STATE OF NEW YORK
________________________________________________________________________
1162--A
2019-2020 Regular Sessions
IN ASSEMBLY
January 14, 2019
___________
Introduced by M. of A. GOTTFRIED -- read once and referred to the
Committee on Health -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to execution of
orders not to resuscitate and orders pertaining to life sustaining
treatments; 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. Section 2960 of the public health law, as amended by chap-
2 ter 430 of the laws of 2017, is amended to read as follows:
3 § 2960. Legislative findings and purpose. The legislature finds that,
4 although cardiopulmonary resuscitation has proved invaluable in the
5 prevention of sudden, unexpected death, it is appropriate for an attend-
6 ing [physician or attending nurse] practitioner, in certain circum-
7 stances, to issue an order not to attempt cardiopulmonary resuscitation
8 of a patient where appropriate consent has been obtained. The legisla-
9 ture further finds that there is a need to clarify and establish the
10 rights and obligations of patients, their families, and health care
11 providers regarding cardiopulmonary resuscitation and the issuance of
12 orders not to resuscitate.
13 § 2. Subdivisions 2, 5 and 20 of section 2961 of the public health
14 law, as amended by chapter 430 of the laws of 2017, are amended to read
15 as follows:
16 2. "Attending [physician] practitioner" means the physician, nurse
17 practitioner, or physician assistant, licensed or certified pursuant to
18 title eight of the education law, selected by or assigned to a patient
19 in a hospital who has primary responsibility for the treatment and care
20 of the patient. Where more than one physician [and/or], nurse practi-
21 tioner, or physician assistant shares such responsibility, any such
22 physician [or], nurse practitioner, or physician assistant may act as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03858-03-9
A. 1162--A 2
1 the attending [physician or attending nurse] practitioner pursuant to
2 this article.
3 5. "Close friend" means any person, eighteen years of age or older,
4 who is a close friend of the patient, or relative of the patient (other
5 than a spouse, adult child, parent, brother or sister) who has main-
6 tained such regular contact with the patient as to be familiar with the
7 patient's activities, health, and religious or moral beliefs and who
8 presents a signed statement to that effect to the attending [physician
9 or attending nurse] practitioner.
10 20. "Reasonably available" means that a person to be contacted can be
11 contacted with diligent efforts by an attending [physician, attending
12 nurse] practitioner or another person acting on behalf of the attending
13 [physician, attending nurse] practitioner or the hospital.
14 § 3. Subdivision 2-a of section 2961 of the public health law is
15 REPEALED.
16 § 4. Subdivisions 2 and 3 of section 2962 of the public health law, as
17 amended by chapter 430 of the laws of 2017, are amended to read as
18 follows:
19 2. It shall be lawful for the attending [physician or attending nurse]
20 practitioner to issue an order not to resuscitate a patient, provided
21 that the order has been issued pursuant to the requirements of this
22 article. The order shall be included in writing in the patient's chart.
23 An order not to resuscitate shall be effective upon issuance.
24 3. Before obtaining, pursuant to this article, the consent of the
25 patient, or of the surrogate of the patient, or parent or legal guardian
26 of the minor patient, to an order not to resuscitate, the attending
27 [physician or attending nurse] practitioner shall provide to the person
28 giving consent information about the patient's diagnosis and prognosis,
29 the reasonably foreseeable risks and benefits of cardiopulmonary resus-
30 citation for the patient, and the consequences of an order not to resus-
31 citate.
32 § 5. Section 2963 of the public health law, as amended by chapter 430
33 of the laws of 2017, is amended to read as follows:
34 § 2963. Determination of capacity to make a decision regarding
35 cardiopulmonary resuscitation. 1. Every adult shall be presumed to have
36 the capacity to make a decision regarding cardiopulmonary resuscitation
37 unless determined otherwise pursuant to this section or pursuant to a
38 court order or unless a guardian is authorized to decide about health
39 care for the adult pursuant to article eighty-one of the mental hygiene
40 law or article seventeen-A of the surrogate's court procedure act. The
41 attending [physician or attending nurse] practitioner shall not rely on
42 the presumption stated in this subdivision if clinical indicia of inca-
43 pacity are present.
44 2. A determination that an adult patient lacks capacity shall be made
45 by the attending [physician or attending nurse] practitioner to a
46 reasonable degree of medical certainty. The determination shall be made
47 in writing and shall contain such attending [physician's or attending
48 nurse] practitioner's opinion regarding the cause and nature of the
49 patient's incapacity as well as its extent and probable duration. The
50 determination shall be included in the patient's medical chart.
51 3. (a) At least one other physician, selected by a person authorized
52 by the hospital to make such selection, must concur in the determination
53 that an adult lacks capacity. The concurring determination shall be made
54 in writing after personal examination of the patient and shall contain
55 the physician's opinion regarding the cause and nature of the patient's
A. 1162--A 3
1 incapacity as well as its extent and probable duration. Each concurring
2 determination shall be included in the patient's medical chart.
3 (b) If the attending [physician or attending nurse] practitioner
4 determines that a patient lacks capacity because of mental illness, the
5 concurring determination required by paragraph (a) of this subdivision
6 shall be provided by a physician licensed to practice medicine in New
7 York state, who is a diplomate or eligible to be certified by the Ameri-
8 can Board of Psychiatry and Neurology or who is certified by the Ameri-
9 can Osteopathic Board of Neurology and Psychiatry or is eligible to be
10 certified by that board.
11 (c) If the attending [physician or attending nurse] practitioner
12 determines that a patient lacks capacity because of a developmental
13 disability, the concurring determination required by paragraph (a) of
14 this subdivision shall be provided by a physician or psychologist
15 employed by a developmental disabilities services office named in
16 section 13.17 of the mental hygiene law, or who has been employed for a
17 minimum of two years to render care and service in a facility operated
18 or licensed by the office for people with developmental disabilities, or
19 who has been approved by the commissioner of developmental disabilities
20 in accordance with regulations promulgated by such commissioner. Such
21 regulations shall require that a physician or psychologist possess
22 specialized training or three years experience in treating developmental
23 disabilities.
24 4. Notice of a determination that the patient lacks capacity shall
25 promptly be given (a) to the patient, where there is any indication of
26 the patient's ability to comprehend such notice, together with a copy of
27 a statement prepared in accordance with section twenty-nine hundred
28 seventy-eight of this article, and (b) to the person on the surrogate
29 list highest in order of priority listed, when persons in prior subpara-
30 graphs are not reasonably available. Nothing in this subdivision shall
31 preclude or require notice to more than one person on the surrogate
32 list.
33 5. A determination that a patient lacks capacity to make a decision
34 regarding an order not to resuscitate pursuant to this section shall not
35 be construed as a finding that the patient lacks capacity for any other
36 purpose.
37 § 6. Subdivision 2 of section 2964 of the public health law, as
38 amended by chapter 430 of the laws of 2017, is amended to read as
39 follows:
40 2. (a) During hospitalization, an adult with capacity may express a
41 decision consenting to an order not to resuscitate orally in the pres-
42 ence of at least two witnesses eighteen years of age or older, one of
43 whom is a physician [or], nurse practitioner, or physician assistant
44 affiliated with the hospital in which the patient is being treated. Any
45 such decision shall be recorded in the patient's medical chart.
46 (b) Prior to or during hospitalization, an adult with capacity may
47 express a decision consenting to an order not to resuscitate in writing,
48 dated and signed in the presence of at least two witnesses eighteen
49 years of age or older who shall sign the decision.
50 (c) An attending [physician or attending nurse] practitioner who is
51 provided with or informed of a decision pursuant to this subdivision
52 shall record or include the decision in the patient's medical chart if
53 the decision has not been recorded or included, and either:
54 (i) promptly issue an order not to resuscitate the patient or issue an
55 order at such time as the conditions, if any, specified in the decision
A. 1162--A 4
1 are met, and inform the hospital staff responsible for the patient's
2 care of the order; or
3 (ii) promptly make his or her objection to the issuance of such an
4 order and the reasons therefor known to the patient and either make all
5 reasonable efforts to arrange for the transfer of the patient to another
6 physician [or], nurse practitioner or physician assistant, if necessary,
7 or promptly submit the matter to the dispute mediation system.
8 (d) Prior to issuing an order not to resuscitate a patient who has
9 expressed a decision consenting to an order not to resuscitate under
10 specified medical conditions, the attending [physician or attending
11 nurse] practitioner must make a determination, to a reasonable degree of
12 medical certainty, that such conditions exist, and include the determi-
13 nation in the patient's medical chart.
14 § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
15 amended by chapter 430 of the laws of 2017, are amended to read as
16 follows:
17 3. (a) The surrogate shall make a decision regarding cardiopulmonary
18 resuscitation on the basis of the adult patient's wishes including a
19 consideration of the patient's religious and moral beliefs, or, if the
20 patient's wishes are unknown and cannot be ascertained, on the basis of
21 the patient's best interests.
22 (b) Notwithstanding any law to the contrary, the surrogate shall have
23 the same right as the patient to receive medical information and medical
24 records.
25 (c) A surrogate may consent to an order not to resuscitate on behalf
26 of an adult patient only if there has been a determination by an attend-
27 ing [physician or attending nurse] practitioner with the concurrence of
28 another physician [or], nurse practitioner or physician assistant
29 selected by a person authorized by the hospital to make such selection,
30 given after personal examination of the patient that, to a reasonable
31 degree of medical certainty:
32 (i) the patient has a terminal condition; or
33 (ii) the patient is permanently unconscious; or
34 (iii) resuscitation would be medically futile; or
35 (iv) resuscitation would impose an extraordinary burden on the patient
36 in light of the patient's medical condition and the expected outcome of
37 resuscitation for the patient.
38 Each determination shall be included in the patient's medical chart.
39 4. (a) A surrogate shall express a decision consenting to an order not
40 to resuscitate either (i) in writing, dated, and signed in the presence
41 of one witness eighteen years of age or older who shall sign the deci-
42 sion, or (ii) orally, to two persons eighteen years of age or older, one
43 of whom is a physician [or], nurse practitioner or physician assistant
44 affiliated with the hospital in which the patient is being treated. Any
45 such decision shall be recorded in the patient's medical chart.
46 (b) The attending [physician or attending nurse] practitioner who is
47 provided with the decision of a surrogate shall include the decision in
48 the patient's medical chart and, if the surrogate has consented to the
49 issuance of an order not to resuscitate, shall either:
50 (i) promptly issue an order not to resuscitate the patient and inform
51 the hospital staff responsible for the patient's care of the order; or
52 (ii) promptly make the attending [physician's or attending nurse]
53 practitioner's objection to the issuance of such an order known to the
54 surrogate and either make all reasonable efforts to arrange for the
55 transfer of the patient to another physician [or], nurse practitioner or
A. 1162--A 5
1 physician assistant, if necessary, or promptly refer the matter to the
2 dispute mediation system.
3 (c) If the attending [physician or attending nurse] practitioner has
4 actual notice of opposition to a surrogate's consent to an order not to
5 resuscitate by any person on the surrogate list, the physician [or],
6 nurse practitioner or physician assistant shall submit the matter to the
7 dispute mediation system and such order shall not be issued or shall be
8 revoked in accordance with the provisions of subdivision three of
9 section twenty-nine hundred seventy-two of this article.
10 § 8. Section 2966 of the public health law, as amended by chapter 430
11 of the laws of 2017, is amended to read as follows:
12 § 2966. Decision-making on behalf of an adult patient without capacity
13 for whom no surrogate is available. 1. If no surrogate is reasonably
14 available, willing to make a decision regarding issuance of an order not
15 to resuscitate, and competent to make a decision regarding issuance of
16 an order not to resuscitate on behalf of an adult patient who lacks
17 capacity and who had not previously expressed a decision regarding
18 cardiopulmonary resuscitation, an attending [physician or attending
19 nurse] practitioner (a) may issue an order not to resuscitate the
20 patient, provided that the attending [physician or attending nurse]
21 practitioner determines, in writing, that, to a reasonable degree of
22 medical certainty, resuscitation would be medically futile, and another
23 physician [or], nurse practitioner or physician assistant selected by a
24 person authorized by the hospital to make such selection, after personal
25 examination of the patient, reviews and concurs in writing with such
26 determination, or, (b) shall issue an order not to resuscitate the
27 patient, provided that, pursuant to subdivision one of section twenty-
28 nine hundred seventy-six of this article, a court has granted a judgment
29 directing the issuance of such an order.
30 2. Notwithstanding any other provision of this section, where a deci-
31 sion to consent to an order not to resuscitate has been made, notice of
32 the decision shall be given to the patient where there is any indication
33 of the patient's ability to comprehend such notice. If the patient
34 objects, an order not to resuscitate shall not be issued.
35 § 9. Section 2967 of the public health law, as amended by chapter 430
36 of the laws of 2017, is amended to read as follows:
37 § 2967. Decision-making on behalf of a minor patient. 1. An attending
38 [physician or attending nurse] practitioner, in consultation with a
39 minor's parent or legal guardian, shall determine whether a minor has
40 the capacity to make a decision regarding resuscitation.
41 2. (a) The consent of a minor's parent or legal guardian and the
42 consent of the minor, if the minor has capacity, must be obtained prior
43 to issuing an order not to resuscitate the minor.
44 (b) Where the attending [physician or attending nurse] practitioner
45 has reason to believe that there is another parent or a non-custodial
46 parent who has not been informed of a decision to issue an order not to
47 resuscitate the minor, the attending [physician or attending nurse]
48 practitioner, or someone acting on behalf of the [attending physician or
49 attending nurse] practitioner, shall make reasonable efforts to deter-
50 mine if the uninformed parent or non-custodial parent has maintained
51 substantial and continuous contact with the minor and, if so, shall make
52 diligent efforts to notify that parent or non-custodial parent of the
53 decision prior to issuing the order.
54 3. A parent or legal guardian may consent to an order not to resusci-
55 tate on behalf of a minor only if there has been a written determination
56 by the attending [physician or attending nurse] practitioner, with the
A. 1162--A 6
1 written concurrence of another physician [or], nurse practitioner or
2 physician assistant selected by a person authorized by the hospital to
3 make such selections given after personal examination of the patient,
4 that, to a reasonable degree of medical certainty, the minor suffers
5 from one of the medical conditions set forth in paragraph (c) of subdi-
6 vision three of section twenty-nine hundred sixty-five of this article.
7 Each determination shall be included in the patient's medical chart.
8 4. (a) A parent or legal guardian of a minor, in making a decision
9 regarding cardiopulmonary resuscitation, shall consider the minor
10 patient's wishes, including a consideration of the minor patient's reli-
11 gious and moral beliefs, and shall express a decision consenting to
12 issuance of an order not to resuscitate either (i) in writing, dated and
13 signed in the presence of one witness eighteen years of age or older who
14 shall sign the decision, or (ii) orally, to two persons eighteen years
15 of age or older, one of whom is a physician [or], nurse practitioner or
16 physician assistant affiliated with the hospital in which the patient is
17 being treated. Any such decision shall be recorded in the patient's
18 medical chart.
19 (b) The attending [physician or attending nurse] practitioner who is
20 provided with the decision of a minor's parent or legal guardian,
21 expressed pursuant to this subdivision, and of the minor if the minor
22 has capacity, shall include such decision or decisions in the minor's
23 medical chart and shall comply with the provisions of paragraph (b) of
24 subdivision four of section twenty-nine hundred sixty-five of this arti-
25 cle.
26 (c) If the attending [physician or attending nurse] practitioner has
27 actual notice of the opposition of a parent or non-custodial parent to
28 consent by another parent to an order not to resuscitate a minor, the
29 physician [or], nurse practitioner or physician assistant shall submit
30 the matter to the dispute mediation system and such order shall not be
31 issued or shall be revoked in accordance with the provisions of subdivi-
32 sion three of section twenty-nine hundred seventy-two of this article.
33 § 10. Section 2969 of the public health law, as amended by chapter 430
34 of the laws of 2017, is amended to read as follows:
35 § 2969. Revocation of consent to order not to resuscitate. 1. A person
36 may, at any time, revoke his or her consent to an order not to resusci-
37 tate himself or herself by making either a written or an oral declara-
38 tion to a physician or member of the nursing staff at the hospital where
39 he or she is being treated, or by any other act evidencing a specific
40 intent to revoke such consent.
41 2. Any surrogate, parent, or legal guardian may at any time revoke his
42 or her consent to an order not to resuscitate a patient by (a) notifying
43 a physician or member of the nursing staff of the revocation of consent
44 in writing, dated and signed, or (b) orally notifying the attending
45 [physician or attending nurse] practitioner in the presence of a witness
46 eighteen years of age or older.
47 3. Any physician [or], nurse practitioner or physician assistant who
48 is informed of or provided with a revocation of consent pursuant to this
49 section shall immediately include the revocation in the patient's chart,
50 cancel the order, and notify the hospital staff responsible for the
51 patient's care of the revocation and cancellation. Any member of the
52 nursing staff, other than a nurse practitioner or physician assistant,
53 who is informed of or provided with a revocation of consent pursuant to
54 this section shall immediately notify a physician [or], nurse practi-
55 tioner or physician assistant of such revocation.
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1 § 11. Section 2970 of the public health law, as amended by chapter 430
2 of the laws of 2017, is amended to read as follows:
3 § 2970. Physician [and], nurse practitioner and physician assistant
4 review of the order not to resuscitate. 1. For each patient for whom an
5 order not to resuscitate has been issued, the attending [physician or
6 attending nurse] practitioner shall review the patient's chart to deter-
7 mine if the order is still appropriate in light of the patient's condi-
8 tion and shall indicate on the patient's chart that the order has been
9 reviewed each time the patient is required to be seen by a physician but
10 at least every sixty days.
11 Failure to comply with this subdivision shall not render an order not
12 to resuscitate ineffective.
13 2. (a) If the attending [physician or attending nurse] practitioner
14 determines at any time that an order not to resuscitate is no longer
15 appropriate because the patient's medical condition has improved, the
16 physician [or], nurse practitioner or physician assistant shall imme-
17 diately notify the person who consented to the order. Except as provided
18 in paragraph (b) of this subdivision, if such person declines to revoke
19 consent to the order, the physician [or], nurse practitioner or physi-
20 cian assistant shall promptly (i) make reasonable efforts to arrange for
21 the transfer of the patient to another physician or (ii) submit the
22 matter to the dispute mediation system.
23 (b) If the order not to resuscitate was entered upon the consent of a
24 surrogate, parent, or legal guardian and the attending [physician or
25 attending nurse] practitioner who issued the order, or, if unavailable,
26 another attending [physician or attending nurse] practitioner at any
27 time determines that the patient does not suffer from one of the medical
28 conditions set forth in paragraph (c) of subdivision three of section
29 twenty-nine hundred sixty-five of this article, the attending [physician
30 or attending nurse] practitioner shall immediately include such determi-
31 nation in the patient's chart, cancel the order, and notify the person
32 who consented to the order and all hospital staff responsible for the
33 patient's care of the cancellation.
34 (c) If an order not to resuscitate was entered upon the consent of a
35 surrogate and the patient at any time gains or regains capacity, the
36 attending [physician or attending nurse] practitioner who issued the
37 order, or, if unavailable, another attending [physician or attending
38 nurse] practitioner shall immediately cancel the order and notify the
39 person who consented to the order and all hospital staff directly
40 responsible for the patient's care of the cancellation.
41 § 12. The opening paragraph and subdivision 2 of section 2971 of the
42 public health law, as amended by chapter 430 of the laws of 2017, are
43 amended to read as follows:
44 If a patient for whom an order not to resuscitate has been issued is
45 transferred from a hospital to a different hospital the order shall
46 remain effective, unless revoked pursuant to this article, until the
47 attending [physician or attending nurse] practitioner first examines the
48 transferred patient, whereupon the attending [physician or attending
49 nurse] practitioner must either:
50 2. Cancel the order not to resuscitate, provided the attending [physi-
51 cian or attending nurse] practitioner immediately notifies the person
52 who consented to the order and the hospital staff directly responsible
53 for the patient's care of the cancellation. Such cancellation does not
54 preclude the entry of a new order pursuant to this article.
A. 1162--A 8
1 § 13. Subdivisions 1, 2 and 4 of section 2972 of the public health
2 law, as amended by chapter 430 of the laws of 2017, are amended to read
3 as follows:
4 1. (a) Each hospital shall establish a mediation system for the
5 purpose of mediating disputes regarding the issuance of orders not to
6 resuscitate.
7 (b) The dispute mediation system shall be described in writing and
8 adopted by the hospital's governing authority. It may utilize existing
9 hospital resources, such as a patient advocate's office or hospital
10 chaplain's office, or it may utilize a body created specifically for
11 this purpose, but, in the event a dispute involves a patient deemed to
12 lack capacity pursuant to (i) paragraph (b) of subdivision three of
13 section twenty-nine hundred sixty-three of this article, the system must
14 include a physician [or], nurse practitioner or physician assistant
15 eligible to provide a concurring determination pursuant to such subdivi-
16 sion, or a family member or guardian of the person of a person with a
17 mental illness of the same or similar nature, or (ii) paragraph (c) of
18 subdivision three of section twenty-nine hundred sixty-three of this
19 article, the system must include a physician [or], nurse practitioner or
20 physician assistant eligible to provide a concurring determination
21 pursuant to such subdivision, or a family member or guardian of the
22 person of a person with a developmental disability of the same or simi-
23 lar nature.
24 2. The dispute mediation system shall be authorized to mediate any
25 dispute, including disputes regarding the determination of the patient's
26 capacity, arising under this article between the patient and an attend-
27 ing [physician, attending nurse] practitioner or the hospital that is
28 caring for the patient and, if the patient is a minor, the patient's
29 parent, or among an attending [physician, an attending nurse] practi-
30 tioner, a parent, non-custodial parent, or legal guardian of a minor
31 patient, any person on the surrogate list, and the hospital that is
32 caring for the patient.
33 4. If a dispute between a patient who expressed a decision rejecting
34 cardiopulmonary resuscitation and an attending [physician, attending
35 nurse] practitioner or the hospital that is caring for the patient is
36 submitted to the dispute mediation system, and either:
37 (a) the dispute mediation system has concluded its efforts to resolve
38 the dispute, or
39 (b) seventy-two hours have elapsed from the time of submission without
40 resolution of the dispute, whichever shall occur first, the attending
41 [physician or attending nurse] practitioner shall either: (i) promptly
42 issue an order not to resuscitate the patient or issue the order at such
43 time as the conditions, if any, specified in the decision are met, and
44 inform the hospital staff responsible for the patient's care of the
45 order; or (ii) promptly arrange for the transfer of the patient to
46 another physician, nurse practitioner, physician assistant or hospital.
47 § 14. Subdivision 1 of section 2973 of the public health law, as
48 amended by chapter 430 of the laws of 2017, is amended to read as
49 follows:
50 1. The patient, an attending [physician, attending nurse] practition-
51 er, a parent, non-custodial parent, or legal guardian of a minor
52 patient, any person on the surrogate list, the hospital that is caring
53 for the patient and the facility director, may commence a special
54 proceeding pursuant to article four of the civil practice law and rules,
55 in a court of competent jurisdiction, with respect to any dispute aris-
56 ing under this article, except that the decision of a patient not to
A. 1162--A 9
1 consent to issuance of an order not to resuscitate may not be subjected
2 to judicial review. In any proceeding brought pursuant to this subdivi-
3 sion challenging a decision regarding issuance of an order not to resus-
4 citate on the ground that the decision is contrary to the patient's
5 wishes or best interests, the person or entity challenging the decision
6 must show, by clear and convincing evidence, that the decision is
7 contrary to the patient's wishes including consideration of the
8 patient's religious and moral beliefs, or, in the absence of evidence of
9 the patient's wishes, that the decision is contrary to the patient's
10 best interests. In any other proceeding brought pursuant to this subdi-
11 vision, the court shall make its determination based upon the applicable
12 substantive standards and procedures set forth in this article.
13 § 15. Section 2976 of the public health law, as amended by chapter 430
14 of the laws of 2017, is amended to read as follows:
15 § 2976. Judicially approved order not to resuscitate. 1. If no surro-
16 gate is reasonably available, willing to make a decision regarding issu-
17 ance of an order not to resuscitate, and competent to make a decision
18 regarding issuance of an order not to resuscitate on behalf of an adult
19 patient who lacks capacity and who had not previously expressed a deci-
20 sion regarding cardiopulmonary resuscitation pursuant to this article,
21 an attending [physician or attending nurse] practitioner or hospital may
22 commence a special proceeding pursuant to article four of the civil
23 practice law and rules, in a court of competent jurisdiction, for a
24 judgment directing the physician [or], nurse practitioner or physician
25 assistant to issue an order not to resuscitate where the patient has a
26 terminal condition, is permanently unconscious, or resuscitation would
27 impose an extraordinary burden on the patient in light of the patient's
28 medical condition and the expected outcome of resuscitation for the
29 patient, and issuance of an order not to resuscitate is consistent with
30 the patient's wishes including a consideration of the patient's reli-
31 gious and moral beliefs or, in the absence of evidence of the patient's
32 wishes, the patient's best interests.
33 2. Nothing in this article shall be construed to preclude a court of
34 competent jurisdiction from approving the issuance of an order not to
35 resuscitate under circumstances other than those under which such an
36 order may be issued pursuant to this article.
37 § 16. Subdivisions 2, 9-a and 13 of section 2980 of the public health
38 law, subdivisions 2 and 13 as added by chapter 752 of the laws of 1990,
39 subdivision 9-a as added by chapter 8 of the laws of 2010, are amended
40 to read as follows:
41 2. "Attending [physician] practitioner" means the physician, physician
42 assistant, or nurse practitioner, licensed or certified pursuant to
43 title eight of the education law, selected by or assigned to a patient,
44 who has primary responsibility for the treatment and care of the
45 patient. Where more than one physician, physician assistant, or nurse
46 practitioner shares such responsibility, or where a physician, physician
47 assistant, or nurse practitioner is acting on the attending [physi-
48 cian's] practitioner's behalf, any such physician, nurse practitioner,
49 or physician assistant may act as the attending [physician] practitioner
50 pursuant to this article.
51 9-a. "Life-sustaining treatment" means any medical treatment or proce-
52 dure without which the patient will die within a relatively short time,
53 as determined by an attending [physician] practitioner to a reasonable
54 degree of medical certainty. For purposes of this article, cardiopulmo-
55 nary resuscitation is presumed to be a life sustaining treatment without
A. 1162--A 10
1 the necessity of a determination by an attending [physician] practition-
2 er.
3 13. "Reasonably available" means that a person to be contacted can be
4 contacted with diligent efforts by an attending [physician] practitioner
5 or another person acting on behalf of the attending [physician] practi-
6 tioner or the hospital.
7 § 17. Subdivision 2-c of section 2980 of the public health law is
8 REPEALED.
9 § 18. Subdivisions 2, 3 and 6 of section 2981 of the public health
10 law, as amended by chapter 342 of the laws of 2018, are amended to read
11 as follows:
12 2. Health care proxy; execution; witnesses. (a) A competent adult may
13 appoint a health care agent by a health care proxy, signed and dated by
14 the adult in the presence of two adult witnesses who shall also sign the
15 proxy. Another person may sign and date the health care proxy for the
16 adult if the adult is unable to do so, at the adult's direction and in
17 the adult's presence, and in the presence of two adult witnesses who
18 shall sign the proxy. The witnesses shall state that the principal
19 appeared to execute the proxy willingly and free from duress. The person
20 appointed as agent shall not act as witness to execution of the health
21 care proxy.
22 (b) For persons who reside in a mental hygiene facility operated or
23 licensed by the office of mental health, at least one witness shall be
24 an individual who is not affiliated with the facility and, if the mental
25 hygiene facility is also a hospital as defined in subdivision ten of
26 section 1.03 of the mental hygiene law, at least one witness shall be a
27 qualified psychiatrist or psychiatric nurse practitioner.
28 (c) For persons who reside in a mental hygiene facility operated or
29 licensed by the office for people with developmental disabilities, at
30 least one witness shall be an individual who is not affiliated with the
31 facility and at least one witness shall be a physician, nurse practi-
32 tioner, physician assistant or clinical psychologist who either is
33 employed by a developmental disabilities services office named in
34 section 13.17 of the mental hygiene law or who has been employed for a
35 minimum of two years to render care and service in a facility operated
36 or licensed by the office for people with developmental disabilities, or
37 has been approved by the commissioner of developmental disabilities in
38 accordance with regulations approved by the commissioner. Such regu-
39 lations shall require that a physician, nurse practitioner, physician
40 assistant, or clinical psychologist possess specialized training or
41 three years experience in treating developmental disabilities.
42 3. Restrictions on who may be and limitations on a health care agent.
43 (a) An operator, administrator or employee of a hospital may not be
44 appointed as a health care agent by any person who, at the time of the
45 appointment, is a patient or resident of, or has applied for admission
46 to, such hospital.
47 (b) The restriction in paragraph (a) of this subdivision shall not
48 apply to:
49 (i) an operator, administrator or employee of a hospital who is
50 related to the principal by blood, marriage or adoption; or
51 (ii) a physician, physician assistant, or nurse practitioner, subject
52 to the limitation set forth in paragraph (c) of this subdivision, except
53 that no physician or nurse practitioner affiliated with a mental hygiene
54 facility or a psychiatric unit of a general hospital may serve as agent
55 for a principal residing in or being treated by such facility or unit
A. 1162--A 11
1 unless the physician is related to the principal by blood, marriage or
2 adoption.
3 (c) If a physician, physician assistant, or nurse practitioner is
4 appointed agent, the physician, physician assistant, or nurse practi-
5 tioner shall not act as the patient's attending [physician or attending
6 nurse] practitioner after the authority under the health care proxy
7 commences, unless the physician, physician assistant, or nurse practi-
8 tioner declines the appointment as agent at or before such time.
9 (d) No person who is not the spouse, child, parent, brother, sister or
10 grandparent of the principal, or is the issue of, or married to, such
11 person, shall be appointed as a health care agent if, at the time of
12 appointment, he or she is presently appointed health care agent for ten
13 principals.
14 6. Alternate agent. (a) A competent adult may designate an alternate
15 agent in the health care proxy to serve in place of the agent when:
16 (i) the attending [physician or attending nurse] practitioner has
17 determined in a writing signed by the physician, physician assistant, or
18 nurse practitioner (A) that the person appointed as agent is not reason-
19 ably available, willing and competent to serve as agent, and (B) that
20 such person is not expected to become reasonably available, willing and
21 competent to make a timely decision given the patient's medical circum-
22 stances;
23 (ii) the agent is disqualified from acting on the principal's behalf
24 pursuant to subdivision three of this section or subdivision two of
25 section two thousand nine hundred ninety-two of this article, or
26 (iii) under conditions set forth in the proxy.
27 (b) If, after an alternate agent's authority commences, the person
28 appointed as agent becomes available, willing and competent to serve as
29 agent:
30 (i) the authority of the alternate agent shall cease and the authority
31 of the agent shall commence; and
32 (ii) the attending [physician or attending nurse] practitioner shall
33 record the change in agent and the reasons therefor in the principal's
34 medical record.
35 § 19. Subdivisions 1, 2, 6 and 7 of section 2983 of the public health
36 law, as amended by chapter 342 of the laws of 2018, are amended to read
37 as follows:
38 1. Determination by attending [physician or attending nurse] practi-
39 tioner. (a) A determination that a principal lacks capacity to make
40 health care decisions shall be made by the attending [physician or
41 attending nurse] practitioner to a reasonable degree of medical certain-
42 ty. The determination shall be made in writing and shall contain such
43 attending [physician's or attending nurse] practitioner's opinion
44 regarding the cause and nature of the principal's incapacity as well as
45 its extent and probable duration. The determination shall be included in
46 the patient's medical record. For a decision to withdraw or withhold
47 life-sustaining treatment, the attending [physician or attending nurse]
48 practitioner who makes the determination that a principal lacks capacity
49 to make health care decisions must consult with another physician,
50 physician assistant, or nurse practitioner to confirm such determi-
51 nation. Such consultation shall also be included within the patient's
52 medical record.
53 (b) If an attending [physician or attending nurse] practitioner of a
54 patient in a general hospital or mental hygiene facility determines that
55 a patient lacks capacity because of mental illness, the attending
56 [physician or attending nurse] practitioner who makes the determination
A. 1162--A 12
1 must be, or must consult, for the purpose of confirming the determi-
2 nation, with a qualified psychiatrist. A record of such consultation
3 shall be included in the patient's medical record.
4 (c) If the attending [physician or attending nurse] practitioner
5 determines that a patient lacks capacity because of a developmental
6 disability, the attending [physician or attending nurse] practitioner
7 who makes the determination must be, or must consult, for the purpose of
8 confirming the determination, with a physician, nurse practitioner,
9 physician assistant, or clinical psychologist who either is employed by
10 a developmental disabilities services office named in section 13.17 of
11 the mental hygiene law, or who has been employed for a minimum of two
12 years to render care and service in a facility operated or licensed by
13 the office for people with developmental disabilities, or has been
14 approved by the commissioner of developmental disabilities in accordance
15 with regulations promulgated by such commissioner. Such regulations
16 shall require that a physician, nurse practitioner, physician assistant,
17 or clinical psychologist possess specialized training or three years
18 experience in treating developmental disabilities. A record of such
19 consultation shall be included in the patient's medical record.
20 (d) A physician, physician assistant, or nurse practitioner who has
21 been appointed as a patient's agent shall not make the determination of
22 the patient's capacity to make health care decisions.
23 2. Request for a determination. If requested by the agent, an attend-
24 ing [physician or attending nurse] practitioner shall make a determi-
25 nation regarding the principal's capacity to make health care decisions
26 for the purposes of this article.
27 6. Confirmation of lack of capacity. (a) The attending [physician or
28 attending nurse] practitioner shall confirm the principal's continued
29 incapacity before complying with an agent's health care decisions, other
30 than those decisions made at or about the time of the initial determi-
31 nation made pursuant to subdivision one of this section. The confirma-
32 tion shall be stated in writing and shall be included in the principal's
33 medical record.
34 (b) The notice requirements set forth in subdivision three of this
35 section shall not apply to the confirmation required by this subdivi-
36 sion.
37 7. Effect of recovery of capacity. In the event the attending [physi-
38 cian or attending nurse] practitioner determines that the principal has
39 regained capacity, the authority of the agent shall cease, but shall
40 recommence if the principal subsequently loses capacity as determined
41 pursuant to this section.
42 § 20. Subdivision 2 of section 2985 of the public health law, as
43 amended by chapter 342 of the laws of 2018, is amended to read as
44 follows:
45 2. Duty to record revocation. (a) A physician, physician assistant, or
46 nurse practitioner who is informed of or provided with a revocation of a
47 health care proxy shall immediately (i) record the revocation in the
48 principal's medical record and (ii) notify the agent and the medical
49 staff responsible for the principal's care of the revocation.
50 (b) Any member of the staff of a health care provider informed of or
51 provided with a revocation of a health care proxy pursuant to this
52 section shall immediately notify a physician, physician assistant, or
53 nurse practitioner of such revocation.
54 § 21. Subdivisions 2 and 4 of section 2994-a of the public health law,
55 as amended by chapter 430 of the laws of 2017, are amended to read as
56 follows:
A. 1162--A 13
1 2. "Attending [physician"] practitioner" means a physician, nurse
2 practitioner or physician assistant, selected by or assigned to a
3 patient pursuant to hospital policy, who has primary responsibility for
4 the treatment and care of the patient. Where more than one physician
5 [and/or], nurse practitioner or physician assistant shares such respon-
6 sibility, or where a physician [or], nurse practitioner or physician
7 assistant is acting on the attending [physician's or attending nurse]
8 practitioner's behalf, any such physician [or], nurse practitioner or
9 physician assistant may act as an attending [physician or attending
10 nurse] practitioner pursuant to this article.
11 4. "Close friend" means any person, eighteen years of age or older,
12 who is a close friend of the patient, or a relative of the patient
13 (other than a spouse, adult child, parent, brother or sister), who 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 who presents a signed statement to that effect to the attending [physi-
17 cian or attending nurse] practitioner.
18 § 22. Subdivisions 2 and 3 of section 2994-b of the public health law,
19 as amended by chapter 430 of the laws of 2017, are amended to read as
20 follows:
21 2. Prior to seeking or relying upon a health care decision by a surro-
22 gate for a patient under this article, the attending [physician or
23 attending nurse] practitioner shall make reasonable efforts to determine
24 whether the patient has a health care agent appointed pursuant to arti-
25 cle twenty-nine-C of this chapter. If so, health care decisions for the
26 patient shall be governed by such article, and shall have priority over
27 decisions by any other person except the patient or as otherwise
28 provided in the health care proxy.
29 3. Prior to seeking or relying upon a health care decision by a surro-
30 gate for a patient under this article, if the attending [physician or
31 attending nurse] practitioner has reason to believe that the patient has
32 a history of receiving services for mental retardation or a develop-
33 mental disability; it reasonably appears to the attending [physician or
34 attending nurse] practitioner that the patient has mental retardation or
35 a developmental disability; or the [attending physician or attending
36 nurse] practitioner has reason to believe that the patient has been
37 transferred from a mental hygiene facility operated or licensed by the
38 office of mental health, then such physician [or], nurse practitioner or
39 physician assistant shall make reasonable efforts to determine whether
40 paragraphs (a), (b) or (c) of this subdivision are applicable:
41 (a) If the patient has a guardian appointed by a court pursuant to
42 article seventeen-A of the surrogate's court procedure act, health care
43 decisions for the patient shall be governed by section seventeen hundred
44 fifty-b of the surrogate's court procedure act and not by this article.
45 (b) If a patient does not have a guardian appointed by a court pursu-
46 ant to article seventeen-A of the surrogate's court procedure act but
47 falls within the class of persons described in paragraph (a) of subdivi-
48 sion one of section seventeen hundred fifty-b of such act, decisions to
49 withdraw or withhold life-sustaining treatment for the patient shall be
50 governed by section seventeen hundred fifty-b of the surrogate's court
51 procedure act and not by this article.
52 (c) If a health care decision for a patient cannot be made under para-
53 graphs (a) or (b) of this subdivision, but consent for the decision may
54 be provided pursuant to the mental hygiene law or regulations of the
55 office of mental health or the office for people with developmental
A. 1162--A 14
1 disabilities, then the decision shall be governed by such statute or
2 regulations and not by this article.
3 § 23. Subdivisions 2, 3 and 7 of section 2994-c of the public health
4 law, as amended by chapter 430 of the laws of 2017, are amended to read
5 as follows:
6 2. Initial determination by attending [physician or attending nurse]
7 practitioner. An attending [physician or attending nurse] practitioner
8 shall make an initial determination that an adult patient lacks deci-
9 sion-making capacity to a reasonable degree of medical certainty. Such
10 determination shall include an assessment of the cause and extent of the
11 patient's incapacity and the likelihood that the patient will regain
12 decision-making capacity.
13 3. Concurring determinations. (a) An initial determination that a
14 patient lacks decision-making capacity shall be subject to a concurring
15 determination, independently made, where required by this subdivision. A
16 concurring determination shall include an assessment of the cause and
17 extent of the patient's incapacity and the likelihood that the patient
18 will regain decision-making capacity, and shall be included in the
19 patient's medical record. Hospitals shall adopt written policies identi-
20 fying the training and credentials of health or social services practi-
21 tioners qualified to provide concurring determinations of incapacity.
22 (b) (i) In a residential health care facility, a health or social
23 services practitioner employed by or otherwise formally affiliated with
24 the facility must independently determine whether an adult patient lacks
25 decision-making capacity.
26 (ii) In a general hospital a health or social services practitioner
27 employed by or otherwise formally affiliated with the facility must
28 independently determine whether an adult patient lacks decision-making
29 capacity if the surrogate's decision concerns the withdrawal or with-
30 holding of life-sustaining treatment.
31 (iii) With respect to decisions regarding hospice care for a patient
32 in a general hospital or residential health care facility, the health or
33 social services practitioner must be employed by or otherwise formally
34 affiliated with the general hospital or residential health care facili-
35 ty.
36 (c) (i) If the attending [physician or attending nurse] practitioner
37 makes an initial determination that a patient lacks decision-making
38 capacity because of mental illness, either such physician must have the
39 following qualifications, or another physician with the following quali-
40 fications must independently determine whether the patient lacks deci-
41 sion-making capacity: a physician licensed to practice medicine in New
42 York state, who is a diplomate or eligible to be certified by the Ameri-
43 can Board of Psychiatry and Neurology or who is certified by the Ameri-
44 can Osteopathic Board of Neurology and Psychiatry or is eligible to be
45 certified by that board. A record of such consultation shall be included
46 in the patient's medical record.
47 (ii) If the attending [physician or attending nurse] practitioner
48 makes an initial determination that a patient lacks decision-making
49 capacity because of a developmental disability, either such physician
50 [or], nurse practitioner or physician assistant must have the following
51 qualifications, or another professional with the following qualifica-
52 tions must independently determine whether the patient lacks decision-
53 making capacity: a physician or clinical psychologist who either is
54 employed by a developmental disabilities services office named in
55 section 13.17 of the mental hygiene law, or who has been employed for a
56 minimum of two years to render care and service in a facility operated
A. 1162--A 15
1 or licensed by the office for people with developmental disabilities, or
2 has been approved by the commissioner of developmental disabilities in
3 accordance with regulations promulgated by such commissioner. Such regu-
4 lations shall require that a physician or clinical psychologist possess
5 specialized training or three years experience in treating developmental
6 disabilities. A record of such consultation shall be included in the
7 patient's medical record.
8 (d) If an attending [physician or attending nurse] practitioner has
9 determined that the patient lacks decision-making capacity and if the
10 health or social services practitioner consulted for a concurring deter-
11 mination disagrees with the attending [physician's or the attending
12 nurse] practitioner's determination, the matter shall be referred to the
13 ethics review committee if it cannot otherwise be resolved.
14 7. Confirmation of continued lack of decision-making capacity. An
15 attending [physician or attending nurse] practitioner shall confirm the
16 adult patient's continued lack of decision-making capacity before
17 complying with health care decisions made pursuant to this article,
18 other than those decisions made at or about the time of the initial
19 determination. A concurring determination of the patient's continued
20 lack of decision-making capacity shall be required if the subsequent
21 health care decision concerns the withholding or withdrawal of life-sus-
22 taining treatment. Health care providers shall not be required to inform
23 the patient or surrogate of the confirmation.
24 § 24. Subdivisions 2, 3 and 5 of section 2994-d of the public health
25 law, as amended by chapter 430 of the laws of 2017, are amended to read
26 as follows:
27 2. Restrictions on who may be a surrogate. An operator, administrator,
28 or employee of a hospital or a mental hygiene facility from which the
29 patient was transferred, or a physician [or], nurse practitioner or
30 physician assistant who has privileges at the hospital or a health care
31 provider under contract with the hospital may not serve as the surrogate
32 for any adult who is a patient of such hospital, unless such individual
33 is related to the patient by blood, marriage, domestic partnership, or
34 adoption, or is a close friend of the patient whose friendship with the
35 patient preceded the patient's admission to the facility. If a physician
36 [or], nurse practitioner or physician assistant serves as surrogate, the
37 physician [or], nurse practitioner or physician assistant shall not act
38 as the patient's attending [physician or attending nurse] practitioner
39 after his or her authority as surrogate begins.
40 3. Authority and duties of surrogate. (a) Scope of surrogate's author-
41 ity.
42 (i) Subject to the standards and limitations of this article, the
43 surrogate shall have the authority to make any and all health care deci-
44 sions on the adult patient's behalf that the patient could make.
45 (ii) Nothing in this article shall obligate health care providers to
46 seek the consent of a surrogate if an adult patient has already made a
47 decision about the proposed health care, expressed orally or in writing
48 or, with respect to a decision to withdraw or withhold life-sustaining
49 treatment expressed either orally during hospitalization in the presence
50 of two witnesses eighteen years of age or older, at least one of whom is
51 a health or social services practitioner affiliated with the hospital,
52 or in writing. If an attending [physician or attending nurse] practi-
53 tioner relies on the patient's prior decision, the physician [or], nurse
54 practitioner or physician assistant shall record the prior decision in
55 the patient's medical record. If a surrogate has already been designated
56 for the patient, the attending [physician or attending nurse] practi-
A. 1162--A 16
1 tioner shall make reasonable efforts to notify the surrogate prior to
2 implementing the decision; provided that in the case of a decision to
3 withdraw or withhold life-sustaining treatment, the attending [physician
4 or attending nurse] practitioner shall make diligent efforts to notify
5 the surrogate and, if unable to notify the surrogate, shall document the
6 efforts that were made to do so.
7 (b) Commencement of surrogate's authority. The surrogate's authority
8 shall commence upon a determination, made pursuant to section twenty-
9 nine hundred ninety-four-c of this article, that the adult patient lacks
10 decision-making capacity and upon identification of a surrogate pursuant
11 to subdivision one of this section. In the event an attending [physician
12 or nurse] practitioner determines that the patient has regained deci-
13 sion-making capacity, the authority of the surrogate shall cease.
14 (c) Right and duty to be informed. Notwithstanding any law to the
15 contrary, the surrogate shall have the right to receive medical informa-
16 tion and medical records necessary to make informed decisions about the
17 patient's health care. Health care providers shall provide and the
18 surrogate shall seek information necessary to make an informed decision,
19 including information about the patient's diagnosis, prognosis, the
20 nature and consequences of proposed health care, and the benefits and
21 risks of and [alternative] alternatives to proposed health care.
22 5. Decisions to withhold or withdraw life-sustaining treatment. In
23 addition to the standards set forth in subdivision four of this section,
24 decisions by surrogates to withhold or withdraw life-sustaining treat-
25 ment (including decisions to accept a hospice plan of care that provides
26 for the withdrawal or withholding of life-sustaining treatment) shall be
27 authorized only if the following conditions are satisfied, as applica-
28 ble:
29 (a)(i) Treatment would be an extraordinary burden to the patient and
30 an attending [physician or attending nurse] practitioner determines,
31 with the independent concurrence of another physician [or], nurse prac-
32 titioner or physician assistant, that, to a reasonable degree of medical
33 certainty and in accord with accepted medical standards, (A) the patient
34 has an illness or injury which can be expected to cause death within six
35 months, whether or not treatment is provided; or (B) the patient is
36 permanently unconscious; or
37 (ii) The provision of treatment would involve such pain, suffering or
38 other burden that it would reasonably be deemed inhumane or extraor-
39 dinarily burdensome under the circumstances and the patient has an irre-
40 versible or incurable condition, as determined by an attending [physi-
41 cian or attending nurse] practitioner with the independent concurrence
42 of another physician [or], nurse practitioner or physician assistant to
43 a reasonable degree of medical certainty and in accord with accepted
44 medical standards.
45 (b) In a residential health care facility, a surrogate shall have the
46 authority to refuse life-sustaining treatment under subparagraph (ii) of
47 paragraph (a) of this subdivision only if the ethics review committee,
48 including at least one physician [or], nurse practitioner or physician
49 assistant who is not directly responsible for the patient's care, or a
50 court of competent jurisdiction, reviews the decision and determines
51 that it meets the standards set forth in this article. This requirement
52 shall not apply to a decision to withhold cardiopulmonary resuscitation.
53 (c) In a general hospital, if the attending [physician or attending
54 nurse] practitioner objects to a surrogate's decision, under subpara-
55 graph (ii) of paragraph (a) of this subdivision, to withdraw or withhold
56 nutrition and hydration provided by means of medical treatment, the
A. 1162--A 17
1 decision shall not be implemented until the ethics review committee,
2 including at least one physician [or], nurse practitioner or physician
3 assistant who is not directly responsible for the patient's care, or a
4 court of competent jurisdiction, reviews the decision and determines
5 that it meets the standards set forth in this subdivision and subdivi-
6 sion four of this section.
7 (d) Providing nutrition and hydration orally, without reliance on
8 medical treatment, is not health care under this article and is not
9 subject to this article.
10 (e) Expression of decisions. The surrogate shall express a decision to
11 withdraw or withhold life-sustaining treatment either orally to an
12 attending [physician or attending nurse] practitioner or in writing.
13 § 25. Subdivisions 2 and 3 of section 2994-e of the public health law,
14 as amended by chapter 430 of the laws of 2017, are amended to read as
15 follows:
16 2. Decision-making standards and procedures for minor patient. (a) The
17 parent or guardian of a minor patient shall make decisions in accordance
18 with the minor's best interests, consistent with the standards set forth
19 in subdivision four of section twenty-nine hundred ninety-four-d of this
20 article, taking into account the minor's wishes as appropriate under the
21 circumstances.
22 (b) An attending [physician or attending nurse] practitioner, in
23 consultation with a minor's parent or guardian, shall determine whether
24 a minor patient has decision-making capacity for a decision to withhold
25 or withdraw life-sustaining treatment. If the minor has such capacity, a
26 parent's or guardian's decision to withhold or withdraw life-sustaining
27 treatment for the minor may not be implemented without the minor's
28 consent.
29 (c) Where a parent or guardian of a minor patient has made a decision
30 to withhold or withdraw life-sustaining treatment and an attending
31 [physician or attending nurse] practitioner has reason to believe that
32 the minor patient has a parent or guardian who has not been informed of
33 the decision, including a non-custodial parent or guardian, an attending
34 [physician,attending nurse] practitioner or someone acting on his or her
35 behalf, shall make reasonable efforts to determine if the uninformed
36 parent or guardian has maintained substantial and continuous contact
37 with the minor and, if so, shall make diligent efforts to notify that
38 parent or guardian prior to implementing the decision.
39 3. Decision-making standards and procedures for emancipated minor
40 patient. (a) If an attending [physician or attending nurse] practitioner
41 determines that a patient is an emancipated minor patient with deci-
42 sion-making capacity, the patient shall have the authority to decide
43 about life-sustaining treatment. Such authority shall include a decision
44 to withhold or withdraw life-sustaining treatment if an attending
45 [physician or attending nurse] practitioner and the ethics review
46 committee determine that the decision accords with the standards for
47 surrogate decisions for adults, and the ethics review committee approves
48 the decision.
49 (b) If the hospital can with reasonable efforts ascertain the identity
50 of the parents or guardian of an emancipated minor patient, the hospital
51 shall notify such persons prior to withholding or withdrawing life-sus-
52 taining treatment pursuant to this subdivision.
53 § 26. Section 2994-f of the public health law, as amended by chapter
54 430 of the laws of 2017, is amended to read as follows:
55 § 2994-f. Obligations of attending [physician or attending nurse]
56 practitioner. 1. An attending [physician or attending nurse] practition-
A. 1162--A 18
1 er informed of a decision to withdraw or withhold life-sustaining treat-
2 ment made pursuant to the standards of this article shall record the
3 decision in the patient's medical record, review the medical basis for
4 the decision, and shall either: (a) implement the decision, or (b)
5 promptly make his or her objection to the decision and the reasons for
6 the objection known to the decision-maker, and either make all reason-
7 able efforts to arrange for the transfer of the patient to another
8 physician [or], nurse practitioner or physician assistant, if necessary,
9 or promptly refer the matter to the ethics review committee.
10 2. If an attending [physician or attending nurse] practitioner has
11 actual notice of the following objections or disagreements, he or she
12 shall promptly refer the matter to the ethics review committee if the
13 objection or disagreement cannot otherwise be resolved:
14 (a) A health or social services practitioner consulted for a concur-
15 ring determination that an adult patient lacks decision-making capacity
16 disagrees with the attending [physician's or attending nurse] practi-
17 tioner's determination; or
18 (b) Any person on the surrogate list objects to the designation of the
19 surrogate pursuant to subdivision one of section twenty-nine hundred
20 ninety-four-d of this article; or
21 (c) Any person on the surrogate list objects to a surrogate's deci-
22 sion; or
23 (d) A parent or guardian of a minor patient objects to the decision by
24 another parent or guardian of the minor; or
25 (e) A minor patient refuses life-sustaining treatment, and the minor's
26 parent or guardian wishes the treatment to be provided, or the minor
27 patient objects to an attending [physician's or attending nurse] practi-
28 tioner's determination about decision-making capacity or recommendation
29 about life-sustaining treatment.
30 3. Notwithstanding the provisions of this section or subdivision one
31 of section twenty-nine hundred ninety-four-q of this article, if a
32 surrogate directs the provision of life-sustaining treatment, the denial
33 of which in reasonable medical judgment would be likely to result in the
34 death of the patient, a hospital or individual health care provider that
35 does not wish to provide such treatment shall nonetheless comply with
36 the surrogate's decision pending either transfer of the patient to a
37 willing hospital or individual health care provider, or judicial review
38 in accordance with section twenty-nine hundred ninety-four-r of this
39 article.
40 § 27. Subdivisions 3, 4, 5, 5-a and 6 of section 2994-g of the public
41 health law, as amended by chapter 430 of the laws of 2017, are amended
42 to read as follows:
43 3. Routine medical treatment. (a) For purposes of this subdivision,
44 "routine medical treatment" means any treatment, service, or procedure
45 to diagnose or treat an individual's physical or mental condition, such
46 as the administration of medication, the extraction of bodily fluids for
47 analysis, or dental care performed with a local anesthetic, for which
48 health care providers ordinarily do not seek specific consent from the
49 patient or authorized representative. It shall not include the long-term
50 provision of treatment such as ventilator support or a nasogastric tube
51 but shall include such treatment when provided as part of post-operative
52 care or in response to an acute illness and recovery is reasonably
53 expected within one month or less.
54 (b) An attending [physician or attending nurse] practitioner shall be
55 authorized to decide about routine medical treatment for an adult
56 patient who has been determined to lack decision-making capacity pursu-
A. 1162--A 19
1 ant to section twenty-nine hundred ninety-four-c of this article. Noth-
2 ing in this subdivision shall require health care providers to obtain
3 specific consent for treatment where specific consent is not otherwise
4 required by law.
5 4. Major medical treatment. (a) For purposes of this subdivision,
6 "major medical treatment" means any treatment, service or procedure to
7 diagnose or treat an individual's physical or mental condition: (i)
8 where general anesthetic is used; or (ii) which involves any significant
9 risk; or (iii) which involves any significant invasion of bodily integ-
10 rity requiring an incision, producing substantial pain, discomfort,
11 debilitation or having a significant recovery period; or (iv) which
12 involves the use of physical restraints, as specified in regulations
13 promulgated by the commissioner, except in an emergency; or (v) which
14 involves the use of psychoactive medications, except when provided as
15 part of post-operative care or in response to an acute illness and
16 treatment is reasonably expected to be administered over a period of
17 forty-eight hours or less, or when provided in an emergency.
18 (b) A decision to provide major medical treatment, made in accordance
19 with the following requirements, shall be authorized for an adult
20 patient who has been determined to lack decision-making capacity pursu-
21 ant to section twenty-nine hundred ninety-four-c of this article.
22 (i) An attending [physician or attending nurse] practitioner shall
23 make a recommendation in consultation with hospital staff directly
24 responsible for the patient's care.
25 (ii) In a general hospital, at least one other physician [or], nurse
26 practitioner or physician assistant designated by the hospital must
27 independently determine that he or she concurs that the recommendation
28 is appropriate.
29 (iii) In a residential health care facility, and for a hospice patient
30 not in a general hospital, the medical director of the facility or
31 hospice, or a physician [or], nurse practitioner or physician assistant
32 designated by the medical director, must independently determine that he
33 or she concurs that the recommendation is appropriate; provided that if
34 the medical director is the patient's attending [physician or attending
35 nurse] practitioner, a different physician [or], nurse practitioner or
36 physician assistant designated by the residential health care facility
37 or hospice must make this independent determination. Any health or
38 social services practitioner employed by or otherwise formally affil-
39 iated with the facility or hospice may provide a second opinion for
40 decisions about physical restraints made pursuant to this subdivision.
41 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A
42 court of competent jurisdiction may make a decision to withhold or with-
43 draw life-sustaining treatment for an adult patient who has been deter-
44 mined to lack decision-making capacity pursuant to section twenty-nine
45 hundred ninety-four-c of this article if the court finds that the deci-
46 sion accords with standards for decisions for adults set forth in subdi-
47 visions four and five of section twenty-nine hundred ninety-four-d of
48 this article.
49 (b) If the attending [physician or attending nurse] practitioner, with
50 independent concurrence of a second physician [or], nurse practitioner
51 or physician assistant designated by the hospital, determines to a
52 reasonable degree of medical certainty that:
53 (i) life-sustaining treatment offers the patient no medical benefit
54 because the patient will die imminently, even if the treatment is
55 provided; and
A. 1162--A 20
1 (ii) the provision of life-sustaining treatment would violate accepted
2 medical standards, then such treatment may be withdrawn or withheld from
3 an adult patient who has been determined to lack decision-making capaci-
4 ty pursuant to section twenty-nine hundred ninety-four-c of this arti-
5 cle, without judicial approval. This paragraph shall not apply to any
6 treatment necessary to alleviate pain or discomfort.
7 5-a. Decisions regarding hospice care. An attending [physician or
8 attending nurse] practitioner shall be authorized to make decisions
9 regarding hospice care and execute appropriate documents for such deci-
10 sions (including a hospice election form) for an adult patient under
11 this section who is hospice eligible in accordance with the following
12 requirements.
13 (a) The attending [physician or attending nurse] practitioner shall
14 make decisions under this section in consultation with staff directly
15 responsible for the patient's care, and shall base his or her decisions
16 on the standards for surrogate decisions set forth in subdivisions four
17 and five of section twenty-nine hundred ninety-four-d of this article;
18 (b) There is a concurring opinion as follows:
19 (i) in a general hospital, at least one other physician [or], nurse
20 practitioner or physician assistant designated by the hospital must
21 independently determine that he or she concurs that the recommendation
22 is consistent with such standards for surrogate decisions;
23 (ii) in a residential health care facility, the medical director of
24 the facility, or a physician [or], nurse practitioner or physician
25 assistant designated by the medical director, must independently deter-
26 mine that he or she concurs that the recommendation is consistent with
27 such standards for surrogate decisions; provided that if the medical
28 director is the patient's attending [physician or attending nurse] prac-
29 titioner, a different physician [or], nurse practitioner or physician
30 assistant designated by the residential health care facility must make
31 this independent determination; or
32 (iii) in settings other than a general hospital or residential health
33 care facility, the medical director of the hospice, or a physician
34 designated by the medical director, must independently determine that he
35 or she concurs that the recommendation is medically appropriate and
36 consistent with such standards for surrogate decisions; provided that if
37 the medical director is the patient's attending physician, a different
38 physician designated by the hospice must make this independent determi-
39 nation; and
40 (c) The ethics review committee of the general hospital, residential
41 health care facility or hospice, as applicable, including at least one
42 physician [or], nurse practitioner or physician assistant who is not the
43 patient's attending [physician or attending nurse] practitioner, or a
44 court of competent jurisdiction, must review the decision and determine
45 that it is consistent with such standards for surrogate decisions.
46 6. Physician [or], nurse practitioner or physician assistant
47 objection. If a physician [or], nurse practitioner or physician assist-
48 ant consulted for a concurring opinion objects to an attending [physi-
49 cian's or attending nurse] practitioner's recommendation or determi-
50 nation made pursuant to this section, or a member of the hospital staff
51 directly responsible for the patient's care objects to an attending
52 [physician's or attending nurse] practitioner's recommendation about
53 major medical treatment or treatment without medical benefit, the matter
54 shall be referred to the ethics review committee if it cannot be other-
55 wise resolved.
A. 1162--A 21
1 § 28. Section 2994-j of the public health law, as amended by chapter
2 430 of the laws of 2017, is amended to read as follows:
3 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
4 guardian of a minor patient may at any time revoke his or her consent to
5 withhold or withdraw life-sustaining treatment by informing an attending
6 [physician, attending nurse] practitioner or a member of the medical or
7 nursing staff of the revocation.
8 2. An attending [physician or attending nurse] practitioner informed
9 of a revocation of consent made pursuant to this section shall imme-
10 diately:
11 (a) record the revocation in the patient's medical record;
12 (b) cancel any orders implementing the decision to withhold or with-
13 draw treatment; and
14 (c) notify the hospital staff directly responsible for the patient's
15 care of the revocation and any cancellations.
16 3. Any member of the medical or nursing staff, other than a nurse
17 practitioner or physician assistant, informed of a revocation made
18 pursuant to this section shall immediately notify an attending [physi-
19 cian or attending nurse] practitioner of the revocation.
20 § 29. The opening paragraph of subdivision 2 of section 2994-k of the
21 public health law, as amended by chapter 430 of the laws of 2017, is
22 amended to read as follows:
23 If a decision to withhold or withdraw life-sustaining treatment has
24 been made pursuant to this article, and an attending [physician or
25 attending nurse] practitioner determines at any time that the decision
26 is no longer appropriate or authorized because the patient has regained
27 decision-making capacity or because the patient's condition has other-
28 wise improved, the physician [or], nurse practitioner or physician
29 assistant shall immediately:
30 § 30. Section 2994-l of the public health law, as amended by chapter
31 430 of the laws of 2017, is amended to read as follows:
32 § 2994-l. Interinstitutional transfers. If a patient with an order to
33 withhold or withdraw life-sustaining treatment is transferred from a
34 mental hygiene facility to a hospital or from a hospital to a different
35 hospital, any such order or plan shall remain effective until an attend-
36 ing [physician or attending nurse] practitioner first examines the
37 transferred patient, whereupon an attending [physician or attending
38 nurse] practitioner must either:
39 1. Issue appropriate orders to continue the prior order or plan. Such
40 orders may be issued without obtaining another consent to withhold or
41 withdraw life-sustaining treatment pursuant to this article; or
42 2. Cancel such order, if the attending [physician or attending nurse]
43 practitioner determines that the order is no longer appropriate or
44 authorized. Before canceling the order the attending [physician or
45 attending nurse] practitioner shall make reasonable efforts to notify
46 the person who made the decision to withhold or withdraw treatment and
47 the hospital staff directly responsible for the patient's care of any
48 such cancellation. If such notice cannot reasonably be made prior to
49 canceling the order or plan, the attending [physician or attending
50 nurse] practitioner shall make such notice as soon as reasonably practi-
51 cable after cancellation.
52 § 31. Subdivisions 3 and 4 of section 2994-m of the public health law,
53 as amended by chapter 430 of the laws of 2017, are amended to read as
54 follows:
55 3. Committee membership. The membership of ethics review committees
56 must be interdisciplinary and must include at least five members who
A. 1162--A 22
1 have demonstrated an interest in or commitment to patient's rights or to
2 the medical, public health, or social needs of those who are ill. At
3 least three ethics review committee members must be health or social
4 services practitioners, at least one of whom must be a registered nurse
5 and one of whom must be a physician [or], nurse practitioner or physi-
6 cian assistant. At least one member must be a person without any gover-
7 nance, employment or contractual relationship with the hospital. In a
8 residential health care facility the facility must offer the residents'
9 council of the facility (or of another facility that participates in the
10 committee) the opportunity to appoint up to two persons to the ethics
11 review committee, none of whom may be a resident of or a family member
12 of a resident of such facility, and both of whom shall be persons who
13 have expertise in or a demonstrated commitment to patient rights or to
14 the care and treatment of the elderly or nursing home residents through
15 professional or community activities, other than activities performed as
16 a health care provider.
17 4. Procedures for ethics review committee. (a) These procedures are
18 required only when: (i) the ethics review committee is convened to
19 review a decision by a surrogate to withhold or withdraw life-sustaining
20 treatment for: (A) a patient in a residential health care facility
21 pursuant to paragraph (b) of subdivision five of section twenty-nine
22 hundred ninety-four-d of this article; (B) a patient in a general hospi-
23 tal pursuant to paragraph (c) of subdivision five of section twenty-nine
24 hundred ninety-four-d of this article; or (C) an emancipated minor
25 patient pursuant to subdivision three of section twenty-nine hundred
26 ninety-four-e of this article; or (ii) when a person connected with the
27 case requests the ethics review committee to provide assistance in
28 resolving a dispute about proposed care. Nothing in this section shall
29 bar health care providers from first striving to resolve disputes
30 through less formal means, including the informal solicitation of
31 ethical advice from any source.
32 (b)(i) A person connected with the case may not participate as an
33 ethics review committee member in the consideration of that case.
34 (ii) The ethics review committee shall respond promptly, as required
35 by the circumstances, to any request for assistance in resolving a
36 dispute or consideration of a decision to withhold or withdraw life-sus-
37 taining treatment pursuant to paragraphs (b) and (c) of subdivision five
38 of section twenty-nine hundred ninety-four-d of this article made by a
39 person connected with the case. The committee shall permit persons
40 connected with the case to present their views to the committee, and to
41 have the option of being accompanied by an advisor when participating in
42 a committee meeting.
43 (iii) The ethics review committee shall promptly provide the patient,
44 where there is any indication of the patient's ability to comprehend the
45 information, the surrogate, other persons on the surrogate list directly
46 involved in the decision or dispute regarding the patient's care, any
47 parent or guardian of a minor patient directly involved in the decision
48 or dispute regarding the minor patient's care, an attending [physician,
49 an attending nurse] practitioner, the hospital, and other persons the
50 committee deems appropriate, with the following:
51 (A) notice of any pending case consideration concerning the patient,
52 including, for patients, persons on the surrogate list, parents and
53 guardians, information about the ethics review committee's procedures,
54 composition and function; and
55 (B) the committee's response to the case, including a written state-
56 ment of the reasons for approving or disapproving the withholding or
A. 1162--A 23
1 withdrawal of life-sustaining treatment for decisions considered pursu-
2 ant to subparagraph (ii) of paragraph (a) of subdivision five of section
3 twenty-nine hundred ninety-four-d of this article. The committee's
4 response to the case shall be included in the patient's medical record.
5 (iv) Following ethics review committee consideration of a case
6 concerning the withdrawal or withholding of life-sustaining treatment,
7 treatment shall not be withdrawn or withheld until the persons identi-
8 fied in subparagraph (iii) of this paragraph have been informed of the
9 committee's response to the case.
10 (c) When an ethics review committee is convened to review decisions
11 regarding hospice care for a patient in a general hospital or residen-
12 tial health care facility, the responsibilities of this section shall be
13 carried out by the ethics review committee of the general hospital or
14 residential health care facility, provided that such committee shall
15 invite a representative from hospice to participate.
16 § 32. Paragraph (b) of subdivision 4 of section 2994-r of the public
17 health law, as amended by chapter 430 of the laws of 2017, is amended to
18 read as follows:
19 (b) The following persons may commence a special proceeding in a court
20 of competent jurisdiction to seek appointment as the health care guardi-
21 an of a minor patient solely for the purpose of deciding about life-sus-
22 taining treatment pursuant to this article:
23 (i) the hospital administrator;
24 (ii) an attending [physician or attending nurse] practitioner;
25 (iii) the local commissioner of social services or the local commis-
26 sioner of health, authorized to make medical treatment decisions for the
27 minor pursuant to section three hundred eighty-three-b of the social
28 services law; or
29 (iv) an individual, eighteen years of age or older, who has assumed
30 care of the minor for a substantial and continuous period of time.
31 § 33. Subdivision 1 of section 2994-s of the public health law, as
32 amended by chapter 430 of the laws of 2017, is amended to read as
33 follows:
34 1. Any hospital, attending [physician or nurse] practitioner that
35 refuses to honor a health care decision by a surrogate made pursuant to
36 this article and in accord with the standards set forth in this article
37 shall not be entitled to compensation for treatment, services, or proce-
38 dures refused by the surrogate, except that this subdivision shall not
39 apply:
40 (a) when a hospital, physician [or], nurse practitioner or physician
41 assistant exercises the rights granted by section twenty-nine hundred
42 ninety-four-n of this article, provided that the physician, nurse prac-
43 titioner, physician assistant or hospital promptly fulfills the obli-
44 gations set forth in section twenty-nine hundred ninety-four-n of this
45 article;
46 (b) while a matter is under consideration by the ethics review commit-
47 tee, provided that the matter is promptly referred to and considered by
48 the committee;
49 (c) in the event of a dispute between individuals on the surrogate
50 list; or
51 (d) if the physician, nurse practitioner, physician assistant or
52 hospital prevails in any litigation concerning the surrogate's decision
53 to refuse the treatment, services or procedure. Nothing in this section
54 shall determine or affect how disputes among individuals on the surro-
55 gate list are resolved.
A. 1162--A 24
1 § 34. Subdivision 2 of section 2994-aa of the public health law, as
2 amended by chapter 430 of the laws of 2017, is amended to read as
3 follows:
4 2. "Attending [physician"] practitioner" means the physician, nurse
5 practitioner or physician assistant who has primary responsibility for
6 the treatment and care of the patient. Where more than one physician
7 [or], nurse practitioner or physician assistant shares such responsibil-
8 ity, any such physician [or], nurse practitioner or physician assistant
9 may act as the attending [physician or attending nurse] practitioner
10 pursuant to this article.
11 § 35. Section 2994-cc of the public health law, as amended by chapter
12 430 of the laws of 2017, is amended to read as follows:
13 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An
14 adult with decision-making capacity, a health care agent, or a surrogate
15 may consent to a nonhospital order not to resuscitate orally to the
16 attending [physician or attending nurse] practitioner or in writing. If
17 a patient consents to a nonhospital order not to resuscitate while in a
18 correctional facility, notice of the patient's consent shall be given to
19 the facility director and reasonable efforts shall be made to notify an
20 individual designated by the patient to receive such notice prior to the
21 issuance of the nonhospital order not to resuscitate. Notification to
22 the facility director or the individual designated by the patient shall
23 not delay issuance of a nonhospital order not to resuscitate.
24 2. Consent by a health care agent shall be governed by article twen-
25 ty-nine-C of this chapter.
26 3. Consent by a surrogate shall be governed by article twenty-nine-CC
27 of this chapter, except that: (a) a second determination of capacity
28 shall be made by a health or social services practitioner; and (b) the
29 authority of the ethics review committee set forth in article
30 twenty-nine-CC of this chapter shall apply only to nonhospital orders
31 issued in a hospital.
32 4. (a) When the concurrence of a second physician [or], nurse practi-
33 tioner or physician assistant is sought to fulfill the requirements for
34 the issuance of a nonhospital order not to resuscitate for patients in a
35 correctional facility, such second physician [or], nurse practitioner or
36 physician assistant shall be selected by the chief medical officer of
37 the department of corrections and community supervision or his or her
38 designee.
39 (b) When the concurrence of a second physician [or], nurse practition-
40 er or physician assistant is sought to fulfill the requirements for the
41 issuance of a nonhospital order not to resuscitate for hospice and home
42 care patients, such second physician [or] , nurse practitioner or physi-
43 cian assistant shall be selected by the hospice medical director or
44 hospice nurse coordinator designated by the medical director or by the
45 home care services agency director of patient care services, as appro-
46 priate to the patient.
47 5. Consent by a patient or a surrogate for a patient in a mental
48 hygiene facility shall be governed by article twenty-nine-B of this
49 chapter.
50 § 36. Section 2994-dd of the public health law, as amended by chapter
51 430 of the laws of 2017, is amended to read as follows:
52 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The
53 attending [physician or attending nurse] practitioner shall record the
54 issuance of a nonhospital order not to resuscitate in the patient's
55 medical record.
A. 1162--A 25
1 2. A nonhospital order not to resuscitate shall be issued upon a stan-
2 dard form prescribed by the commissioner. The commissioner shall also
3 develop a standard bracelet that may be worn by a patient with a nonhos-
4 pital order not to resuscitate to identify that status; provided, howev-
5 er, that no person may require a patient to wear such a bracelet and
6 that no person may require a patient to wear such a bracelet as a condi-
7 tion for honoring a nonhospital order not to resuscitate or for provid-
8 ing health care services.
9 3. An attending [physician or attending nurse] practitioner who has
10 issued a nonhospital order not to resuscitate, and who transfers care of
11 the patient to another physician [or], nurse practitioner or physician
12 assistant, shall inform the physician [or], nurse practitioner or physi-
13 cian assistant of the order.
14 4. For each patient for whom a nonhospital order not to resuscitate
15 has been issued, the attending [physician or attending nurse] practi-
16 tioner shall review whether the order is still appropriate in light of
17 the patient's condition each time he or she examines the patient, wheth-
18 er in the hospital or elsewhere, but at least every ninety days,
19 provided that the review need not occur more than once every seven days.
20 The attending [physician or attending nurse] practitioner shall record
21 the review in the patient's medical record provided, however, that a
22 physician assistant or a registered nurse, other than the attending
23 nurse practitioner, who provides direct care to the patient may record
24 the review in the medical record at the direction of the physician. In
25 such case, the attending [physician or attending nurse] practitioner
26 shall include a confirmation of the review in the patient's medical
27 record within fourteen days of such review. Failure to comply with this
28 subdivision shall not render a nonhospital order not to resuscitate
29 ineffective.
30 5. A person who has consented to a nonhospital order not to resusci-
31 tate may at any time revoke his or her consent to the order by any act
32 evidencing a specific intent to revoke such consent. Any health care
33 professional, other than the attending [physician or attending nurse]
34 practitioner, informed of a revocation of consent to a nonhospital order
35 not to resuscitate shall notify the attending [physician or attending
36 nurse] practitioner of the revocation. An attending [physician or
37 attending nurse] practitioner who is informed that a nonhospital order
38 not to resuscitate has been revoked shall record the revocation in the
39 patient's medical record, cancel the order and make diligent efforts to
40 retrieve the form issuing the order, and the standard bracelet, if any.
41 6. The commissioner may authorize the use of one or more alternative
42 forms for issuing a nonhospital order not to resuscitate (in place of
43 the standard form prescribed by the commissioner under subdivision two
44 of this section). Such alternative form or forms may also be used to
45 issue a non-hospital do not intubate order. Any such alternative forms
46 intended for use for persons with developmental disabilities or persons
47 with mental illness who are incapable of making their own health care
48 decisions or who have a guardian of the person appointed pursuant to
49 article eighty-one of the mental hygiene law or article seventeen-A of
50 the surrogate's court procedure act must also be approved by the commis-
51 sioner of developmental disabilities or the commissioner of mental
52 health, as appropriate. An alternative form under this subdivision shall
53 otherwise conform with applicable federal and state law. This subdivi-
54 sion does not limit, restrict or impair the use of an alternative form
55 for issuing an order not to resuscitate in a general hospital or resi-
56 dential health care facility under article twenty-eight of this chapter
A. 1162--A 26
1 or a hospital under subdivision ten of section 1.03 of the mental
2 hygiene law.
3 § 37. Subdivision 2 of section 2994-ee of the public health law, as
4 amended by chapter 430 of the laws of 2017, is amended to read as
5 follows:
6 2. Hospital emergency services physicians and hospital emergency
7 services nurse practitioners and physician assistants may direct that
8 the order be disregarded if other significant and exceptional medical
9 circumstances warrant disregarding the order.
10 § 38. This act shall take effect on the one hundred eightieth day
11 after it shall have become a law; provided, however that if chapter 342
12 of the laws of 2018 shall not have taken effect on or before such date,
13 then sections seventeen, eighteen, nineteen and twenty of this act shall
14 take effect on the same date and in the same manner as such chapter 342
15 of the laws of 2018, takes effect. Effective immediately, any rules and
16 regulations necessary to implement the provisions of this act on its
17 effective date are authorized and directed to be amended, repealed
18 and/or promulgated on or before such date.