundred eighty-three-b of the social 9 services law; or 10 (iv) an individual, eighteen years of age or older, who has assumed 11 care of the minor for a substantial and continuous period of time. 12 (b) Notice of the proceeding shall be given to the persons identified 13 in section one thousand seven hundred five of the surrogate's court 14 procedure act. 15 (c) No appointment shall be made pursuant to this subdivision if a 16 parent or legal guardian of the person is available, willing, and compe- 17 tent to decide about treatment for the minor. 18 (d) Notwithstanding any other provision of law, seeking appointment or 19 being appointed as a health care guardian shall not otherwise affect the 20 legal status or rights of the individual seeking or obtaining such 21 appointment. 22 § 2994-s. Remedy. 1. Any hospital or attending physician that refuses 23 to honor a health care decision by a surrogate made pursuant to this 24 article and in accord with the standards set forth in this article shall 25 not be entitled to compensation for treatment, services, or procedures 26 refused by the surrogate, except that this subdivision shall not apply: 27 (a) when a hospital or physician exercises the rights granted by 28 section twenty-nine hundred ninety-four-n of this article, provided that 29 the physician or hospital promptly fulfills the obligations set forth in 30 section twenty-nine hundred ninety-four-n of this article; 31 (b) while a matter is under consideration by the ethics review commit- 32 tee, provided that the matter is promptly referred to and considered by 33 the committee; 34 (c) in the event of a dispute between individuals on the surrogate 35 list; or 36 (d) if the physician or hospital prevails in any litigation concerning 37 the surrogate's decision to refuse the treatment, services or procedure. 38 Nothing in this section shall determine or affect how disputes among 39 individuals on the surrogate list are resolved. 40 2. The remedy provided in this section is in addition to and cumula- 41 tive with any other remedies available at law or in equity or by admin- 42 istrative proceedings to a patient, a health care agent appointed pursu- 43 ant to article twenty-nine-C of this chapter, or a person authorized to 44 make health care decisions pursuant to this article, including injunc- 45 tive and declaratory relief, and any other provisions of this chapter 46 governing fines, penalties, or forfeitures. 47 § 2994-t. Regulations. 1. The commissioner shall establish such regu- 48 lations as may be necessary to implement this article. 49 2. The commissioner, in consultation with the commissioners of the 50 office of mental health and the office of mental retardation and devel- 51 opmental disabilities, shall promulgate regulations identifying the 52 credentials of health care professionals qualified to provide a concur- 53 ring opinion, pursuant to subdivision three of section twenty-nine 54 hundred ninety-four-c of this article, that a patient lacks decision- 55 making capacity because of mental illness or developmental disability. S. 5393--A 17 1 § 2994-u. Rights to be publicized. The commissioner shall prepare a 2 statement summarizing the rights, duties, and requirements of this arti- 3 cle and shall require that a copy of such statement be furnished to 4 patients or to persons on the surrogate list known to the hospital, or 5 to the parents or guardians of minor patients, at or prior to admission 6 to the hospital, or within a reasonable time thereafter, and to each 7 member of the hospital's staff directly involved with patient care. 8 ARTICLE 29-CCC 9 NONHOSPITAL ORDERS NOT TO RESUSCITATE 10 Section 2994-aa. Definitions. 11 2994-bb. General provisions. 12 2994-cc. Consent to a nonhospital order not to resuscitate. 13 2994-dd. Managing a nonhospital order not to resuscitate. 14 2994-ee. Obligation to honor a nonhospital order not to resusci- 15 tate. 16 2994-ff. Interinstitutional transfer. 17 2994-gg. Immunity. 18 § 2994-aa. Definitions. 1. "Adult" means any person who is eighteen 19 years of age or older, or is the parent of a child or has married. 20 2. "Attending physician" means the physician who has primary responsi- 21 bility for the treatment and care of the patient. Where more than one 22 physician shares such responsibility, any such physician may act as the 23 attending physician pursuant to this article. 24 3. "Capacity" means the ability to understand and appreciate the 25 nature and consequences of a nonhospital order not to resuscitate, 26 including the benefits and disadvantages of such an order, and to reach 27 an informed decision regarding the order. 28 4. "Cardiopulmonary resuscitation" means measures, as specified in 29 regulations promulgated by the commissioner, to restore cardiac function 30 or to support ventilation in the event of a cardiac or respiratory 31 arrest. Such term shall not include measures to improve ventilation and 32 cardiac function in the absence of an arrest. 33 5. "Emergency medical services personnel" means the personnel of a 34 service or agency engaged in providing initial emergency medical assist- 35 ance, including but not limited to first responders, emergency medical 36 technicians, advanced emergency medical technicians and personnel 37 engaged in providing health care at correctional facilities, as that 38 term is defined in subdivision four of section two of the correction 39 law. 40 6. "Health care agent" means a health care agent of the patient desig- 41 nated pursuant to article twenty-nine-C of this chapter. 42 7. "Health or social services practitioner" means a registered profes- 43 sional nurse, nurse practitioner, physician, psychologist or certified 44 social worker licensed or certified pursuant to the education law and 45 qualified to provide a second opinion of capacity as specified in regu- 46 lations promulgated by the commissioner. 47 8. "Hospital" means a general hospital as defined in subdivision ten 48 of section twenty-eight hundred one of this chapter and a residential 49 health care facility as defined in subdivision three of section twenty- 50 eight hundred one of this chapter or a hospital as defined in subdivi- 51 sion ten of section 1.03 of the mental hygiene law or a school named in 52 section 13.17 of the mental hygiene law. 53 9. "Hospital emergency services personnel" means the personnel of the 54 emergency service of a general hospital, as defined in subdivision ten 55 of section twenty-eight hundred one of this chapter, including but not 56 limited to emergency services attending physicians, emergency services S. 5393--A 18 1 registered professional nurses, and registered professional nurses, 2 nursing staff and registered physicians assistants assigned to the 3 general hospital's emergency service. 4 10. "Mental hygiene facility" means a residential facility operated or 5 licensed by the office of mental health or the office of mental retarda- 6 tion and developmental disabilities. 7 11. "Nonhospital order not to resuscitate" means an order that directs 8 emergency medical services personnel and hospital emergency services 9 personnel not to attempt cardiopulmonary resuscitation in the event a 10 patient suffers cardiac or respiratory arrest. 11 12. "Patient" means a person who has been or who may be issued a 12 nonhospital order not to resuscitate. 13 13. "Surrogate" means a person or committee of persons with the 14 authority to consent to an order not to resuscitate pursuant to article 15 twenty-nine-B or twenty-nine-CC of this chapter. 16 § 2994-bb. General provisions. 1. (a) Emergency medical services 17 personnel and hospital emergency services personnel shall honor nonhos- 18 pital orders not to resuscitate, except as provided in section twenty- 19 nine hundred ninety-four-ee of this article. 20 (b) A nonhospital order not to resuscitate shall not constitute an 21 order to withhold or withdraw treatment other than cardiopulmonary 22 resuscitation. 23 2. A nonhospital order not to resuscitate may be issued during hospi- 24 talization to take effect after hospitalization, or may be issued for a 25 person who is not a patient in, or a resident of, a hospital. 26 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An 27 adult with decision-making capacity, a health care agent, or a surrogate 28 may consent to a nonhospital order not to resuscitate orally to the 29 attending physician or in writing. If a patient consents to a nonhospi- 30 tal order not to resuscitate while in a correctional facility, notice of 31 the patient's consent shall be given to the facility director and 32 reasonable efforts shall be made to notify an individual designated by 33 the patient to receive such notice prior to the issuance of the nonhos- 34 pital order not to resuscitate. Notification to the facility director or 35 the individual designated by the patient shall not delay issuance of a 36 nonhospital order not to resuscitate. 37 2. Consent by a health care agent shall be governed by article twen- 38 ty-nine-C of this chapter. 39 3. Consent by a surrogate shall be governed by article twenty-nine-D 40 of this chapter, except that: (a) a second determination of capacity 41 shall be made by a health or social services practitioner as defined in 42 subdivision seven of section twenty-nine hundred ninety-four-aa of this 43 article; and (b) the authority of the ethics review committee set forth 44 in article twenty-nine-CC of this chapter shall apply only to nonhospi- 45 tal orders issued in a hospital. 46 4. (a) When the concurrence of a second physician is sought to fulfill 47 the requirements for the issuance of a nonhospital order not to resusci- 48 tate pursuant to section twenty-nine hundred ninety-four-d of this chap- 49 ter for patients in a correctional facility, such second physician shall 50 be selected by the chief medical officer of the department of 51 corrections or his or her designee. 52 (b) When the concurrence of a second physician is sought to fulfill 53 the requirements for the issuance of a nonhospital order not to resusci- 54 tate pursuant to section twenty-nine hundred ninety-four-d of this chap- 55 ter for hospice and home care patients, such second physician shall be 56 selected by the hospice medical director or hospice nurse coordinator S. 5393--A 19 1 designated by the medical director or by the home care services agency 2 director of patient care services, as appropriate to the patient. 3 5. Consent by a patient or a surrogate for a patient in a mental 4 hygiene facility shall be governed by article twenty-nine-B of this 5 chapter. 6 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The 7 attending physician shall record the issuance of a nonhospital order not 8 to resuscitate in the patient's medical record. 9 2. A nonhospital order not to resuscitate shall be issued upon a stan- 10 dard form prescribed by the commissioner. The commissioner shall also 11 develop a standard bracelet that may be worn by a patient with a nonhos- 12 pital order not to resuscitate to identify that status; provided, howev- 13 er, that no person may require a patient to wear such a bracelet and 14 that no person may require a patient to wear such a bracelet as a condi- 15 tion for honoring a nonhospital order not to resuscitate or for provid- 16 ing health care services. 17 3. An attending physician who has issued a nonhospital order not to 18 resuscitate, and who transfers care of the patient to another physician, 19 shall inform the physician of the order. 20 4. For each patient for whom a nonhospital order not to resuscitate 21 has been issued, the attending physician shall review whether the order 22 is still appropriate in light of the patient's condition each time he or 23 she examines the patient, whether in the hospital or elsewhere, but at 24 least every ninety days, provided that the review need not occur more 25 than once every seven days. The attending physician shall record the 26 review in the patient's medical record provided, however, that a regis- 27 tered nurse who provides direct care to the patient may record the 28 review in the medical record at the direction of the physician. In such 29 case, the attending physician shall include a confirmation of the review 30 in the patient's medical record within fourteen days of such review. 31 Failure to comply with this subdivision shall not render a nonhospital 32 order not to resuscitate ineffective. 33 5. A person who has consented to a nonhospital order not to resusci- 34 tate may at any time revoke his or her consent to the order by any act 35 evidencing a specific intent to revoke such consent. Any health care 36 professional informed of a revocation of consent to a nonhospital order 37 not to resuscitate shall notify the attending physician of the revoca- 38 tion. An attending physician who is informed that a nonhospital order 39 not to resuscitate has been revoked shall record the revocation in the 40 patient's medical record, cancel the order and make diligent efforts to 41 retrieve the form issuing the order, and the standard bracelet, if any. 42 § 2994-ee. Obligation to honor a nonhospital order not to resuscitate. 43 Emergency medical services personnel or hospital emergency services 44 personnel who are provided with a nonhospital order not to resuscitate, 45 or who identify the standard bracelet on the patient's body, shall 46 comply with the terms of such order; provided, however, that: 47 1. Emergency medical services personnel or hospital emergency services 48 personnel may disregard the order if: 49 (a) They believe in good faith that consent to the order has been 50 revoked, or that the order has been cancelled; or 51 (b) Family members or others on the scene, excluding such personnel, 52 object to the order and physical confrontation appears likely; and 53 2. Hospital emergency services physicians may direct that the order be 54 disregarded if other significant and exceptional medical circumstances 55 warrant disregarding the order. S. 5393--A 20 1 § 2994-ff. Interinstitutional transfer. If a patient with a nonhospi- 2 tal order not to resuscitate is admitted to a hospital, the order shall 3 be treated as an order not to resuscitate for a patient transferred from 4 another hospital, and shall be governed by article twenty-nine-CC of 5 this chapter, except that any such order for a patient admitted to a 6 mental hygiene facility shall be governed by article twenty-nine-B of 7 this chapter. 8 § 2994-gg. Immunity. No person shall be subjected to criminal prose- 9 cution or civil liability, or be deemed to have engaged in unprofes- 10 sional conduct, for honoring reasonably and in good faith pursuant to 11 this section a nonhospital order not to resuscitate, for disregarding a 12 nonhospital order pursuant to section twenty-nine hundred ninety-four-ee 13 of this article, or for other actions taken reasonably and in good faith 14 pursuant to this section. 15 § 3. The article heading of article 29-B of the public health law, as 16 added by chapter 818 of the laws of 1987, is amended to read as follows: 17 ORDERS NOT TO RESUSCITATE FOR RESIDENTS OF MENTAL HYGIENE 18 FACILITIES 19 § 4. Subdivisions 7, 10, 13 and 16 of section 2961 of the public 20 health law are REPEALED. 21 § 5. Subdivisions 2, 4, 9 and 19 of section 2961 of the public health 22 law, subdivisions 2 and 19 as amended and subdivision 9 as renumbered by 23 chapter 370 of the laws of 1991 and subdivisions 4 and 9 as added by 24 chapter 818 of the laws of 1987, are amended to read as follows: 25 2. "Attending physician" means the physician selected by or assigned 26 to a patient in a hospital [or, for the purpose of provisions herein 27 governing nonhospital orders not to resuscitate, a patient not in a 28 hospital,] who has primary responsibility for the treatment and care of 29 the patient. Where more than one physician shares such responsibility, 30 any such physician may act as the attending physician pursuant to this 31 article. 32 4. "Cardiopulmonary resuscitation" means measures[, as specified in 33 regulations promulgated by the commissioner,] to restore cardiac func- 34 tion or to support ventilation in the event of a cardiac or respiratory 35 arrest. Cardiopulmonary resuscitation shall not include measures to 36 improve ventilation and cardiac functions in the absence of an arrest. 37 9. "Hospital" means [a general hospital as defined in subdivision ten 38 of section twenty-eight hundred one of this chapter and a residential 39 health care facility as defined in subdivision three of section twenty- 40 eight hundred one of this chapter or] a hospital as defined in subdivi- 41 sion ten of section 1.03 of the mental hygiene law or a school named in 42 section 13.17 of the mental hygiene law. 43 19. "Patient" means a person admitted to a hospital [or, for the 44 purpose of provisions herein governing nonhospital orders not to resus- 45 citate, a person who has or may be issued a nonhospital order not to 46 resuscitate]. 47 § 6. Subdivision 1, paragraph (b) of subdivision 3 and subdivision 4 48 of section 2963 of the public health law, subdivisions 1 and 4 as added 49 by chapter 818 of the laws of 1987, and paragraph (b) of subdivision 3 50 as amended by chapter 23 of the laws of 1994, are amended to read as 51 follows: 52 1. Every adult shall be presumed to have the capacity to make a deci- 53 sion regarding cardiopulmonary resuscitation unless determined otherwise 54 pursuant to this section or pursuant to a court order[. A lack of capac- 55 ity shall not be presumed from the fact that a committee of the property 56 or conservator has been appointed for the adult pursuant to article S. 5393--A 21 1 seventy-seven or seventy-eight of the mental hygiene law, or that a 2 guardian has been appointed pursuant to article seventeen-A of the 3 surrogate's court procedure act] or unless a guardian is authorized to 4 decide about health care for the adult pursuant to article eighty-one of 5 the mental hygiene law. For purposes of this article, the appointment of 6 a guardian pursuant to article seventeen-A of the surrogate's court 7 procedure act shall not create any presumption regarding the patient's 8 decision-making capacity. The attending physician shall not rely on the 9 presumption stated in this subdivision if clinical indicia of incapacity 10 are present. 11 (b) If the attending physician [of a patient in a general hospital] 12 determines that a patient lacks capacity because of mental illness, the 13 concurring determination required by paragraph (a) of this subdivision 14 shall be provided by a physician licensed to practice medicine in New 15 York state, who is a diplomate or eligible to be certified by the Ameri- 16 can Board of Psychiatry and Neurology or who is certified by the Ameri- 17 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 18 certified by that board. 19 4. Notice of a determination that the patient lacks capacity shall 20 promptly be given (a) to the patient, where there is any indication of 21 the patient's ability to comprehend such notice, together with a copy of 22 a statement prepared in accordance with section twenty-nine hundred 23 seventy-eight of this article, and (b) to the person on the surrogate 24 list highest in order of priority listed, when persons in prior subpara- 25 graphs are not reasonably available[, and (c) if the patient is in or is 26 transferred from a mental hygiene facility, to the facility director]. 27 Nothing in this subdivision shall preclude or require notice to more 28 than one person on the surrogate list. 29 § 7. Subdivision 4 of section 2964 of the public health law is 30 REPEALED. 31 § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 32 2965 of the public health law is REPEALED and a new subparagraph (i) is 33 added to read as follows: 34 (i) a guardian authorized to decide about health care pursuant to 35 article eighty-one of the mental hygiene law or a guardian of the person 36 appointed under article seventeen-A of the surrogate's court procedure 37 act; 38 § 9. Paragraph (c) of subdivision 4 and subdivision 5 of section 2965 39 of the public health law are REPEALED. 40 § 10. Paragraph (d) of subdivision 4 of section 2965 of the public 41 health law, as added by chapter 818 of the laws of 1987 and such subdi- 42 vision as renumbered by chapter 370 of the laws of 1991, is amended to 43 read as follows: 44 [(d)] (c) If the attending physician has actual notice of opposition 45 to a surrogate's consent to an order not to resuscitate by any person on 46 the surrogate list[, or, if the patient is in or is transferred from a 47 mental hygiene facility, by the facility director], the [phsyician] 48 physician shall submit the matter to the dispute mediation system and 49 such order shall not be issued or shall be revoked in accordance with 50 the provisions of subdivision three of section twenty-nine hundred 51 seventy-two of this article. 52 § 11. Subdivision 2 of section 2966 of the public health law is 53 REPEALED. 54 § 12. Paragraph (c) of subdivision 2 of section 2967 of the public 55 health law is REPEALED. S. 5393--A 22 1 § 13. Subdivision 1 of section 2970 of the public health law, as 2 amended by chapter 370 of the laws of 1991, is amended to read as 3 follows: 4 1. For each patient for whom an order not to resuscitate has been 5 issued, the attending physician shall review the patient's chart to 6 determine if the order is still appropriate in light of the patient's 7 condition and shall indicate on the patient's chart that the order has 8 been reviewed[: 9 (a) for a patient, excluding outpatients described in paragraph (b) of 10 this subdivision and alternate level of care patients, in a hospital, 11 other than a residential health care facility, at least every seven 12 days; 13 (b) for an outpatient whose order not to resuscitate is effective 14 while the patient receives care in a hospital, each time the attending 15 physician examines the patient, whether in the hospital or elsewhere, 16 provided that the review need not occur more than once every seven days; 17 and 18 (c) for a patient in a residential health care facility or an alter- 19 nate level of care patient in a hospital,] each time the patient is 20 required to be seen by a physician but at least every sixty days. 21 Failure to comply with this subdivision shall not render an order not 22 to resuscitate ineffective. 23 § 14. Section 2971 of the public health law is amended by adding a new 24 subdivision 3 to read as follows: 25 3. For purposes of this section, an order not to resuscitate issued by 26 a general hospital as defined in subdivision ten of section twenty-eight 27 hundred one of this chapter, or by a residential health care facility as 28 defined in subdivision three of section twenty-eight hundred one of this 29 chapter, shall be deemed a hospital order not to resuscitate. 30 § 15. Subdivision 2 of section 2972 of the public health law, as 31 amended by chapter 370 of the laws of 1991, is amended to read as 32 follows: 33 2. The dispute mediation system shall be authorized to mediate any 34 dispute, including disputes regarding the determination of the patient's 35 capacity, arising under this article between the patient and an attend- 36 ing physician or the hospital that is caring for the patient and, if the 37 patient is a minor, the patient's parent, or among an attending physi- 38 cian, a parent, non-custodial parent, or legal guardian of a minor 39 patient, any person on the surrogate list, and the hospital that is 40 caring for the patient [and, where the dispute involves a patient who is 41 in or is transferred from a mental hygiene facility, the facility direc- 42 tor]. 43 § 16. Subdivision 1 of section 2973 of the public health law, as 44 amended by chapter 577 of the laws of 1993, is amended to read as 45 follows: 46 1. The patient, an attending physician, a parent, non-custodial 47 parent, or legal guardian of a minor patient, any person on the surro- 48 gate list, the hospital that is caring for the patient and[, in disputes 49 involving a patient who is in or is transferred from a mental hygiene or 50 correctional facility,] the facility director, may commence a special 51 proceeding pursuant to article four of the civil practice law and rules, 52 in a court of competent jurisdiction, with respect to any dispute aris- 53 ing under this article, except that the decision of a patient not to 54 consent to issuance of an order not to resuscitate may not be subjected 55 to judicial review. In any proceeding brought pursuant to this subdivi- 56 sion challenging a decision regarding issuance of an order not to resus- S. 5393--A 23 1 citate on the ground that the decision is contrary to the patient's 2 wishes or best interests, the person or entity challenging the decision 3 must show, by clear and convincing evidence, that the decision is 4 contrary to the patient's wishes including consideration of the 5 patient's religious and moral beliefs, or, in the absence of evidence of 6 the patient's wishes, that the decision is contrary to the patient's 7 best interests. In any other proceeding brought pursuant to this subdi- 8 vision, the court shall make its determination based upon the applicable 9 substantive standards and procedures set forth in this article. 10 § 17. Section 2977 of the public health law is REPEALED. 11 § 18. Subdivision 16 of section 2961 of the public health law, as 12 amended by chapter 577 of the laws of 1993, is amended to read as 13 follows: 14 16. "Nonhospital order not to resuscitate" means an order, issued in 15 accordance with section twenty-nine hundred [seventy-seven] ninety-four- 16 cc of this article, that directs emergency medical services personnel, 17 hospital emergency service personnel or correctional facilities medical 18 care personnel not to attempt cardiopulmonary resuscitation in the event 19 a patient suffers cardiac or respiratory arrest. 20 § 19. Subdivision 1 of section 2978 of the public health law is 21 REPEALED and subdivision 2, as added by chapter 818 of the laws of 1987, 22 such section as renumbered by chapter 370 of the laws of 1991, is 23 amended to read as follows: 24 [2.] The commissioners of mental health and mental retardation and 25 developmental disabilities[, in consultation with the commissioner of 26 health,] shall establish such regulations as may be necessary for imple- 27 mentation of this article with respect to those persons in mental 28 hygiene facilities. 29 § 20. The opening paragraph of subdivision 1 of section 2979 of the 30 public health law, as added by chapter 818 of the laws of 1987, such 31 section as renumbered by chapter 370 of the laws of 1991, is amended to 32 read as follows: 33 The [commissioner of health, after consultation with the] commission- 34 ers of mental health and mental retardation and developmental disabili- 35 ties[,] shall prepare a statement summarizing the rights, duties, and 36 requirements of this article and shall require that a copy of such 37 statement: 38 § 21. The public health law is amended by adding a new section 4001 to 39 read as follows: 40 § 4001. State council on hospice care. 1. There is hereby created a 41 state council on hospice care, hereinafter known as the "council", to 42 consist of the commissioner, and such other agencies and executive divi- 43 sions heads as the governor shall designate, and nine additional members 44 who shall be appointed as follows: three by the governor; two each by 45 the temporary president of the senate and the speaker of the assembly; 46 and one each by the minority leader of the senate and the minority lead- 47 er of the assembly. The commissioner shall designate one of the 48 appointed members to serve as chairperson. 49 2. The term of office of each appointive member of the council shall 50 be for three years. The appointive members shall continue in office 51 until the expiration of their terms and until their successors are 52 appointed and have qualified. 53 3. Vacancies shall be filled by appointment for the unexpired terms. 54 4. The council shall meet as frequently as its business may require 55 and in any event at least once in each calendar quarter of each year. 56 The members of the council shall receive no compensation for their S. 5393--A 24 1 services as members of the council, but each of them shall be allowed 2 the necessary and actual expenses which he or she shall incur in the 3 performance of his or her duties under this section. 4 5. The council shall advise the governor, the legislature and the 5 department, concerning efforts to promote hospice care as part of the 6 entire health treatment process, to review appropriate roles for hospice 7 programs in implementing articles twenty-nine-C and twenty-nine-CC of 8 this chapter, and shall perform such other related functions as the 9 commissioner may prescribe. 10 6. The council shall, within one year of the effective date of this 11 section and annually thereafter, provide the governor and the legisla- 12 ture with a report concerning the council's activities and efforts to 13 promote hospice care as part of the entire health treatment process, to 14 review hospice programs roles in implementation of articles 15 twenty-nine-C and twenty-nine-CC of this chapter, and on such other 16 related matters as the commissioner may have prescribed. Such report may 17 include recommendations for appropriate legislation, rules and regu- 18 lations, and other actions which would enhance the availability, appro- 19 priate utilization, and coordination of hospice care in this state. 20 § 22. The public health law is amended by adding a new section 4015 to 21 read as follows: 22 § 4015. State plan for hospice care. In furtherance of implementing 23 the intent of the legislature as set forth in this article, the state 24 council on hospice care, established by section four thousand one of 25 this article shall prepare a comprehensive plan to promote hospice care 26 where it is an appropriate treatment decision as part of a patient and 27 family oriented and comprehensive program of care for the terminally 28 ill, and to review appropriate roles for hospice programs in implement- 29 ing articles twenty-nine-C and twenty-nine-CC of this chapter and such 30 other related matters as the commissioner may prescribe. Such plans 31 shall be submitted to the governor, the legislature, the commissioner of 32 the affected state agencies, and other health care providers and the 33 public upon request. 34 § 23. This act shall take effect on the first of June next succeeding 35 the year in which it shall have become a law. Go to top Sitemap Request Information Directions and Maps