A09671 Summary:

BILL NO    A09671 

SAME AS    SAME AS S07153

SPONSOR    Pretlow (MS)

COSPNSR    Gottfried

MLTSPNSR   

Amd SS2983, 2994-c, 2994-cc, 2982 & 2984, Pub Health L; amd S1750-b, SCPA

Relates to conforming and improving the process for determining incapacity.
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A09671 Actions:

BILL NO    A09671 

05/14/2014 referred to health
05/20/2014 reported referred to codes
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A09671 Votes:

There are no votes for this bill in this legislative session.
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A09671 Memo:

BILL NUMBER:A9671

TITLE OF BILL:  An act to amend the public health law and the surro-
gate's court procedure act, in relation to conforming and improving the
process for determining incapacity

PURPOSE OF GENERAL IDEA OF BILL:  This is one of a series of seven
bills, informally referred to as the "Surrogate Decision-Making Improve-
ment Acts." The bills make technical/minor, clarifying and coordinating
amendments and other improvements to the Family Health Care Decisions
Act (FHCDA) (Ch. 8, Laws of 2010) and other laws that govern health care
decisions, including life-sustaining treatment decisions, for patients
who lack decision-making capacity

This bill amends Public Health Law Articles 29-C, 29-CC and 29-CCC, and
Surrogate Court Procedure Act S 1750-b, to conform and improve proce-
dures for determining patient incapacity to make health care decisions.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends PHL Section 2983 to renumber subdivisions 2 - 7.

Section 2: Amends PHL S 2983(1) to make the language and process for
determining incapacity under the health care proxy law more consistent
with the language and process under the Family Health Care Decisions
Act. Clarifies that a concurring determination is required only for
life-sustaining treatment decisions, even if the determination is based
on a patient's mental illness or developmental disability.

Adds S 2983(2) to change the qualifications necessary for a professional
to determine that a patient lacks capacity as a result of a develop-
mental disability by providing that, for a patient in a hospital, nurs-
ing home or hospice, either the attending physician must be or must
consult with either a health or social services practitioner qualified
by training or experience to make such determination in accordance with
written policies adopted by the hospital, nursing home or hospice, or a
person who met the previous qualification requirements.

Section 3 amends PHL S 2994-c(3) to clarify that a concurring determi-
nation is required only for a surrogate decision to withdraw or withhold
life-sustaining treatment, including for cases in nursing homes, and
including cases in which the determination is based on a patient's
mental illness or developmental disability. The section also changes the
qualifications needed to determine that a patient lacks capacity as a
result of a developmental disability, consistent with Section 2.

Section 4 amends PHL S 2994-cc, subdivs. 3, 4 and 5, to eliminate redun-
dant language and to change "concurrence of a second physician" to
"concurrence of a health or social services practitioner." Clarify that
the attending physician is providing an "initial" determination of inca-
pacity, not a confirming determination; clarify that either the attend-
ing physician or the concurring physician must have special qualifica-

tions related to developmental disabilities only if the attending
physician initially determined that the patient lacked capacity because
of the developmental disability; change the qualifications necessary for
a professional to determine that a patient in a hospital, nursing home
or hospice lacks capacity as a result of a developmental disability,
consistent with Section 2.

Sections 6, 7 and 8 make technical conforming changes to sections 2982,
2984 and 2983 of the public health law.

Section 9 is the effective date: is the effective date: ninety days
after it becomes a law.

JUSTIFICATION:  By enacting Chapter 8 of the Laws of 2010, the Family
Health Care Decisions Act, the Legislature significantly improved the
laws in New York relating to decision-making for patients who lack
capacity and who do not have a health care agent. Specifically, the
FHCDA clarified the authority of a close family member or close friend
to consent to treatment for such patients, and allowed such person to
direct the withdrawal or withholding of life-sustaining treatment in
limited and clearly defined circumstances, based on sound standards.

This bill draws upon growing experience with the FHCDA, and its inter-
action with other health care decision-making laws. It makes technical
and coordinating amendments and other improvements to those laws with
respect to determining the incapacity of patients to make health care
decisions.

One important improvement relates o the qualifications of professionals
who can determine the incapacity of a patient based on developmental
disability. Hospitals and nursing homes have found it extremely diffi-
cult to locate professionals with the special qualifications now
required by this law for a determining the incapacity of a patient with
a developmental disability - especially in urgent or off-hours situ-
ations. This amendment would let those types of providers establish the
necessary qualifications for that service, just as they determine quali-
fications for other professional services in their institutions and
programs.

PRIOR LEGISLATIVE HISTORY: 2013: A.7371 reported referred to codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect ninety days after the date on
which this act shall have become a law. The amendments to article 29-C
of the public health law shall apply to decisions made pursuant to
health care proxies created prior to this act becoming law as well as
those created thereafter.
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A09671 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         9671

                                 I N  A S S E M B L Y

                                     May 14, 2014
                                      ___________

       Introduced  by  M. of A. PRETLOW, GOTTFRIED -- read once and referred to
         the Committee on Health

       AN ACT to amend the public health law and the surrogate's  court  proce-
         dure  act,  in  relation  to  conforming and improving the process for
         determining incapacity

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Subdivisions  2,  3, 4, 5, 6 and 7 of section 2983 of the
    2  public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
    3    S 2. Subdivision 1 of section 2983 of the public health law, as  added
    4  by  chapter 752 of the laws of 1990, paragraph (b) as amended by chapter
    5  23 of the laws of 1994 and paragraph (c) as amended by section 7 of part
    6  J of chapter 56 of the laws of 2012, is amended to read as follows:
    7    1. [Determination] INITIAL DETERMINATION by attending physician.  [(a)
    8  A]  AN  INITIAL  determination  that  a principal lacks capacity to make
    9  health care decisions shall be made by  the  attending  physician  to  a
   10  reasonable  degree of medical certainty. The determination shall be made
   11  in writing and shall contain such attending physician's opinion  regard-
   12  ing  the  cause  and nature of the principal's incapacity as well as its
   13  extent and probable duration. The determination shall be included in the
   14  patient's medical record. [For a decision to withdraw or withhold  life-
   15  sustaining  treatment,  the  attending  physician who makes the determi-
   16  nation that a principal lacks capacity to  make  health  care  decisions
   17  must  consult with another physician to confirm such determination. Such
   18  consultation shall also be included within the patient's medical record]
   19  A PHYSICIAN WHO HAS BEEN APPOINTED AS A PATIENT'S AGENT SHALL  NOT  MAKE
   20  THE  DETERMINATION  OF  THE PATIENT'S CAPACITY TO MAKE HEALTH CARE DECI-
   21  SIONS.
   22    2. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT  DECISIONS.
   23  FOR  A  DECISION  TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE
   24  FOLLOWING SHALL APPLY:
   25    (A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY  SHALL  BE
   26  SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR
   27  SOCIAL  SERVICES  PRACTITIONER. A CONCURRING DETERMINATION SHALL INCLUDE

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13621-02-4
       A. 9671                             2

    1  AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE  PATIENT'S  INCAPACITY  AND
    2  THE  LIKELIHOOD  THAT  THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY,
    3  AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD.  HOSPITALS  SHALL
    4  ADOPT  WRITTEN  POLICIES  IDENTIFYING  THE  TRAINING  AND CREDENTIALS OF
    5  HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE  CONCURRING
    6  DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS.
    7    (b)  If  an  attending physician of a patient in a general hospital or
    8  mental hygiene facility determines that a patient lacks capacity because
    9  of mental illness, [the attending physician who makes the  determination
   10  must  be,  or  must  consult, for the purpose of confirming the determi-
   11  nation, with a qualified psychiatrist]  EITHER  SUCH  PHYSICIAN  OR  THE
   12  CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A PHYSI-
   13  CIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE
   14  OR  ELIGIBLE  TO  BE  CERTIFIED  BY THE AMERICAN BOARD OF PSYCHIATRY AND
   15  NEUROLOGY OR WHO IS CERTIFIED  BY  THE  AMERICAN  OSTEOPATHIC  BOARD  OF
   16  NEUROLOGY AND PSYCHIATRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD. A
   17  record  of  such consultation shall be included in the patient's medical
   18  record.
   19    (c) If the attending physician determines that a patient lacks capaci-
   20  ty because of a developmental disability, [the attending  physician  who
   21  makes  the  determination  must  be, or must consult, for the purpose of
   22  confirming the determination, with] EITHER SUCH PHYSICIAN OR THE CONCUR-
   23  RING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS:    EITHER  (I)
   24  FOR  A  PATIENT  IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES PRACTITIONER
   25  QUALIFIED BY TRAINING  OR  EXPERIENCE  TO  MAKE  SUCH  DETERMINATION  IN
   26  ACCORDANCE  WITH  THE  WRITTEN POLICIES ADOPTED BY THE HOSPITAL; OR (II)
   27  FOR A PATIENT IN ANY SETTING, a physician or clinical  psychologist  who
   28  either is employed by a developmental disabilities services office named
   29  in section 13.17 of the mental hygiene law, or who has been employed for
   30  a minimum of two years to render care and service in a facility operated
   31  or licensed by the office for people with developmental disabilities, or
   32  has  been  approved by the commissioner of developmental disabilities in
   33  accordance with regulations promulgated by such commissioner. Such regu-
   34  lations shall require that a physician or clinical psychologist  possess
   35  specialized training or three years experience in treating developmental
   36  disabilities.  A  record  of  such consultation shall be included in the
   37  patient's medical record.
   38    [(d) A physician who has been appointed as a patient's agent shall not
   39  make the determination of the patient's capacity  to  make  health  care
   40  decisions.]
   41    S  3.  Subdivision  3  of  section 2994-c of the public health law, as
   42  added by chapter 8 of the laws of 2010,  paragraph  (b)  as  amended  by
   43  chapter  167  of the laws of 2011, subparagraph (ii) of paragraph (c) as
   44  amended by section 8 of part J of chapter 56 of the  laws  of  2012,  is
   45  amended to read as follows:
   46    3.  Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS.
   47  FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING  TREATMENT,  THEN
   48  THE  FOLLOWING  SHALL APPLY: (a) An initial determination that a patient
   49  lacks decision-making capacity shall be subject to a concurring determi-
   50  nation, independently made, [where required by this  subdivision]  BY  A
   51  HEALTH  OR  SOCIAL  SERVICES PRACTITIONER EMPLOYED OR OTHERWISE FORMALLY
   52  AFFILIATED WITH THE HOSPITAL. A concurring determination  shall  include
   53  an  assessment  of  the cause and extent of the patient's incapacity and
   54  the likelihood that the patient will  regain  decision-making  capacity,
   55  and  shall  be included in the patient's medical record. Hospitals shall
   56  adopt written policies  identifying  the  training  and  credentials  of
       A. 9671                             3

    1  health  or social services practitioners qualified to provide concurring
    2  determinations of incapacity.
    3    (b)  [(i)  In  a  residential health care facility, a health or social
    4  services practitioner employed by or otherwise formally affiliated  with
    5  the facility must independently determine whether an adult patient lacks
    6  decision-making capacity.
    7    (ii)  In  a  general hospital a health or social services practitioner
    8  employed by or otherwise formally  affiliated  with  the  facility  must
    9  independently  determine  whether an adult patient lacks decision-making
   10  capacity if the surrogate's decision concerns the  withdrawal  or  with-
   11  holding of life-sustaining treatment.
   12    (iii)]  With respect to decisions regarding hospice care for a patient
   13  in a general hospital or residential health care facility, the health or
   14  social services practitioner must be employed by or  otherwise  formally
   15  affiliated  with the general hospital or residential health care facili-
   16  ty.
   17    (c) (i) If the attending physician makes an initial determination that
   18  a patient lacks decision-making  capacity  because  of  mental  illness,
   19  either  such  physician  OR  THE  CONCURRING  PRACTITIONER must have the
   20  following qualifications[, or another physician with the following qual-
   21  ifications must independently determine whether the patient lacks  deci-
   22  sion-making  capacity]: a physician licensed to practice medicine in New
   23  York state, who is a diplomate or eligible to be certified by the Ameri-
   24  can Board of Psychiatry and Neurology or who is certified by the  Ameri-
   25  can  Osteopathic  Board of Neurology and Psychiatry or is eligible to be
   26  certified by that board. A record of such consultation shall be included
   27  in the patient's medical record.
   28    (ii) If the attending physician makes an initial determination that  a
   29  patient  lacks decision-making capacity because of a developmental disa-
   30  bility, either such physician OR THE CONCURRING PRACTITIONER  must  have
   31  the  following qualifications[, or another professional with the follow-
   32  ing qualifications must  independently  determine  whether  the  patient
   33  lacks  decision-making capacity]: EITHER (A) A HEALTH OR SOCIAL SERVICES
   34  PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE  SUCH  DETERMI-
   35  NATION  IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL,
   36  OR (B) a physician or clinical psychologist who either is employed by  a
   37  developmental disabilities services office named in section 13.17 of the
   38  mental  hygiene law, or who has been employed for a minimum of two years
   39  to render care and service in a facility operated  or  licensed  by  the
   40  office  for people with developmental disabilities, or has been approved
   41  by the commissioner of developmental  disabilities  in  accordance  with
   42  regulations  promulgated  by  such  commissioner. Such regulations shall
   43  require that a physician or clinical  psychologist  possess  specialized
   44  training  or  three years experience in treating developmental disabili-
   45  ties. A record of such consultation shall be included in  the  patient's
   46  medical record.
   47    (d)  If  an  attending physician has determined that the patient lacks
   48  decision-making capacity and if the health or  social  services  practi-
   49  tioner  consulted  for  a  concurring  determination  disagrees with the
   50  attending physician's determination, the matter shall be referred to the
   51  ethics review committee if it cannot otherwise be resolved.
   52    S 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
   53  subdivision 3 as added by chapter 8 of the laws of 2010 and  subdivision
   54  4  as amended by section 131 of subpart B of part C of chapter 62 of the
   55  laws of 2011, are amended to read as follows:
       A. 9671                             4

    1    3. Consent by a surrogate shall be governed by article  twenty-nine-CC
    2  of  this  chapter,  except that[: (a) a second determination of capacity
    3  shall be made by a health or social services practitioner; and (b)]  the
    4  authority   of   the  ethics  review  committee  set  forth  in  article
    5  twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
    6  issued in a hospital OR HOSPICE.
    7    4. (a) When the concurrence of a second [physician] HEALTH  OR  SOCIAL
    8  SERVICES  PRACTITIONER  is  sought  to  fulfill the requirements for the
    9  issuance of a nonhospital order not to resuscitate  for  patients  in  a
   10  correctional facility, such second [physician] HEALTH OR SOCIAL SERVICES
   11  PRACTITIONER  shall  be  selected  by  the  chief medical officer of the
   12  department of corrections and community supervision or his or her desig-
   13  nee.
   14    (b) When the concurrence of a  second  [physician]  HEALTH  OR  SOCIAL
   15  SERVICES  PRACTITIONER  is  sought  to  fulfill the requirements for the
   16  issuance of a nonhospital order not to  resuscitate  for  [hospice  and]
   17  home  care  patients,  such second [physician] HEALTH OR SOCIAL SERVICES
   18  PRACTITIONER shall be selected  [by  the  hospice  medical  director  or
   19  hospice  nurse coordinator designated by the medical director or] by the
   20  home care services agency director of patient care services[, as  appro-
   21  priate to the patient].
   22    S  5.  Paragraph  (a) of subdivision 4 of section 1750-b of the surro-
   23  gate's court procedure act, as added by chapter 500 of the laws of 2002,
   24  subparagraph (i) as amended by section 18 of part J of chapter 56 of the
   25  laws of 2012, is amended to read as follows:
   26    (a) The attending physician, as defined in subdivision two of  section
   27  twenty-nine  hundred  eighty  of  the  public health law, [must confirm]
   28  SHALL INITIALLY DETERMINE to a reasonable degree  of  medical  certainty
   29  that  the  [mentally  retarded]  DEVELOPMENTALLY  DISABLED  person lacks
   30  capacity to make health care decisions. The determination thereof  shall
   31  be included in the [mentally retarded] DEVELOPMENTALLY DISABLED person's
   32  medical  record,  and  shall  contain such attending physician's opinion
   33  regarding the cause and  nature  of  the  [mentally  retarded]  DEVELOP-
   34  MENTALLY DISABLED person's incapacity as well as its extent and probable
   35  duration.  The  attending  physician  who  makes [the confirmation] SUCH
   36  INITIAL  DETERMINATION  shall  consult  with  another  physician,  or  a
   37  licensed psychologist, to further confirm the [mentally retarded] DEVEL-
   38  OPMENTALLY  DISABLED  person's  lack of capacity. [The] IF THE ATTENDING
   39  PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT  LACKS  CAPACITY
   40  TO  MAKE HEALTH CARE DECISIONS BECAUSE OF DEVELOPMENTAL DISABILITY, THEN
   41  THE attending physician [who makes the confirmation,] or  the  physician
   42  or  licensed  psychologist with whom the attending physician consults[,]
   43  EITHER (I) FOR A PATIENT IN A GENERAL HOSPITAL, RESIDENTIAL HEALTH  CARE
   44  FACILITY  OR  HOSPICE, must [(i)] BE QUALIFIED BY TRAINING OR EXPERIENCE
   45  TO MAKE SUCH DETERMINATION, IN ACCORDANCE WITH POLICIES ADOPTED  BY  THE
   46  GENERAL  HOSPITAL,  RESIDENTIAL HEALTH CARE FACILITY OR HOSPICE; OR (II)
   47  FOR A PATIENT IN ANY SETTING, MUST (A) be employed  by  a  developmental
   48  disabilities  services  office  named  in  section  13.17  of the mental
   49  hygiene law or employed by the  office  for  people  with  developmental
   50  disabilities  to provide treatment and care to people with developmental
   51  disabilities, or [(ii)] (B) have been employed  for  a  minimum  of  two
   52  years  to  render  care  and  service in a facility or program operated,
   53  licensed or authorized by the office [of  mental  retardation  and]  FOR
   54  PEOPLE  WITH  developmental  disabilities,  or  [(iii)]  (C)  have  been
   55  approved by the commissioner of [mental retardation  and]  developmental
   56  disabilities  in accordance with regulations promulgated by such commis-
       A. 9671                             5

    1  sioner. Such regulations shall require  that  a  physician  or  licensed
    2  psychologist  possess  specialized training or three years experience in
    3  treating [mental retardation] DEVELOPMENTAL DISABILITIES.  A  record  of
    4  such  consultation shall be included in the [mentally retarded] DEVELOP-
    5  MENTALLY DISABLED person's medical record.
    6    S 6. Subdivision 4 of section  2982  of  the  public  health  law,  as
    7  amended  by  chapter  370  of  the  laws  of 1991, is amended to read as
    8  follows:
    9    4. Priority over other surrogates. Health care decisions by  an  agent
   10  on  a  principal's  behalf  pursuant to this article shall have priority
   11  over decisions by any other person, except as otherwise provided in  the
   12  health  care  proxy or in subdivision [five] SIX of section two thousand
   13  nine hundred eighty-three of this article.
   14    S 7. Subdivision 2 of section 2984 of the public health law, as  added
   15  by chapter 752 of the laws of 1990, is amended to read as follows:
   16    2. A health care provider shall comply with health care decisions made
   17  by  an  agent in good faith under a health care proxy to the same extent
   18  as if such decisions had been made by  the  principal,  subject  to  any
   19  limitations  in  the health care proxy and pursuant to the provisions of
   20  subdivision [five] SIX of section two thousand nine hundred eighty-three
   21  of this article.
   22    S 8.  Paragraph (b) of subdivision 7 of section  2983  of  the  public
   23  health  law, as added by chapter 752 of the laws of 1990 and such subdi-
   24  vision as renumbered by section one of this act, is amended to  read  as
   25  follows:
   26    (b)  The  notice requirements set forth in subdivision [three] FOUR of
   27  this section shall not apply to the confirmation required by this subdi-
   28  vision.
   29    S 9.  This act shall take effect on the ninetieth day after  it  shall
   30  have  become  a law, provided that the amendments to article 29-C of the
   31  public health law made by section two of this act  shall  apply  to  the
   32  decisions  made  pursuant  to  health  care proxies created prior to the
   33  effective date of this act as well as those created thereafter.
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