NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9647A
SPONSOR: Clark (MS)
TITLE OF BILL: An act to amend the public health law, in relation to
making technical, minor and coordinating amendments regarding health
care agents and proxies, decisions under the family health care deci-
sions act, and non-hospital orders not to resuscitate
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 makes technical changes to
the FHCDA and other laws.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends PHL § 2980, subdivs. 4 and 10: to clarify that the
provision of nutrition and hydration orally, without reliance on medical
treatment, is not "health care" within the meaning of the article, as
stated in the Family Health Care Decisions Act (FHCDA); and to substi-
tute the name, "office for people with developmental disabilities"
(hereinafter OPWDD) for the former name, office of mental retardation
and developmental disabilities" (hereinafter, OMRDD).
Section 2 amends PHL § 2981(b) to delete the outdated term "committee"
and to insert the correct reference to MHL Article 81.
Section 3 amends PHL § 2982(2) to add "physician assistant and nurse
practitioner" to the list of professionals, one of whom an agent must
consult with before making a decision.
Section 4 amends PHL § 2983(4) to replace outdated references to "the
conservator for, or committee of a principal with a reference to "the
guardian, if any, for the principal."
Section 5 amends PHL § 2991 to substitute OPWDD for OMRDD.
Section 6 amends PHL § 2992 to replace outdated references to "the
conservator for, or committee of a principal with the correct reference
to "the guardian" of the principal.
Section 7 amends § 2993 to substitute OPWDD for OMRDD.
Section 8 amends three subdivisions in PHL § 2994-a (Definitions):
Amends "Health or social services practitioner" to include "licensed
master social worker." Substitutes OPWDD for OMRDD. Changes "the hospi-
tal administrator" to "a hospital administrator."
Section 9 amends PHL § 2994-b(3)(a) to change "mental retardation or a
developmental disability" to "a developmental disability." Corrects a
Section 10 amends PHL § 2994-e to clarify that the obligation a hospital
has to notify the parents or guardian of an emancipated minor is to make
"diligent efforts" to notify such persons, and to require documentation
of the basis for the determination of emancipation and capacity, and of
the diligent efforts.
Section 11 amends PHL § 2994-m(4)(b)(iv) to clarify that the obligation
an ethics committee has to notify certain persons is to make "diligent
efforts" to notify such persons, and to document such efforts. Section
20 amends PHL § 2994-t(2) to substitute OPWDD for OMRDD.
Section 12 amends PHL § 2994-t to correct references to the commission-
ers of OMH and OPWDD.
Section 13 amends PHL § 2994-u to direct the commissioner of health to
require that a copy of the statement of rights under this article be
furnished "to a patient or to the surrogate, or to the parent or guardi-
an of a minor patient, at or prior to admission to the hospital, or
within a reasonable time thereafter, and to any person on the surrogate
list who requests a copy of such statement from the hospital. The state-
ment shall also be made available to the hospital clinical staff"
Section 14 directs the commissioner of health to revise the statement of
rights that hospitals are required to post (known as the Patient's Bill
of Rights) by replacing the clause regarding orders not to resuscitate
with a statement about a broader range health care decision-making
Section 15 amends § 2994-aa subdivisions 12 and 13 and adds 14-a : to,
substitute OPWDD for OMRDD, to provide that a nonhospital order not to
resuscitate also applies to home care services agency personnel and
school health personnel, and to define "school health personnel.
Section 16 amends PHL § 2994-bb(1)(a) to make the nonhospital DNR
provisions applicable to school health personnel.
Section 17 amends § 2994-dd(2) to delete a reference to the commission-
er's obligation to develop a standard DNR bracelet, and to refer to a
standard bracelet "or other article", and amends § 2994- dd.6 to allow
alternate forms for nonhospital DNR orders in developmental disability
Section 18 amends PHL § 2994-gg to substitute the word "article" for the
word "section" in two places.
Section 19 is the effective date: ninety days after it becomes a law.
JUSTIFICATION: This bill amends the Family Health Care Decisions Act
(Ch.8, Laws of 2010) (FHCDA). It makes technical, minor and coordinating
amendments to related laws.
PRIOR LEGISLATIVE HISTORY: 2013: A.7371 reported referred to codes
2014: A. 9647 reported 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.
STATE OF NEW YORK
May 14, 2014
Introduced by M. of A. CLARK, GOTTFRIED -- read once and referred to the
Committee on Health -- reported and referred to the Committee on Codes
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the public health law, in relation to making technical,
minor and coordinating amendments regarding health care agents and
proxies, decisions under the family health care decisions act, and
non-hospital orders not to resuscitate
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 4 and 10 of section 2980 of the public health
2 law, subdivision 4 as added by chapter 752 of the laws of 1990, subdivi-
3 sion 10 as amended by chapter 23 of the laws of 1994, are amended to
4 read as follows:
5 4. "Health care" means any treatment, service or procedure to diagnose
6 or treat an individual's physical or mental condition. Providing nutri-
7 tion or hydration orally, without reliance on medical treatment, is not
8 health care under this article and is not subject to this article.
9 10. "Mental hygiene facility" means a residential facility, excluding
10 family care homes, operated or licensed by the office of mental health
11 or the office [of mental retardation and] for people with developmental
13 § 2. Paragraph (b) of subdivision 1 of section 2981 of the public
14 health law, as added by chapter 752 of the laws of 1990, is amended to
15 read as follows:
16 (b) For the purposes of this section, every adult shall be presumed
17 competent to appoint a health care agent unless such person has been
18 adjudged incompetent or otherwise adjudged not competent to appoint a
19 health care agent, or unless a [committee or] guardian of the person has
20 been appointed for the adult pursuant to article [seventy-eight] eight-
21 y-one of the mental hygiene law or article seventeen-A of the surro-
22 gate's court procedure act.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
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1 § 3. Subdivision 2 of section 2982 of the public health law, as
2 amended by chapter 230 of the laws of 2004, is amended to read as
4 2. Decision-making standard. After consultation with a licensed physi-
5 cian, registered nurse, physician assistant, nurse practitioner,
6 licensed psychologist, licensed master social worker, or a licensed
7 clinical social worker, the agent shall make health care decisions: (a)
8 in accordance with the principal's wishes, including the principal's
9 religious and moral beliefs; or (b) if the principal's wishes are not
10 reasonably known and cannot with reasonable diligence be ascertained, in
11 accordance with the principal's best interests; provided, however, that
12 if the principal's wishes regarding the administration of artificial
13 nutrition and hydration are not reasonably known and cannot with reason-
14 able diligence be ascertained, the agent shall not have the authority to
15 make decisions regarding these measures.
16 § 4. Subdivision 3 of section 2983 of the public health law, as added
17 by chapter 752 of the laws of 1990, is amended to read as follows:
18 3. Notice of determination. Notice of a determination that a principal
19 lacks capacity to make health care decisions shall promptly be given:
20 (a) to the principal, orally and in writing, where there is any indi-
21 cation of the principal's ability to comprehend such notice; (b) to the
22 agent; (c) if the principal is in or is transferred from a mental
23 hygiene facility, to the facility director; and (d) to the [conservator
24 for, or committee of, the principal] guardian, if any.
25 § 5. Subdivision 2 of section 2991 of the public health law, as added
26 by chapter 752 of the laws of 1990, is amended to read as follows:
27 2. Such procedures shall be established in accordance with regulations
28 issued by the commissioners of health, mental health, and [mental retar-
29 dation and] developmental disabilities for facilities subject to their
30 respective regulatory authorities.
31 § 6. The opening paragraph of section 2992 of the public health law,
32 as added by chapter 752 of the laws of 1990, is amended to read as
34 The health care provider, the [conservator for, or committee] guardian
35 of the principal under article eighty-one of the mental hygiene law or
36 article seventeen-A of the surrogate's court procedure act, members of
37 the principal's family, a close friend of the principal as defined in
38 subdivision [five] four of section [two thousand nine] twenty-nine
39 hundred [sixty-one] ninety-four-a of this chapter, or the commissioner
40 [of health], the commissioner of mental health, or [mental retardation
41 and] the commissioner of developmental disabilities may commence a
42 special proceeding pursuant to article four of the civil practice law
43 and rules, in a court of competent jurisdiction, with respect to any
44 dispute arising under this article, including, but not limited to, a
45 proceeding to:
46 § 7. Section 2993 of the public health law, as added by chapter 752 of
47 the laws of 1990, is amended to read as follows:
48 § 2993. Regulations. The commissioner [of health], in consultation
49 with the commissioners of [the office of] mental health and [the office
50 of mental retardation and] developmental disabilities, shall establish
51 such regulations as may be necessary for the implementation of this
52 article, subject to the provisions of subdivision two of section [two
53 thousand nine] twenty-nine hundred ninety-one of this article.
54 § 8. Subdivisions 17, 20 and 26 of section 2994-a of the public health
55 law, as added by chapter 8 of the laws of 2010, are amended to read as
A. 9647--A 3
1 17. "Health or social [service] services practitioner" means a regis-
2 tered professional nurse, nurse practitioner, physician, physician
3 assistant, psychologist, licensed master social worker or licensed clin-
4 ical social worker, licensed or certified pursuant to the education law
5 acting within his or her scope of practice.
6 20. "Mental hygiene facility" means a facility operated or licensed by
7 the office of mental health or the office [of mental retardation and]
8 for people with developmental disabilities as defined in subdivision six
9 of section 1.03 of the mental hygiene law.
10 26. "Person connected with the case" means the patient, any person on
11 the surrogate list, a parent or guardian of a minor patient, [the] a
12 hospital administrator, an attending physician, any other health or
13 social services practitioner who is or has been directly involved in the
14 patient's care, and any duly authorized state agency, including the
15 facility director or regional director for a patient transferred from a
16 mental hygiene facility and the facility director for a patient trans-
17 ferred from a correctional facility.
18 § 9. The opening paragraph and paragraph (a) of subdivision 3 of
19 section 2994-b of the public health law, as added by chapter 8 of the
20 laws of 2010, are amended to read as follows:
21 Prior to seeking or relying upon a health care decision by a surrogate
22 for a patient under this article, if the attending physician has reason
23 to believe that the patient has a history of receiving services for
24 [mental retardation or] a developmental disability; it reasonably
25 appears to the attending physician that the patient has [mental retarda-
26 tion or] a developmental disability; or the attending physician has
27 reason to believe that the patient has been transferred from a mental
28 hygiene facility operated or licensed by the office of mental health,
29 then such physician shall make reasonable efforts to determine whether
30 paragraphs (a), (b) or (c) of this subdivision are applicable:
31 (a) If the patient has a guardian appointed by a court pursuant to
32 article seventeen-A of the surrogate's court procedure act, health care
33 decisions for the patient shall be governed by section seventeen hundred
34 fifty-b of the surrogate's court [proceedure] procedure act and not by
35 this article.
36 § 10. Paragraphs (a) and (b) of subdivision 3 of section 2994-e of the
37 public health law, as added by chapter 8 of the laws of 2010, are
38 amended to read as follows:
39 (a) If an attending physician determines that a patient is an emanci-
40 pated minor patient with decision-making capacity and documents the
41 basis for such determination in the patient's medical record, the
42 patient shall have the authority to decide about life-sustaining treat-
43 ment. Such authority shall include a decision to withhold or withdraw
44 life-sustaining treatment if an attending physician and the ethics
45 review committee determine that the decision accords with the standards
46 for surrogate decisions for adults, and the ethics review committee
47 approves the decision.
48 (b) If the hospital can with reasonable efforts ascertain the identity
49 of the parents or guardian of an emancipated minor patient, the hospital
50 shall make diligent efforts to notify such persons, and document such
51 diligent efforts in the patient's medical record, prior to withholding
52 or withdrawing life-sustaining treatment pursuant to this subdivision.
53 § 11. Subparagraph (iv) of paragraph (b) of subdivision 4 of section
54 2994-m of the public health law, as added by chapter 8 of the laws of
55 2010, is amended to read as follows:
A. 9647--A 4
1 (iv) Following ethics review committee consideration of a case
2 concerning the withdrawal or withholding of life-sustaining treatment,
3 treatment shall not be withdrawn or withheld until the hospital makes
4 diligent efforts to inform the persons identified in subparagraph (iii)
5 of this paragraph [have been informed] of the committee's response to
6 the case and documents such diligent efforts in the patient's medical
8 § 12. Subdivision 2 of section 2994-t of the public health law, as
9 added by chapter 8 of the laws of 2010, is amended to read as follows:
10 2. The commissioner, in consultation with the commissioners of [the
11 office of] mental health and [the office of mental retardation and]
12 developmental disabilities, shall promulgate regulations identifying the
13 credentials of health care professionals qualified to provide an inde-
14 pendent determination, pursuant to subdivision three of section twenty-
15 nine hundred ninety-four-c of this article, that a patient lacks deci-
16 sion-making capacity because of mental illness or developmental
18 § 13. Section 2994-u of the public health law, as added by chapter 8
19 of the laws of 2010, is amended to read as follows:
20 § 2994-u. Rights to be publicized. The commissioner shall prepare a
21 statement summarizing the rights, duties, and requirements of this arti-
22 cle and shall require that a copy of such statement be furnished to
23 [patients] a patient or to [persons on] the surrogate [list known to the
24 hospital], or to the [parents or guardians] parent or guardian of a
25 minor [patients] patient, at or prior to admission to the hospital, or
26 within a reasonable time thereafter, and to [each member of the hospi-
27 tal's staff directly involved with patient care] any person on the
28 surrogate list who requests a copy of such statement from the hospital.
29 The statement shall also be made available to the hospital clinical
31 § 14. The commissioner of health shall revise the statement of rights
32 that hospitals are required to post (known as the Patient's Bill of
33 Rights) pursuant to paragraph (g) of subdivision 1 of section 2803 of
34 the public health law, by replacing the clause regarding orders not to
35 resuscitate with a statement that more generally informs patients of
36 their right to receive from the hospital upon admission, and upon
37 request, a more complete statement of their rights with respect to
38 deciding about health care, including appointing a health care agent,
39 consenting to do-not-resuscitate orders and making other life-sustaining
40 treatment decisions. The clause should also state in substance that the
41 hospital will also provide such statement upon request to any family
42 member or friend of a patient who lacks decision-making capacity.
43 § 15. Subdivisions 12 and 13 of section 2994-aa of the public health
44 law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
45 vision 13 as amended by chapter 167 of the laws of 2011, are amended to
46 read as follows:
47 12. "Mental hygiene facility" means a residential facility operated or
48 licensed by the office of mental health [or the office of mental retar-
49 dation and developmental disabilities].
50 13. "Nonhospital order not to resuscitate" means an order that directs
51 emergency medical services personnel, hospice personnel, home care
52 services agency personnel and hospital emergency services personnel not
53 to attempt cardiopulmonary resuscitation in the event a patient suffers
54 cardiac or respiratory arrest.
55 § 16. Subdivisions 2 and 6 of section 2994-dd of the public health
56 law, subdivision 2 as added by chapter 8 of the laws of 2010 and subdi-
A. 9647--A 5
1 vision 6 as amended by section 10 of part J of chapter 56 of the laws of
2 2012, are amended to read as follows:
3 2. A nonhospital order not to resuscitate shall be issued upon a stan-
4 dard form prescribed by the commissioner. [The commissioner shall also
5 develop a] A standard bracelet [that] or other article may be worn by a
6 patient with a nonhospital order not to resuscitate to identify that
7 status; provided, however, that no person may require a patient to wear
8 such a bracelet or other article and that no person may require a
9 patient to wear such a bracelet or other article as a condition for
10 honoring a nonhospital order not to resuscitate or for providing health
11 care services.
12 6. The commissioner may authorize the use of one or more alternative
13 forms for issuing a nonhospital order not to resuscitate (in place of
14 the standard form prescribed by the commissioner under subdivision two
15 of this section). Such alternative form or forms may also be used to
16 issue a non-hospital do not intubate order. Any such alternative forms
17 intended for use for persons with developmental disabilities or persons
18 with mental illness who are incapable of making their own health care
19 decisions or who have a guardian of the person appointed pursuant to
20 article eighty-one of the mental hygiene law or article seventeen-A of
21 the surrogate's court procedure act must also be approved by the commis-
22 sioner of developmental disabilities or the commissioner of mental
23 health, as appropriate. An alternative form under this subdivision shall
24 otherwise conform with applicable federal and state law. This subdivi-
25 sion does not limit, restrict or impair the use of an alternative form
26 for issuing an order not to resuscitate in a general hospital or resi-
27 dential health care facility under article twenty-eight of this chapter
28 or a hospital under subdivision ten of section 1.03 of the mental
29 hygiene law or a developmental disabilities services office under
30 section 13.17 of the mental hygiene law.
31 § 17. Section 2994-gg of the public health law, as added by chapter 8
32 of the laws of 2010, is amended to read as follows:
33 § 2994-gg. Immunity. No person shall be subjected to criminal prose-
34 cution or civil liability, or be deemed to have engaged in unprofes-
35 sional conduct, for honoring reasonably and in good faith pursuant to
36 this [section] article a nonhospital order not to resuscitate, for
37 disregarding a nonhospital order pursuant to section twenty-nine hundred
38 ninety-four-ee of this article, or for other actions taken reasonably
39 and in good faith pursuant to this [section] article.
40 § 18. This act shall take effect on the ninetieth day after it shall
41 have become a law, provided that the amendments to article 29-C of the
42 public health law shall apply to decisions made pursuant to health care
43 proxies created prior to the effective date of this act as well as those
44 created thereafter.