A07729 Summary:

BILL NOA07729D
 
SAME ASSAME AS S03164-B
 
SPONSORGottfried (MS)
 
COSPNSRSchimminger, Bacalles, Barron, Boyland, Brennan, Cahill, Castro, DelMonte, Dinowitz, Finch, Gabryszak, Galef, Gunther, Jaffee, Kellner, Koon, Lancman, Lopez V, Magnarelli, Peoples-Stokes, Spano, Stirpe, Towns, Schroeder, Brodsky, Hoyt, Perry, Conte, Christensen, Powell, Kavanagh
 
MLTSPNSRAbbate, Alessi, Aubry, Benedetto, Bing, Burling, Calhoun, Clark, Cook, Crouch, Cymbrowitz, Destito, Duprey, Englebright, Errigo, Fields, Gantt, Gianaris, Giglio, Glick, Gordon, Hikind, Hooper, Hyer-Spencer, Jacobs, John, Latimer, Lavine, Lifton, Lupardo, Magee, Maisel, Markey, Mayersohn, McDonough, McEneny, Meng, Millman, Molinaro, Morelle, Nolan, O'Donnell, Ortiz, Paulin, Pheffer, Pretlow, Reilly, Rivera N, Rivera P, Robinson, Rosenthal, Saladino, Scarborough, Schimel, Scozzafava, Skartados, Sweeney, Thiele, Titone, Weinstein, Weisenberg, Wright, Zebrowski
 
Rpld S2961 subs 7, 10, 13 & 16, S2964 subs 3 & 4, S2965 sub 4 (c), sub 5, S2966 sub 2, S2967 sub 2 (c), S2977, S2978 sub 1, amd Pub Health L, generally; amd S81.22, rpld S81.29 sub (e), Ment Hyg L; amd S1750-b, SCPA
 
Creates the family health care decision act; establishes procedures for family members, surrogates and others close to an incapacitated patient making health care decisions on behalf of patients unable to decide about treatment for themselves in accordance with special procedures, standards and safeguards.
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A07729 Actions:

BILL NOA07729D
 
04/22/2009referred to health
05/12/2009reported referred to codes
06/16/2009amend (t) and recommit to codes
06/16/2009print number 7729a
06/19/2009amend and recommit to codes
06/19/2009print number 7729b
06/19/2009amend and recommit to codes
06/19/2009print number 7729c
01/06/2010referred to health
01/12/2010reported referred to codes
01/13/2010amend and recommit to codes
01/13/2010print number 7729d
01/20/2010reported referred to rules
01/20/2010reported
01/20/2010rules report cal.4
01/20/2010ordered to third reading rules cal.4
01/20/2010passed assembly
01/20/2010delivered to senate
01/20/2010REFERRED TO HEALTH
02/24/2010SUBSTITUTED FOR S3164B
02/24/20103RD READING CAL.129
02/24/2010PASSED SENATE
02/24/2010RETURNED TO ASSEMBLY
03/05/2010delivered to governor
03/16/2010signed chap.8
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A07729 Floor Votes:

DATE:01/20/2010Assembly Vote  YEA/NAY: 137/5
Yes
Abbate
ER
Carrozza
Yes
Galef
Yes
Koon
Yes
O'Donnell
Yes
Scarborough
Yes
Alessi
Yes
Castro
Yes
Gantt
Yes
Lancman
Yes
O'Mara
Yes
Schimel
Yes
Alfano
Yes
Christensen
Yes
Gianaris
Yes
Latimer
Yes
Ortiz
Yes
Schimminger
Yes
Amedore
Yes
Clark
Yes
Gibson
Yes
Lavine
Yes
Parment
Yes
Schroeder
Yes
Arroyo
Yes
Colton
Yes
Giglio
Yes
Lentol
Yes
Paulin
Yes
Scozzafava
Yes
Aubry
Yes
Conte
Yes
Glick
Yes
Lifton
Yes
Peoples
Yes
Skartados
Yes
Bacalles
Yes
Cook
Yes
Gordon
Yes
Lopez PD
Yes
Peralta
Yes
Spano
Yes
Ball
Yes
Corwin
Yes
Gottfried
Yes
Lopez VJ
Yes
Perry
Yes
Stirpe
Yes
Barclay
Yes
Crespo
Yes
Gunther
Yes
Lupardo
Yes
Pheffer
Yes
Sweeney
Yes
Barra
Yes
Crouch
Yes
Hawley
Yes
Magee
Yes
Powell
Yes
Tedisco
Yes
Barron
No
Cusick
No
Hayes
Yes
Magnarelli
Yes
Pretlow
Yes
Thiele
Yes
Benedetto
Yes
Cymbrowitz
Yes
Heastie
Yes
Maisel
Yes
Quinn
Yes
Titone
Yes
Benjamin
Yes
DelMonte
Yes
Hevesi
Yes
Markey
Yes
Rabbitt
Yes
Titus
Yes
Bing
Yes
DenDekker
ER
Hikind
Yes
Mayersohn
Yes
Raia
No
Tobacco
Yes
Boyland
ER
Destito
Yes
Hooper
Yes
McDonough
Yes
Ramos
Yes
Towns
Yes
Boyle
Yes
Dinowitz
Yes
Hoyt
Yes
McEneny
Yes
Reilich
Yes
Townsend
Yes
Brennan
Yes
Duprey
Yes
Hyer Spencer
Yes
McKevitt
Yes
Reilly
Yes
Weinstein
ER
Brodsky
Yes
Englebright
Yes
Jacobs
Yes
Meng
Yes
Rivera J
Yes
Weisenberg
Yes
Brook Krasny
Yes
Errigo
Yes
Jaffee
Yes
Miller JM
Yes
Rivera N
Yes
Wright
Yes
Burling
Yes
Espaillat
Yes
Jeffries
Yes
Miller M
Yes
Rivera PM
Yes
Zebrowski
Yes
Butler
Yes
Farrell
Yes
John
Yes
Millman
Yes
Robinson
Yes
Mr. Speaker
Yes
Cahill
Yes
Fields
Yes
Jordan
Yes
Molinaro
Yes
Rosenthal
Yes
Calhoun
Yes
Finch
Yes
Kavanagh
Yes
Morelle
Yes
Russell
Yes
Camara
No
Fitzpatrick
Yes
Kellner
Yes
Nolan
Yes
Saladino
Yes
Canestrari
Yes
Gabryszak
No
Kolb
Yes
Oaks
Yes
Sayward

‡ Indicates voting via videoconference
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A07729 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7729D              REVISED 1/26/10
 
SPONSOR: Gottfried (MS)
  TITLE OF BILL: An act to amend the public health law, the mental hygiene law and the surrogate's court procedure act, in relation to establishing procedures for making medical treatment decisions on behalf of persons who lack the capacity to decide about treatment for them- selves; directing the New York state task force on life and law to form a special advisory committee to consider the procedures and practices for withholding or withdrawal of life sustaining treatment for patients with mental illness or mental retardation and developmental disabili- ties; and to repeal certain provisions of the public health law and the mental hygiene law relating thereto   PURPOSE: To establish procedures for making health care decisions on behalf of patients unable to decide about treatment for themselves.   SUMMARY OF PROVISIONS: Section one establishes a legislative intent for the Public Health Law Article 29-CC and 29-CCC, Family Health Care Decisions Act and Non-Hospital Orders Not To Resuscitate. The bill enables family members and others close to an incapacitated patient to make health care decisions in accord with special procedures, standards and safeguards. Section two amends the Public Health Law by adding new Articles 29-CC and 29-CCC, entitled "Family Health Care Decisions Act" and "Non-Hospi- tal Orders Not To Resuscitate". Article 29-CCC makes conforming and technical changes with respect to New York's existing law on do-not-re- suscitate orders. The new family health care decision-making article would establish procedures authorizing family members, or other persons close to patients who lack decision-making capacity, to decide about treatment, in consultation with health care professionals and in accord with speci- fied safeguards. The article includes special procedures and standards for decisions about life-sustaining treatments. Section 2994-a defines several terms used in Article 29-CC as follows: *"Hospital" means a general hospital (excluding OMH-licensed mental health units) and a residential health care facility as defined in Arti- cle 28 of the Public Health Law. *"Patient" is defined as a person admitted to a hospital. *A "surrogate" is a person selected to make a health care decision for a patient pursuant to the article. Certain definitions pertain to health care decisions for minor patients. *A "parent of a minor child" is defined as a parent who has custody of, or who has maintained substantial and continuous contact with, the minor patient. *A "guardian of a minor" or "guardian" means a legal guardian of the person of a minor, or a "health care guardian," defined as a court appointed guardian authorized to decide about life-sustaining treatment pursuant to the article. *"Emancipated minor patient" is a minor patient who is 16 years of age or older and living independently from his or her parents or guardian, or a minor who is the parent of a child. *"Ethics review committee" means the interdisciplinary committee estab- lished in a hospital in accord with the requirements of the article. *"Health care" is any treatment, service or procedure to diagnose or treat an individual's physical or mental condition. Providing artificial nutrition and hydration orally, without reliance on medical treatment, is not health care under this article and is not subject to this arti- cle. Section 2994-b provides that the act applies to health care decisions for care provided in a hospital. It also provides that the patient has a health care agent; decisions for the patient are governed by the health care proxy law, article 29-c of the Public Health Law. Similarly, if the patient has a guardian appointed under article 17 A of the Surro- gate's Court Procedure Act, or if surrogate decisions could be made for the patient pursuant to section 1750-b of the Surrogate's Court Proce- dure Act or pursuant to OMH or OMRDD regulations, then decisions for the patient are governed by those laws or regulations and not by the provisions of this act. Section 2994-c governs the determination of patient incapacity for purposes of authorizing surrogate decisions for adult patients. It creates a presumption that every adult has capacity to decide about treatment unless determined otherwise pursuant to procedures set forth in the section, or pursuant to court order. The section requires an attending physician to determines that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health or social service practitioner employed by or otherwise formally affiliated with the facility must concur. In a general hospi- tal, this concurrence is required for a surrogate decision to forgo life-sustaining treatment. Hospitals must adopt written policies identi- fying the training and credentials of professionals qualified to provide the concurring opinion. For patients with a mental illness or develop- mental disability, a professional with training or expertise in diagnos- ing or treating the mental illness or developmental disability must provide the concurring opinion. Health care professionals must inform the patient of the determination of incapacity, if there is any indi- cation that the patient can understand the information. The person high- est on the surrogate list must also be informed. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate's decision, the patient's objection prevails, unless a court determines otherwise. The attending physician must confirm that the patient lacks decision making capacity before complying with health care decisions. This confirmation is not required for treatments provided as part of a course of treatment authorized by consent provided at the time of the initial determination of incapacity. Section 2994-d concerns adult patients who lack capacity to make partic- ular health care decisions. It lists, in order of priority, the persons who may act as a surrogate, excluding administrators, employees and independent contractors of the hospital caring for the patient, unless they are related to the patient, or were a close friend of the patient before the patient's admission to the facility. A court-appointed guar- dian is the first person on the list, followed by: the spouse or domes- tic partner; child older than 18; a parent; a sibling; or a close adult friend or relative familiar with the patient's personal, religious and moral views regarding health care. This section grants the surrogate authority to make all health care decisions for the patient that the adult patient could make for himself or herself, subject to the standards and limitations of the article. The section establishes the duty of health care providers to give the surro- gate medical information and clinical records necessary to make informed decisions for the patient. Surrogates have a right and duty to seek this information. Section 2994-d requires the surrogate to decide about the treatment based on the patient's wishes, including the patient's religious and moral beliefs, or, if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, based on the patient's best interest. The section authorizes decisions to withhold or withdraw life-sustaining treatment if treatment would be an extraordinary burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or excessively burdensome under the circumstances. The determination of terminal illness, permanent uncon- sciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted standards of medical practice. The surrogate must determine if treatment would be an extraordinary burden in light of the patient's own wishes, preferences, and values, to the extent possible. In residential health care facilities, a surrogate can decide to forgo life-sustaining treatment for patients who are not terminally ill or permanently unconscious only if the Ethics Review Committee, including at least one physician not directly responsible for the patient's care, or a court, reviews the decision and determine that the decision meets the standards set forth in the article for such deci- sions. In a general hospital, if the attending physician objects to a surrogate's decision to forgo artificial nutrition and hydration for a patient who is not terminally ill or permanently unconscious, the deci- sion may not be implemented until the Ethics Review Committee, including at least one physician who is not directly responsible for the patient's care, or a court, reviews the decision and determines that it meets the standards set forth in the article for such decisions. The words "exces- sive" and "excessively", in earlier versions of the bill, have been changed to "extraordinary" and "extraordinarily". This change of words was made to follow the wording under Surrogate's Court Procedure Act § 1750-b. However this change in wording does not change the meaning of this provision. Section 2994-e authorizes the parent or guardian of a minor patient to decide about life-sustaining treatment, in accord with the same stand- ards that apply to surrogate decisions for adults. In addition, if a minor has the decisional capacity to decide about life-sustaining treat- ment, the minor's consent is required to withhold or to stop treatment. If the minor is emancipated and has decision-making capacity, the minor can decide to withhold or withdraw life-sustaining treatment on his or her own behalf, if: (i) the attending physician and the ethics review committee determine that the decision accords with the standards for surrogate decisions for adults, and (ii) the ethics review committee approves the decision. If the hospital can with reasonable efforts ascertain the identity of an emancipated minor's non-custodial parent or guardian, the hospital must notify the parent prior to discontinuing treatment. If a parent or guardian objects to the decision, the article establishes his or her right to refer the matter to the ethics review committee. Section 2994-f requires the attending physician to inform a surrogate promptly if the physician objects to a decision to withdraw or withhold life-sustaining treatment. The objecting physician must then either make all reasonable efforts to transfer the patient to another physician, if necessary, or promptly refer the matter to the ethics review committee. The section also obligates physicians to refer objections by or disa- greement among family members and others close to the patient to the ethics review committee. Section 2994-g establishes a procedure for making health care decisions for adult patients who have lost decision-making capacity and have no available family member or friend to act as a surrogate. It applies the same standards that govern decisions for adults by family or others close to them, including the special safeguards for decisions about life-sustaining treatment. The section authorizes the attending physi- cian to decide about routine medical treatment for patients without surrogates. Routine treatment is defined to include only procedures for which physicians ordinarily do not seek specific consent from the patient or others. For decisions about major medical treatment, the attending physician must consult with hospital staff directly involved with the patient's care and at least one other physician selected by the hospital must concur in the appropriateness of the decision. A recommen- dation by an attending physician to withhold or withdraw life-sustaining treatment from a patient who does not have a surrogate may not be imple- mented unless it meets one of two requirements: One requirement is review and approval by a court. The court must determine whether the decision satisfies the specified standards for decision by surrogates to withhold or withdraw life-sustaining treatment. Alternatively, if the attending physician determines that: (i) life-sustaining treatment offers the patient no medical benefit because the patient will die immi- nently; and (ii) the provision of life-sustaining treatment would violate acceptable medical standards, and one other physician concurs in this determination, life-sustaining treatment may be withdrawn or with- held without review by a court. Section 2994-i sets forth specific policies for do-not-resuscitate (DNR) orders, requiring all such orders to be written in the patient's record and clarifying that the orders provide consent to withhold only cardiop- ulmonary resuscitation, not other treatments. Section 2994-j establishes that a patient, surrogate, or parent or guar- dian of a minor patient may at any time revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff. Section 2994-k states that hospitals must adopt written policies requir- ing implementation and regular review of decisions to withhold or with- draw life-sustaining treatment, in accord with accepted medical stand- ards. It also provides that whenever an attending physician determines that a decision to withhold or withdraw life-sustaining treatment is no longer appropriate or authorized because the patient's condition has improved, the physician must include this determination in the patient's chart, cancel any orders or plans of care to withhold or withdraw treat- ment, and notify the person who made the decision and facility staff directly responsible for the patient's care. Section 2994-l governs inter-institutional transfers of patients with orders or plans of care to withhold or withdraw life-sustaining treat- ment. It establishes that orders remain effective at the receiving hospital until an attending physician first examines the patient. The physician must then either continue or cancel the prior orders. Section 2994-m requires each hospital and nursing home to establish at least one ethics review committee or participate in a committee that serves more than one facility. The committee can be an existing ethics committee, a subcommittee of an existing ethics committee, or a new committee created to fulfill the requirements of this article. Hospi- tals must adopt a written policy governing committee functions, composi- tion and procedure, in accord with specified requirements set forth in the section. Committees must be multidisciplinary and must include at least two individuals who have demonstrated an interest in or commitment to patients' rights or to the medical, public health, or social needs of those who are ill. At least one member must not be affiliated with the hospital. In nursing homes, the Committees must include a member of the residents' council, a person who is not affiliated with the facility who is a family member of a current or former resident at the same or a different facility, and a person who has demonstrated an interest in or commitment to patients' rights or to the care and treatment of the elderly or nursing home residents through professional or community activities, other than activities performed as a health care provider. Section 2994-m also specifies that recommendations and advice by the committee are advisory and non-binding, except for committee approval or disapproval of decisions to withdraw or withhold life-sustaining treat- ment in specified types of cases. A committee must permit patients, certain health care professionals, family members and others close to patients to present their concerns and views to the committee, and must inform these persons of the committee's response to the case. Section 2994-m additionally requires the committee to issue a written statement of its reasons for approving or disapproving decisions to withhold or withdraw life-sustaining treatment in certain types of cases. The committee must also routinely review surrogate and committee decisions in certain sensitive cases. Ethics review committee members are granted access to medical records and information necessary to perform their function, and are obligated to protect patient confiden- tiality. The section also protects the confidentiality of committee records and proceedings, but grants the Department of Health access to committee records and proceedings in any cases when the committee has the authority to approve a decision to forgo life-sustaining treatment. The Department may use such records in any enforcement proceeding against a health care facility or an individual health care profes- sional. Section 2994-n sets forth the right of private hospitals and individual health care providers to refuse, on grounds of moral or religious conscience, to honor health care decisions made pursuant to Article 29-CC. For a hospital to assert a conscience objection, the decision must be contrary to a formally adopted policy of the facility expressly based on sincerely held religious beliefs or sincerely held moral convictions. Such ethical or religious convictions must be central to the facility's operating principles and cannot be based on administra- tive concerns. The policy statement must be specific in order to provide adequate notice to patients and surrogates of the facility's actual policies and practices. In order to exercise an objection, the facility must have informed the patient, family, or surrogate of its policy prior to or upon admission, if reasonably possible. The section requires the hospital to cooperate in transferring the patient to anoth- er facility willing to honor the decision. If the transfer does not occur, the facility must seek judicial relief or honor the decision. Section 2994-n also recognizes that individual health care professionals may refuse to honor treatment decisions that violate their sincerely held religious or moral convictions. Individual health care providers who assert conscience objections must promptly inform the health care facility and the person who made the decision. The facility must then promptly transfer responsibility for the patient to another health care professional willing to honor the decision. Section 2994-o provides protection from civil and criminal liability for acts performed by individuals reasonably and in good faith pursuant to the article as a consultant to or a member of an ethics review commit- tee, or as a participant in an ethics review committee meeting. Health care providers who honor a health care decision reasonably and in good faith made pursuant to the article, or take other actions in good faith pursuant to the article, are protected from civil and criminal liability and charges of professional misconduct. Surrogates and parents and guar- dians of minor patients are also protected from civil and criminal liability for making a health care decision in good faith under the article. Section 2994-p states that liability for the cost of health care provided to an adult patient under Article 29 D is the same as if the patient had consented to treatment. Section 2994-q establishes that Article 29-CC does not create, impair, or supersede any rights an individual may have to make health care deci- sions for him or herself. The section clarifies that a decision by a surrogate cannot supersede or override prior decisions, wishes, or instructions by a competent adult patient, expressed orally or in writ- ing, unless the patients' decision, wishes or instructions do not apply to the particular medical circumstances under consideration. The section also clarifies that the article does not affect existing law concerning implied consent to health care in an emergency or concerning steriliza- tion, nor is it intended to permit or promote suicide, assisted suicide or euthanasia. Section 2994-r authorizes certain persons with a close relationship to a patient to commence a special proceeding with respect to disputes aris- ing under the article. The section specifically provides that courts can appoint any person from the surrogate list to act as surrogate, regard- less of that person's priority on the list, if the court determines that such appointment would best accord with the patient's wishes or, if the patient's wishes are unknown, the patient's best interests. The section also empowers a court to authorize the withholding or withdrawal of life-sustaining treatment based on a determination that forgoing treat- ment accords with the patient's wishes, or, if such wishes cannot be ascertained, with the patient's best interests. In addition, the section establishes a procedure for appointing a health care guardian for a minor patient, specifying who has standing to seek an appointment. The section provides that the court may only appoint a health care guardian if a minor's parent or legal guardian of the person is not available, willing and competent to decide about treatment for the minor. Section 2994-s establishes that any hospital or attending physician that refuses to honor a health care decision made by a surrogate in accord with the standards set forth in Article 29-CC shall not be entitled to compensation for treatment, services, or procedures provided without the surrogate's consent, except under specified circumstances. The section does not impose a penalty, but equitably resolves the matter of medical fees in cases where a surrogate exercises authority granted by the arti- cle, and the hospital insists on providing care notwithstanding surro- gate refusal. Section 2994-t requires the Commissioner of Health to promulgate regu- lations necessary to implement the article. It also requires the Commis- sioner of Health, in consultation with the Commissioners of the Office of Mental Health and Mental Retardation and Developmental Disabilities, to promulgate regulations identifying the credentials of health care professionals qualified to provide a concurring opinion of incapacity based on mental illness or developmental disability. Under Section 2994-u, the Commissioner of Health must prepare a state- ment summarizing the rights, duties, and requirements of the article, and require the dissemination of the statement. The bill also creates Article 29-CCC of the Public Health Law on "Non- Hospital Orders Not to Resuscitate" which largely reproduces the provisions currently set forth in Section 2977 of the Public Health Law. However, Article 29-CCC clarifies that home care services agency person- nel and hospice personnel, as well as emergency medical services person- nel and hospital emergency room staff, can honor non-hospital DNR orders. Section 2994-cc establishes that consent by a surrogate shall be governed by the policies set forth in Article 29-CC, except that the authority of the ethics review committee shall not apply to non-hospital orders issued outside of a hospital. In addition, the qualifications for health care professionals authorized to provide a second opinion about the patient's decision-making capacity shall be defined by regulations promulgated by the Department of Health, not by hospital policies. This assures that non-hospital orders can be issued outside of a hospital, in a physician's office or in other settings. Section 2994-cc also provides that surrogate consent to a non-hospital DNR order issued for a patient in a mental hygiene facility will be governed by Article 29-B. Section 3 amends section 2805-q of the public health law to protect the visitation rights of surrogates in health care facilities. Section 4 renames Article 29-B as "Orders Not To Resuscitate For Resi- dents of Mental Hygiene Facilities". Sections 5 and 6 repeal sections of Article 29-B of the public health law that have been incorporated into Article 29-CCC by this bill. Section 7 amends section 2961 of the public health law to add a defi- nition of "domestic partner." Section 8 clarifies that the attending physician in Article 29-B may not rely on the presumption that adults are capable of deciding about cardiopulmonary resuscitation if clinical indicia of incapacity are present. Section 9 repeals subdivision 3 of section 2964 of the public health law to eliminate the "therapeutic exception" from the DNR law. Sections 10 through 21 reconcile Article 29-CC with the existing law on do-not-resuscitate established by Article 29-B of the Public Health Law. Section 22 of the bill amends the Health Care Proxy Law (§2984, new subdivision 5) to provide that, when a health care agent directs the provision of life-sustaining treatment, the denial of which would likely result in the patient's death, a hospital or individual health care provider that does not wish to provide the treatment must comply with the agent's directions, pending transfer of the patient to a willing provider, or judicial review. Section 23 of the bill adds the definition of "life-sustaining treat- ment" to the Health Care Proxy Law (§2980, new subdivision 9-a). Section 24 of the bill amends section 81.22 of the Surrogate's Court Procedure Act to provide for guardians under Mental Hygiene Law Article 81 to act as surrogates under the Family Health Care Decisions Act, Public Health Law Article 29-CC. Section 25 of the bill repeals section 81.29 of the Surrogate's Court Procedure Act, which had limited the authority of guardians under Mental Hygiene Law Article 81 to make decisions to withdraw life-sustaining treatment. Section 26 of the bill amends section 1750-b of the Surrogate's Court Procedure Act ("Health Care Decisions for Mentally Retarded Persons") to insert a definition of "life-sustaining treatment" and to authorize the Willowbrook Consumer Advisory Board to act as guardian for certain members of the Willowbrook class action. Section 27 of the bill directs the New York State Task Force on Life and the Law to form a special advisory committee to assist it in considering whether the Family Health Care Decisions Act should be amended to incor- porate procedures, standards and practices for the withholding or with- drawal of life-sustaining treatment from patients with mental illness, or with mental retardation or development disabilities. It also directs the Task Force to consider whether the Family Health Care Decisions Act should be amended to apply in settings other than general hospitals and residential health care facilities. Section 28 provides for an effective date of the act.   EXISTING LAW: Adults (who have capacity to make decisions) have a firmly established right to accept or reject medical treatment based on the common law principle that "every individual of sound mind and adult years has a right to determine what should be done with his own body." SCHLOENDORFF V. SOC'Y OF N.Y. HOSP., 211 N.Y. 125, 129-30, 105 N.E. 92 (1914) (Cardozo, J.). A capable adult may not be treated without his or her consent, except in limited circumstances, such as in an emergency. The right to decide about treatment includes the right to refuse life-sustaining measures. IN RE EICHNER (IN RE STORAR), 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981). This right is protected by the New York State and United States Consti- tutions. RIVERS V. KATZ, 67 N.Y.2d 485,504 N.Y.S.2d 74 (1986); CRUZAN V. DIRECTOR, MISSOURI DEPT. OF HEALTH, 110 S. Ct. 2841 (1990). Two kinds of written instruments, generally referred to as "advance directives," enable persons to exercise this right after losing the ability to participate directly in decision-making: (i) written instructions about treatment, usually called a "living will," and (ii) the written appointment of a person to make health care decisions on the person's behalf. Patients can also leave advance oral instructions about treatment. The New York Court of Appeals has held that living wills and other written or oral evidence of treatment wishes provide a legal basis for withdrawing or withholding life-sustaining measures if the instructions constitute clear and convincing evidence of the patient's wishes. In re Eichner (in re Storar); In re Westchester County Medical Center (O'Connor), 72 N.Y.2d 517,534 N.Y.S.2d 886 (1988). New York court decisions have repeatedly demonstrated the difficulty of satisfying the clear and convincing evidence standard. See, e.g., O'Connor, New York's health care proxy law, Article 29-C of the Public Health Law, allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining meas- ures. The agent must make decisions in accord with the patient's wishes, or, if they are not reasonably known, in accord with the patient's best interests. Health care providers must honor the agent's decisions to the same extent as if they had been made by the patient, and are protected from liability for doing so. Although New York law does not explicitly recognize the authority of family members to consent to treatment for adult patients unable to decide for themselves, health care providers routinely turn to family members for consent. However, under legal doctrines enunciated by the New York Court of Appeals, family members or others close to patients cannot decide about life-sustaining treatment. In re Eichner (In re Storar). The health care proxy law provides an important exception to this gener- al rule, but only for individuals who have signed a proxy form. Article 29-B of the Public Health Law, governing do-not-resuscitate (DNR) orders, establishes another exception. This authorizes persons with a close relationship to the patient to decide about cardiopulmonary resus- citation. It permits a surrogate to consent to a DNR order under stand- ards similar to those proposed for Article 29-CC. For example, the order must comport with the patient's wishes, or if they are not known, with the patient's best interests. Several other New York statutes and regu- lations authorize surrogate decisions for special patient populations. For example, Article 81 of the Mental Hygiene Law empowers courts to appoint a guardian to make financial and/or personal decisions for an incompetent adult. Under Article 17-A of the Surrogate's Court Procedure Act, the court can appoint a guardian to make decisions for individuals who are mentally retarded or developmentally disabled, including deci- sions about life-sustaining treatment. Article 80 of the Mental Hygiene Law authorizes special interdisciplinary committees to decide about major or medical treatment for residents of mental hygiene facilities who are unable to decide for themselves and have no family members available to consent. A distinct body of law governs health care deci- sions about minors. In general, parents have the right and responsibil- ity to make treatment decisions for their minor children. See, e.g., Public Health Law 2504(2). This right derives from parents' Constitu- tionally protected right to rear and raise their children free from state interference. Accordingly, parental treatment decisions are accorded great deference. See, e.g., SANTO SKY V. KRAMER, 455 U.S. 645 (1982); IN RE HOFBAUER, 47 N.Y.2d 648, 419 N.Y.S.2d 936 (1979). Although persons younger than 18 years of age generally may not decide about their own health care, New York statutes contain important exceptions to this rule. For example, Section 2504(1) of the Public Health Law authorizes minors to consent to treatment if they are either married or a parent. If specified conditions are met, New York statutes also permit minors to consent to certain treatments. See, for example, Public Health Law 2305(2) (treatment for venereal disease); Mental Hygiene Law 9.13(a) and 33.21 (mental illness); Public Health Law 2504(3) (parental care); Public Health Law 3123 (blood donation); Mental Hygiene Law 21.11 and 33.21 (substance abuse); and Public Health Law 2781 (FIN-related testing). In addition, the S.S law for Birth Control and under Article 29-B of the Public Health Law, a DNR order cannot be issued for a minor without the minor's consent if the minor possesses decisional capacity. New York courts have recognized the emancipated minor doctrine for health care decisions by minors. Under this doctrine, minors are considered emanci- pated when an intentional rending of the parent-child relationship has occurred: parents have intentionally relinquished control over the minor, and the minor has intentionally withdrawn from legitimate parental control and guidance. See, e.g., ZUCKERMAN V. ZUCKERMAN, 154 A.D.2d 666,546 N.Y.S.2d 666 (2d Dept. 1989); BACH V. LONG ISLAND JEWISH HOSP., 49 Misc. 2d 207,267 N.Y.S.2d 289 (Sup. Ct., Nassau Co. 1966).   STATEMENT IN SUPPORT: Every year in health care facilities across New York State thousands of treatment decisions are made for patients unable to decide for themselves, including children, elderly patients, those temporarily impaired, those who will not regain capacity, and those never able to decide about treatment. The question for New York State policy is not whether surrogate decisions will be made, but who will make them and by what criteria. Article 29-CC provides responsible poli- cies for decisions on behalf of patients unable to decide about treat- ment for themselves. In practice, most health care providers consult family members prior to rendering treatment to an incapacitated person. However, existing law requires that a previously competent adult patient must have signed a health care proxy or left clear evidence of his or her wishes in order to forgo life-sustaining treatment. This standard is at odds with the laws of most other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treat- ment, subject to public standards. New York and Missouri are the only two states where the law explicitly denies family members this authori- ty. Clear evidence of the patient's wishes is extraordinarily difficult to provide in an age of rapid medical advances, even for medical experts. Studies also show that only 10-15% of the adult population has signed a proxy or other advance directive such as a living will. For children, neither clear evidence of wishes nor a health care proxy is ever a possibility. Most people would want and expect family members or others close to them to decide about treatment when they become too ill to decide for themselves. Our law denies this basic expectation. It also leaves family members unable to refuse treatment despite their deep commitment to respect the patient's values or their desire to discontin- ue treatment that imposes excessive burdens on the patient without offering hope for cure, recovery or relief of suffering. This legislative proposal recognizes that few families have the emotional or financial resources to pursue judicial relief. It estab- lishes a process to review sensitive cases and to resolve disputes with- in health care facilities, relying on the courts only as a last resort. This approach is consistent with the guidelines on decisions about life- sustaining treatment prepared for state court judges. Those guidelines state that "the courts should not be used as a clearinghouse for the rendering of medical decisions which are best made by the patient and family and physician of the patient. A trial court must protect itself from inappropriate involvement in a life-sustaining medical treatment case and should decline jurisdiction if there is no justifiable contro- versy." With respect to the new subdivision 5 of §2984, relating to an agent who directs the provision of life-sustaining treatment, it is intended that a court reviewing the agent's direction may override the direction only on one of the three grounds specified in §2992 or on the grounds that compliance with the agent's direction is not required by this new subdi- vision 5. The words "but not limited to" in §2992 allow an appropriate court to consider other sorts of disputes that may arise under the arti- cle; they do not expand the grounds on which the court may override an agent's direction to provide life-sustaining treatment. For patients without family members or close friends, existing practices to decide about treatment are generally informal. They do not adequately protect these patients' right to receive treatment or their interests when deci- sions about life-sustaining treatment must be made. This is a diverse patient population, including individuals who are elderly, mentally ill or homeless. Many physicians and health care facilities now decide about treatment for these patients, including decisions to provide major medical treatment or to stop life-sustaining measures. In rare cases, a health care facility or public official seeks a court order authorizing treatment, or a committee or guardian of the person has been appointed and decides about treatment. More often, the expenses and delays associ- ated with court proceedings are avoided. Sometimes health care profes- sionals wait until a patient's condition deteriorates and major medical interventions are authorized under the emergency exception to the requirement of informed consent. Other times, a patient receives treat- ment, but health care providers proceed without a clear legal substitute for patient or family consent. In either case, decisions are routinely made on an informal basis, without prospective or retrospective review. The proposed legislation provides a decision-making process for this patient population that will facilitate their access to needed treatment and permit the discontinuation of life-sustaining measures in accord with publicly approved procedures and patient-centered standards. For patients without family members or close friends, judicial approval is required for decisions to withhold or withdraw life-sustaining treat- ment. Overall, the proposed legislation promotes the wishes and interests of incapacitated patients by establishing a process for determining inca- pacity, a priority list of those who may act as surrogate, and specific standards for surrogate decisions. The bill contains many safeguards to protect the patient's interests: a family member or someone else with a close personal relationship to the patient must decide in accord with standards based on the patient's wishes and best interests; life-sus- taining treatment can only be discontinued if it is an excessive burden to the patient and specified medical criteria are satisfied; anyone on the list of potential surrogates can challenge the decision triggering further review within the facility; and, decisions that are especially sensitive must be reviewed routinely by a multidisciplinary committee. The New York State Task Force on Life and the Law concluded that deci- sions about life-sustaining treatment are best made in the context of the family or other personal relationships, with appropriate safeguards. This is what most people would want and choose for themselves. It also recognizes the importance of family and other close relationships at a time of illness. These individuals are most likely to know the patient's own views about treatment, including the patient's religious and moral beliefs. They are also most likely to be dedicated to the patient's well-being. For patients who have no natural surrogates and are there- fore most vulnerable, the proposed legislation will facilitate access to needed treatment and fulfill society's obligation to ensure that timely, responsible decisions are made on their behalf. The bill also integrates policies set forth in Article 29-CC with Arti- cle 29-B on orders not to resuscitate. This is necessary because Article 29-CC covers all treatment decisions, including decisions about cardiop- ulmonary resuscitation in hospitals. Two separate laws, one for resusci- tation decisions and one for other treatments would be confusing and hard to implement for patients, for surrogates and for health care providers. The policies set forth in Article 29-CC build on the policies and expe- rience gained with Article 29-B. Article 29-B will continue to apply to decisions about cardiopulmonary resuscitation in mental hygiene facili- ties because those facilities are not covered by Article 29-CC. The policies on non-hospital orders not to resuscitate that will be reenact- ed by the bill are essential to protect the wishes and well-being of terminally ill patients who are cared for at home and in other community settings.   LEGISLATIVE HISTORY: 1994: A7166-B - advanced to 3rd reading 1996: A6791 - reported to Rules Committee; 1995: A6791 - advanced to 3rd reading 1998: A7026 - reported to Rules Committee; 1997: A7026 - reported to Codes Committee 1999 and 2000: reported to Rules Committee 2001: A5523 - advanced to 3rd reading; 2002: A5523-A - referred to Health Committee 2003: A6315 - referred to Health Committee; 2004: A6315-A - reported to Codes Committee 2005: A5406 - reported to Codes Committee; 2006: A5406-B - passed Assembly 2007: A6993 - reported to Codes Committee; 2008: A6993-A - reported to Rules Committee   BUDGET IMPLICATIONS: The bill will have no appreciable budgetary impact.   EFFECTIVE DATE: Immediately; provided that sections 1 - 25 of the act shall take effect on the first day of the June after enactment, and provided further that effective immediately it shall be lawful for a hospital, as defined in the act, to adopt a policy that is consistent with the requirements of the act, and for a health care provider to accept and carry out a health care decision in accordance with such requirements for a patient in a hospital that has adopted such policy.
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A07729 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7729--D
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 22, 2009
                                       ___________
 
        Introduced  by  M.  of  A.  GOTTFRIED,  SCHIMMINGER,  BACALLES,  BARRON,
          BOYLAND, BRENNAN, CAHILL, CASTRO, DelMONTE, DINOWITZ,  FINCH,  GABRYS-
          ZAK, GALEF, GUNTHER, JAFFEE, KELLNER, KOON, LANCMAN, V. LOPEZ, MAGNAR-
          ELLI,  PEOPLES-STOKES, SPANO, STIRPE, TOWNS, SCHROEDER, BRODSKY, HOYT,
          PERRY, CONTE, CHRISTENSEN -- Multi-Sponsored by -- M.  of  A.  ABBATE,

          ALESSI, AUBRY, BENEDETTO, BING, BURLING, CALHOUN, CLARK, COOK, CROUCH,
          CYMBROWITZ,  DESTITO,  DUPREY,  ENGLEBRIGHT,  FIELDS, GANTT, GIANARIS,
          GIGLIO, GLICK, HIKIND, HOOPER, JACOBS, JOHN, LATIMER, LAVINE,  LIFTON,
          LUPARDO,  MAGEE,  MAISEL, MARKEY, MAYERSOHN, McDONOUGH, McENENY, MENG,
          MILLMAN, MOLINARO, MORELLE, NOLAN, O'DONNELL, ORTIZ, PAULIN,  PHEFFER,
          PRETLOW,  REILLY,  N. RIVERA, P. RIVERA, ROBINSON, ROSENTHAL, SCARBOR-
          OUGH, SCHIMEL, SKARTADOS, SWEENEY, THIELE, TITONE, WEINSTEIN,  WEISEN-
          BERG,  WRIGHT, ZEBROWSKI -- read once and referred to the Committee on
          Health -- reported and referred to the Committee on Codes -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- again reported from said  committee  with  amend-
          ments,  ordered reprinted as amended and recommitted to said committee

          --  again  reported  from  said  committee  with  amendments,  ordered
          reprinted  as amended and recommitted to said committee -- recommitted
          to the Committee on Health in accordance with Assembly Rule 3, sec.  2
          --  reported  and  referred  to  the  Committee  on Codes -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN ACT to amend the public health law, the mental hygiene  law  and  the
          surrogate's  court  procedure  act, in relation to establishing proce-
          dures for making medical treatment decisions on behalf of persons  who
          lack  the capacity to decide about treatment for themselves; directing
          the New York state task force on life and law to form a special  advi-
          sory  committee to consider the procedures and practices for withhold-

          ing or withdrawal of  life  sustaining  treatment  for  patients  with
          mental  illness  or mental retardation and developmental disabilities;
          and to repeal certain provisions of the  public  health  law  and  the
          mental hygiene law relating thereto
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05935-16-0

        A. 7729--D                          2
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative intent. Under article 29-C of the public health
     2  law,  competent  adults  have  a  powerful  way to control their medical

     3  treatment even after they lose decision-making capacity,  by  appointing
     4  someone  they  trust to decide on their behalf. This legislation fills a
     5  gap that remains in New York law. It adds, inter  alia,  a  new  article
     6  29-CC  to  the  public  health  law, which establishes a decision-making
     7  process, applicable to decisions in general hospitals and nursing homes,
     8  whereby a surrogate is selected and empowered to make health care  deci-
     9  sions for patients who lack capacity to make their own health care deci-
    10  sions  and who have not otherwise appointed an agent to make health care
    11  decisions pursuant to article 29-C of the public health law or  provided
    12  clear and convincing evidence of their treatment wishes.
    13    The legislature does not intend to encourage or discourage any partic-
    14  ular  health  care  decision  or  treatment,  or  to  create or expand a

    15  substantive right of competent adults  to  decide  about  treatment  for
    16  themselves,  or  to  impair the right of patients to object to treatment
    17  under applicable law including court decisions. Further, the legislature
    18  does not intend to authorize a surrogate to deny to the patient personal
    19  services that every patient would generally receive, such as appropriate
    20  food, water, bed rest, room temperature and  hygiene.  This  legislation
    21  establishes  a  procedure  to  facilitate responsible decision-making by
    22  surrogates on behalf of patients who do not have capacity to make  their
    23  own health care decisions.
    24    This  legislation  affirms existing laws and policies that limit indi-
    25  vidual conduct of patients with or  without  capacity,  including  those
    26  laws  and policies against homicide, suicide, assisted suicide and mercy
    27  killing.

    28    § 2. The public health law is amended by adding two new articles 29-CC
    29  and 29-CCC to read as follows:
    30                                ARTICLE 29-CC
    31                      FAMILY HEALTH CARE DECISIONS ACT
    32  Section 2994-a. Definitions.
    33          2994-b. Applicability; priority of certain other surrogate deci-
    34                    sion-making laws and regulations.
    35          2994-c. Determination of incapacity.
    36          2994-d. Health care decisions for adult patients by surrogates.
    37          2994-e. Decisions  about  life-sustaining  treatment  for  minor
    38                    patients.
    39          2994-f. Obligations of attending physician.
    40          2994-g. Health  care decisions for adult patients without surro-

    41                    gates.
    42          2994-i. Specific policies for orders not to resuscitate.
    43          2994-j. Revocation of consent.
    44          2994-k. Implementation and review of decisions.
    45          2994-l. Interinstitutional transfers.
    46          2994-m. Ethics review committees.
    47          2994-n. Conscience objections.
    48          2994-o. Immunity.
    49          2994-p. Liability for health care costs.
    50          2994-q. Effect on other rights.
    51          2994-r. Special proceeding authorized; court orders; health care
    52                    guardian for minor patient.
    53          2994-s. Remedy.

        A. 7729--D                          3
 
     1          2994-t. Regulations.

     2          2994-u. Rights to be publicized.
     3    §  2994-a. Definitions.   The following words or phrases, used in this
     4  article, shall have the following meanings, unless the context otherwise
     5  requires:
     6    1. "Adult" means any person who is eighteen years of age or  older  or
     7  has married.
     8    2. "Attending physician" means a physician, selected by or assigned to
     9  a  patient  pursuant  to hospital policy, who has primary responsibility
    10  for the treatment and care of the patient. Where more than one physician
    11  shares such responsibility, or  where  a  physician  is  acting  on  the
    12  attending physician's behalf, any such physician may act as an attending
    13  physician pursuant to this article.

    14    3.  "Cardiopulmonary  resuscitation"  means  measures, as specified in
    15  regulations promulgated by the commissioner, to restore cardiac function
    16  or to support ventilation in the  event  of  a  cardiac  or  respiratory
    17  arrest.  Cardiopulmonary  resuscitation  shall  not  include measures to
    18  improve ventilation and cardiac function in the absence of an arrest.
    19    4. "Close friend" means any person, eighteen years of  age  or  older,
    20  who  is  a  close  friend  of  the patient, or a relative of the patient
    21  (other than a spouse, adult child, parent, brother or sister),  who  has
    22  maintained  such regular contact with the patient as to be familiar with
    23  the patient's activities, health, and religious or  moral  beliefs,  and

    24  who  presents  a signed statement to that effect to the attending physi-
    25  cian.
    26    5. "Decision-making capacity" means  the  ability  to  understand  and
    27  appreciate  the nature and consequences of proposed health care, includ-
    28  ing the benefits and risks of and alternatives to proposed health  care,
    29  and to reach an informed decision.
    30    6.  "Developmental  disability"  means  a  developmental disability as
    31  defined in subdivision twenty-two of section 1.03 of the mental  hygiene
    32  law.
    33    7.  "Domestic  partner"  means  a  person who, with respect to another
    34  person:
    35    (a) is formally a party in a domestic partnership or similar relation-
    36  ship with the other person, entered into pursuant to  the  laws  of  the

    37  United  States or of any state, local or foreign jurisdiction, or regis-
    38  tered as the domestic partner of the  other  person  with  any  registry
    39  maintained  by  the employer of either party or any state, municipality,
    40  or foreign jurisdiction; or
    41    (b) is formally recognized as a beneficiary or  covered  person  under
    42  the other person's employment benefits or health insurance; or
    43    (c)  is  dependent  or mutually interdependent on the other person for
    44  support, as evidenced by the totality of the circumstances indicating  a
    45  mutual  intent  to  be  domestic  partners including but not limited to:
    46  common ownership or joint leasing of real or personal  property;  common
    47  householding,  shared  income  or  shared  expenses; children in common;

    48  signs of intent to marry or become domestic partners under paragraph (a)
    49  or (b) of this subdivision; or the length of the  personal  relationship
    50  of the persons.
    51    Each  party  to  a  domestic partnership shall be considered to be the
    52  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
    53  include a person who is related to the other person by blood in a manner
    54  that  would bar marriage to the other person in New York state.  "Domes-
    55  tic partner" also shall not include any person who is less than eighteen
    56  years of age or who is the adopted child of the other person or  who  is

        A. 7729--D                          4
 
     1  related  by  blood in a manner that would bar marriage in New York state

     2  to a person who is the lawful spouse of the other person.
     3    8. "Emancipated minor patient" means a minor patient who is the parent
     4  of a child, or who is sixteen years of age or older and living independ-
     5  ently from his or her parents or guardian.
     6    9.  "Ethics  review  committee"  means the interdisciplinary committee
     7  established in accordance with the requirements of  section  twenty-nine
     8  hundred ninety-four-m of this article.
     9    10. "General hospital" means a general hospital as defined in subdivi-
    10  sion ten of section twenty-eight hundred one of this chapter excluding a
    11  ward,  wing,  unit  or other part of a general hospital operated for the
    12  purpose of providing services for persons with mental  illness  pursuant

    13  to an operating certificate issued by the commissioner of mental health.
    14    11.  "Guardian  of a minor" or "guardian" means a health care guardian
    15  or a legal guardian of the person of a minor.
    16    12. "Health care" means any treatment, service, or procedure to  diag-
    17  nose  or  treat  an individual's physical or mental condition. Providing
    18  nutrition or hydration orally, without reliance on medical treatment, is
    19  not health care under this article and is not subject to this article.
    20    13. "Health care agent" means a health care  agent  designated  by  an
    21  adult pursuant to article twenty-nine-C of this chapter.
    22    14.  "Health care decision" means any decision to consent or refuse to
    23  consent to health care.

    24    15. "Health care guardian" means an individual appointed by  a  court,
    25  pursuant   to   subdivision   four   of   section   twenty-nine  hundred
    26  ninety-four-r of this article, as the guardian of a minor patient solely
    27  for the purpose of deciding about life-sustaining treatment pursuant  to
    28  this article.
    29    16.  "Health  care provider" means an individual or facility licensed,
    30  certified, or otherwise authorized or permitted  by  law  to  administer
    31  health care in the ordinary course of business or professional practice.
    32    17. "Health or social service practitioner" means a registered profes-
    33  sional   nurse,  nurse  practitioner,  physician,  physician  assistant,
    34  psychologist or licensed clinical social worker, licensed  or  certified

    35  pursuant  to  the  education law acting within his or her scope of prac-
    36  tice.
    37    18. "Hospital" means a general hospital or a residential  health  care
    38  facility.
    39    19.  "Life-sustaining treatment" means any medical treatment or proce-
    40  dure without which the patient will die within a relatively short  time,
    41  as  determined  by  an  attending  physician  to  a reasonable degree of
    42  medical certainty. For the  purpose  of  this  article,  cardiopulmonary
    43  resuscitation  is  presumed  to be life-sustaining treatment without the
    44  necessity of a determination by an attending physician.
    45    20. "Mental hygiene facility" means a facility operated or licensed by
    46  the office of mental health or the  office  of  mental  retardation  and

    47  developmental disabilities as defined in subdivision six of section 1.03
    48  of the mental hygiene law.
    49    21.  "Mental illness" means a mental illness as defined in subdivision
    50  twenty of section 1.03 of the mental hygiene law, and does  not  include
    51  dementia,  such  as  Alzheimer's  disease, or other disorders related to
    52  dementia.
    53    22. "Minor" means any person who is not an adult.
    54    23. "Order not to resuscitate" means an order not to attempt  cardiop-
    55  ulmonary resuscitation in the event a patient suffers cardiac or respir-
    56  atory arrest.

        A. 7729--D                          5
 
     1    24.  "Parent", for the purpose of a health care decision about a minor

     2  patient, means a parent who  has  custody  of,  or  who  has  maintained
     3  substantial and continuous contact with, the minor patient.
     4    25. "Patient" means a person admitted to a hospital.
     5    26.  "Person connected with the case" means the patient, any person on
     6  the surrogate list, a parent or guardian of a minor patient, the  hospi-
     7  tal  administrator,  an  attending physician, any other health or social
     8  services practitioner who is  or  has  been  directly  involved  in  the
     9  patient's  care,  and  any  duly  authorized state agency, including the
    10  facility director or regional director for a patient transferred from  a
    11  mental  hygiene  facility and the facility director for a patient trans-
    12  ferred from a correctional facility.

    13    27. "Reasonably available" means that a person to be contacted can  be
    14  contacted  with  diligent  efforts  by  an  attending physician, another
    15  person acting on behalf of an attending physician, or the hospital.
    16    28. "Residential health care facility" means a residential health care
    17  facility as defined in subdivision three of section twenty-eight hundred
    18  one of this chapter.
    19    29. "Surrogate" means the person selected to make a health care  deci-
    20  sion  on  behalf  of  a  patient pursuant to section twenty-nine hundred
    21  ninety-four-d of this article.
    22    30. "Surrogate list" means the list set forth in  subdivision  one  of
    23  section twenty-nine hundred ninety-four-d of this article.

    24    §  2994-b.    Applicability; priority of certain other surrogate deci-
    25  sion-making laws and regulations.  1. This article shall apply to health
    26  care decisions regarding health care provided in a hospital to a patient
    27  who lacks decision-making capacity, except as limited by this section.
    28    2. Prior to seeking or relying upon a health care decision by a surro-
    29  gate for a patient under this article,  the  attending  physician  shall
    30  make  reasonable  efforts  to determine whether the patient has a health
    31  care agent appointed pursuant to article twenty-nine-C of this  chapter.
    32  If  so,  health care decisions for the patient shall be governed by such
    33  article, and shall have priority over  decisions  by  any  other  person

    34  except the patient or as otherwise provided in the health care proxy.
    35    3. Prior to seeking or relying upon a health care decision by a surro-
    36  gate  for  a  patient under this article, if the attending physician has
    37  reason to believe that the patient has a history of  receiving  services
    38  for  mental  retardation  or  a  developmental disability; it reasonably
    39  appears to the attending physician that the patient has mental  retarda-
    40  tion  or  a  developmental  disability;  or  the attending physician has
    41  reason to believe that the patient has been transferred  from  a  mental
    42  hygiene  facility  operated  or licensed by the office of mental health,
    43  then such physician shall make reasonable efforts to  determine  whether

    44  paragraphs (a), (b) or (c) of this subdivision are applicable:
    45    (a)  If  the  patient  has a guardian appointed by a court pursuant to
    46  article seventeen-A of the surrogate's court procedure act, health  care
    47  decisions for the patient shall be governed by section seventeen hundred
    48  fifty-b of the surrogate's court proceedure act and not by this article.
    49    (b)  If a patient does not have a guardian appointed by a court pursu-
    50  ant to article seventeen-A of the surrogate's court  procedure  act  but
    51  falls within the class of persons described in paragraph (a) of subdivi-
    52  sion  one of section seventeen hundred fifty-b of such act, decisions to
    53  withdraw or withhold life-sustaining treatment for the patient shall  be

    54  governed  by  section seventeen hundred fifty-b of the surrogate's court
    55  procedure act and not by this article.

        A. 7729--D                          6
 
     1    (c) If a health care decision for a patient cannot be made under para-
     2  graphs (a) or (b) of this subdivision, but consent for the decision  may
     3  be  provided  pursuant  to  the mental hygiene law or regulations of the
     4  office of mental health or the office of mental retardation and develop-
     5  mental disabilities, then the decision shall be governed by such statute
     6  or regulations and not by this article.
     7    4.  If,  after reasonable efforts, it is determined that a health care
     8  decision for the patient cannot be made pursuant to subdivision  two  or

     9  three  of  this  section,  then  the  health care decision shall be made
    10  pursuant to this article.
    11    § 2994-c. Determination of incapacity. 1. Presumption of capacity. For
    12  purposes of this article, every adult shall be presumed  to  have  deci-
    13  sion-making  capacity  unless  determined  otherwise  pursuant  to  this
    14  section or pursuant to court order, or unless a guardian  is  authorized
    15  to decide about health care for the adult pursuant to article eighty-one
    16  of the mental hygiene law.
    17    2.  Initial  determination by attending physician. An attending physi-
    18  cian shall make an initial determination that  an  adult  patient  lacks
    19  decision-making  capacity  to  a reasonable degree of medical certainty.

    20  Such determination shall include an assessment of the cause  and  extent
    21  of  the  patient's  incapacity  and the likelihood that the patient will
    22  regain decision-making capacity.
    23    3. Concurring determinations. (a)  An  initial  determination  that  a
    24  patient  lacks decision-making capacity shall be subject to a concurring
    25  determination, independently made, where required by this subdivision. A
    26  concurring determination shall include an assessment of  the  cause  and
    27  extent  of  the patient's incapacity and the likelihood that the patient
    28  will regain decision-making capacity,  and  shall  be  included  in  the
    29  patient's medical record. Hospitals shall adopt written policies identi-

    30  fying  the training and credentials of health or social services practi-
    31  tioners qualified to provide concurring determinations of incapacity.
    32    (b) (i) In a residential health care  facility,  a  health  or  social
    33  services  practitioner employed by or otherwise formally affiliated with
    34  the facility must independently determine whether an adult patient lacks
    35  decision-making capacity.
    36    (ii) In a general hospital a health or  social  services  practitioner
    37  employed  by  or  otherwise  formally  affiliated with the facility must
    38  independently determine whether an adult patient  lacks  decision-making
    39  capacity  if  the  surrogate's decision concerns the withdrawal or with-
    40  holding of life-sustaining treatment.

    41    (c) (i) If the attending physician makes an initial determination that
    42  a patient lacks decision-making  capacity  because  of  mental  illness,
    43  either such physician must have the following qualifications, or another
    44  physician with the following qualifications must independently determine
    45  whether the patient lacks decision-making capacity: a physician licensed
    46  to  practice  medicine in New York state, who is a diplomate or eligible
    47  to be certified by the American Board of Psychiatry and Neurology or who
    48  is certified by the American Osteopathic Board of Neurology and Psychia-
    49  try or is eligible to be certified by  that  board.  A  record  of  such
    50  consultation shall be included in the patient's medical record.

    51    (ii)  If the attending physician makes an initial determination that a
    52  patient lacks decision-making capacity because of mental retardation  or
    53  a  developmental disability, either such physician must have the follow-
    54  ing qualifications, or another professional with  the  following  quali-
    55  fications  must  independently determine whether the patient lacks deci-
    56  sion-making capacity: a physician or clinical psychologist who either is

        A. 7729--D                          7
 
     1  employed by a school named in section 13.17 of the mental  hygiene  law,
     2  or  who  has been employed for a minimum of two years to render care and
     3  service in a facility operated or  licensed  by  the  office  of  mental

     4  retardation  and developmental disabilities, or who has been approved by
     5  the commissioner of mental retardation and developmental disabilities in
     6  accordance with regulations promulgated by such commissioner. Such regu-
     7  lations shall require that a physician or clinical psychologist  possess
     8  specialized training or three years experience in treating developmental
     9  disabilities.  A  record  of  such consultation shall be included in the
    10  patient's medical record.
    11    (d) If an attending physician has determined that  the  patient  lacks
    12  decision-making  capacity  and  if the health or social services practi-
    13  tioner consulted for  a  concurring  determination  disagrees  with  the
    14  attending physician's determination, the matter shall be referred to the

    15  ethics review committee if it cannot otherwise be resolved.
    16    4. Informing the patient and surrogate. Notice of a determination that
    17  a  surrogate  will  make health care decisions because the adult patient
    18  has been determined to lack decision-making capacity shall  promptly  be
    19  given:
    20    (a)  to  the  patient,  where there is any indication of the patient's
    21  ability to comprehend the information;
    22    (b) to at least one person on the surrogate list highest in  order  of
    23  priority  listed when persons in prior classes are not reasonably avail-
    24  able pursuant to subdivision one of section twenty-nine hundred  ninety-
    25  four-d of this article;
    26    (c)  if the patient was transferred from a mental hygiene facility, to

    27  the director of the mental hygiene facility and to  the  mental  hygiene
    28  legal service under article forty-seven of the mental hygiene law.
    29    5.  Limited purpose of determination. A determination made pursuant to
    30  this section that an adult patient lacks decision-making capacity  shall
    31  not  be  construed  as a finding that the patient lacks capacity for any
    32  other purpose.
    33    6. Priority of patient's  decision.  Notwithstanding  a  determination
    34  pursuant  to  this  section  that an adult patient lacks decision-making
    35  capacity, if the patient objects to the determination of incapacity,  or
    36  to  the  choice  of  a  surrogate or to a health care decision made by a
    37  surrogate or made pursuant to section twenty-nine hundred  ninety-four-g

    38  of  this  article,  the  patient's  objection  or decision shall prevail
    39  unless:  (a) a court of competent jurisdiction has determined  that  the
    40  patient  lacks  decision-making  capacity  or the patient is or has been
    41  adjudged incompetent for all purposes and, in the case  of  a  patient's
    42  objection  to  treatment,  makes  any  other  finding required by law to
    43  authorize the treatment, or (b) another legal basis exists for  overrid-
    44  ing the patient's decision.
    45    7.  Confirmation  of  continued  lack  of decision-making capacity. An
    46  attending physician shall confirm the adult patient's continued lack  of
    47  decision-making  capacity  before  complying  with health care decisions
    48  made pursuant to this article, other than those  decisions  made  at  or

    49  about  the time of the initial determination. A concurring determination
    50  of the patient's continued lack of  decision-making  capacity  shall  be
    51  required if the subsequent health care decision concerns the withholding
    52  or  withdrawal of life-sustaining treatment. Health care providers shall
    53  not be required to inform the patient or surrogate of the confirmation.
    54    § 2994-d. Health care decisions for adult patients by  surrogates.  1.
    55  Identifying  the  surrogate. One person from the following list from the
    56  class highest in priority when persons in prior classes are not  reason-

        A. 7729--D                          8
 
     1  ably  available,  willing,  and competent to act, shall be the surrogate

     2  for an adult patient who lacks decision-making capacity.  However,  such
     3  person  may  designate  any  other  person  on the list to be surrogate,
     4  provided no one in a class higher in priority than the person designated
     5  objects:
     6    (a)  A  guardian  authorized  to  decide about health care pursuant to
     7  article eighty-one of the mental hygiene law;
     8    (b) The spouse, if not legally separated  from  the  patient,  or  the
     9  domestic partner;
    10    (c) A son or daughter eighteen years of age or older;
    11    (d) A parent;
    12    (e) A brother or sister eighteen years of age or older;
    13    (f) A close friend.
    14    2. Restrictions on who may be a surrogate. An operator, administrator,

    15  or  employee  of  a hospital or a mental hygiene facility from which the
    16  patient was transferred, or a physician who has privileges at the hospi-
    17  tal or a health care provider under contract with the hospital  may  not
    18  serve  as the surrogate for any adult who is a patient of such hospital,
    19  unless such individual is related to the  patient  by  blood,  marriage,
    20  domestic  partnership,  or adoption, or is a close friend of the patient
    21  whose friendship with the patient preceded the  patient's  admission  to
    22  the  facility.  If  a physician serves as surrogate, the physician shall
    23  not act as the patient's attending physician after his or her  authority
    24  as surrogate begins.
    25    3. Authority and duties of surrogate. (a) Scope of surrogate's author-

    26  ity.
    27    (i)  Subject  to  the  standards  and limitations of this article, the
    28  surrogate shall have the authority to make any and all health care deci-
    29  sions on the adult patient's behalf that the patient could make.
    30    (ii) Nothing in this article shall obligate health care  providers  to
    31  seek  the  consent of a surrogate if an adult patient has already made a
    32  decision about the proposed health care, expressed orally or in  writing
    33  or,  with  respect to a decision to withdraw or withhold life-sustaining
    34  treatment expressed either orally during hospitalization in the presence
    35  of two witnesses eighteen years of age or older, at least one of whom is
    36  a health or social services practitioner affiliated with  the  hospital,

    37  or  in writing.  If an attending physician relies on the patient's prior
    38  decision, the physician shall record the prior decision in the patient's
    39  medical record. If a surrogate  has  already  been  designated  for  the
    40  patient, the attending physician shall make reasonable efforts to notify
    41  the  surrogate  prior to implementing the decision; provided that in the
    42  case of a decision to withdraw or  withhold  life-sustaining  treatment,
    43  the attending physician shall make diligent efforts to notify the surro-
    44  gate  and, if unable to notify the surrogate, shall document the efforts
    45  that were made to do so.
    46    (b) Commencement of surrogate's authority. The  surrogate's  authority
    47  shall  commence  upon  a determination, made pursuant to section twenty-

    48  nine hundred ninety-four-c of this article, that the adult patient lacks
    49  decision-making capacity and upon identification of a surrogate pursuant
    50  to subdivision one of this section. In the event an attending  physician
    51  determines  that  the patient has regained decision-making capacity, the
    52  authority of the surrogate shall cease.
    53    (c) Right and duty to be informed.  Notwithstanding  any  law  to  the
    54  contrary, the surrogate shall have the right to receive medical informa-
    55  tion  and medical records necessary to make informed decisions about the
    56  patient's health care. Health  care  providers  shall  provide  and  the

        A. 7729--D                          9
 

     1  surrogate shall seek information necessary to make an informed decision,
     2  including  information  about  the  patient's  diagnosis, prognosis, the
     3  nature and consequences of proposed health care, and  the  benefits  and
     4  risks of and alternative to proposed health care.
     5    4. Decision-making standards. (a) The surrogate shall make health care
     6  decisions:
     7    (i)  in  accordance with the patient's wishes, including the patient's
     8  religious and moral beliefs; or
     9    (ii) if the patient's wishes are not reasonably known and cannot  with
    10  reasonable  diligence  be  ascertained, in accordance with the patient's
    11  best interests. An assessment of  the  patient's  best  interests  shall

    12  include:  consideration  of  the dignity and uniqueness of every person;
    13  the possibility and extent of preserving the patient's life; the preser-
    14  vation, improvement or restoration of the patient's health or  function-
    15  ing;  the  relief  of the patient's suffering; and any medical condition
    16  and such other concerns  and  values  as  a  reasonable  person  in  the
    17  patient's circumstances would wish to consider.
    18    (b)  In  all cases, the surrogate's assessment of the patient's wishes
    19  and best interests shall  be  patient-centered;  health  care  decisions
    20  shall  be made on an individualized basis for each patient, and shall be
    21  consistent with the values of the patient, including the patient's reli-

    22  gious and moral beliefs, to the extent reasonably possible.
    23    5. Decisions to withhold or  withdraw  life-sustaining  treatment.  In
    24  addition to the standards set forth in subdivision four of this section,
    25  decisions  by  surrogates to withhold or withdraw life-sustaining treat-
    26  ment shall be authorized only if the following conditions are satisfied,
    27  as applicable:
    28    (a)(i) Treatment would be an extraordinary burden to the  patient  and
    29  an  attending  physician determines, with the independent concurrence of
    30  another physician, that, to a reasonable degree of medical certainty and
    31  in accord with accepted  medical  standards,  (A)  the  patient  has  an
    32  illness  or  injury  which  can  be  expected  to cause death within six

    33  months, whether or not treatment is provided;  or  (B)  the  patient  is
    34  permanently unconscious; or
    35    (ii)  The provision of treatment would involve such pain, suffering or
    36  other burden that it would reasonably be  deemed  inhumane  or  extraor-
    37  dinarily burdensome under the circumstances and the patient has an irre-
    38  versible or incurable condition, as determined by an attending physician
    39  with  the  independent  concurrence of another physician to a reasonable
    40  degree of medical certainty and in accord with accepted  medical  stand-
    41  ards.
    42    (b)  In a residential health care facility, a surrogate shall have the
    43  authority to refuse life-sustaining treatment under subparagraph (ii) of

    44  paragraph (a) of this subdivision only if the ethics  review  committee,
    45  including at least one physician who is not directly responsible for the
    46  patient's  care, or a court of competent jurisdiction, reviews the deci-
    47  sion and determines that it meets the standards set forth in this  arti-
    48  cle. This requirement shall not apply to a decision to withhold cardiop-
    49  ulmonary resuscitation.
    50    (c)  In  a  general  hospital, if the attending physician objects to a
    51  surrogate's decision, under subparagraph (ii) of paragraph (a)  of  this
    52  subdivision, to withdraw or withhold nutrition and hydration provided by
    53  means  of medical treatment, the decision shall not be implemented until
    54  the ethics review committee, including at least one physician who is not

    55  directly responsible for the patient's care, or  a  court  of  competent
    56  jurisdiction,  reviews  the  decision  and  determines that it meets the

        A. 7729--D                         10
 
     1  standards set forth in this subdivision and  subdivision  four  of  this
     2  section.
     3    (d)  Providing  nutrition  and  hydration  orally, without reliance on
     4  medical treatment, is not health care under  this  article  and  is  not
     5  subject to this article.
     6    (e) Expression of decisions. The surrogate shall express a decision to
     7  withdraw  or  withhold  life-sustaining  treatment  either  orally to an
     8  attending physician or in writing.
     9    §  2994-e.  Decisions  about  life-sustaining  treatment   for   minor

    10  patients.  1. Authority of parent or guardian. The parent or guardian of
    11  a  minor  patient shall have the authority to make decisions about life-
    12  sustaining treatment, including decisions to withhold or  withdraw  such
    13  treatment,  subject  to  the  provisions of this section and subdivision
    14  five of section twenty-nine hundred ninety-four-d of this article.
    15    2. Decision-making standards and procedures for minor patient. (a) The
    16  parent or guardian of a minor patient shall make decisions in accordance
    17  with the minor's best interests, consistent with the standards set forth
    18  in subdivision four of section twenty-nine hundred ninety-four-d of this
    19  article, taking into account the minor's wishes as appropriate under the
    20  circumstances.

    21    (b) An attending physician, in consultation with a minor's  parent  or
    22  guardian,  shall  determine  whether a minor patient has decision-making
    23  capacity for a decision to withhold or withdraw  life-sustaining  treat-
    24  ment.  If the minor has such capacity, a parent's or guardian's decision
    25  to withhold or withdraw life-sustaining treatment for the minor may  not
    26  be implemented without the minor's consent.
    27    (c)  Where a parent or guardian of a minor patient has made a decision
    28  to withhold or  withdraw  life-sustaining  treatment  and  an  attending
    29  physician  has  reason to believe that the minor patient has a parent or
    30  guardian who has not been informed of the decision, including a non-cus-

    31  todial parent or guardian, an attending physician or someone  acting  on
    32  his  or  her  behalf,  shall make reasonable efforts to determine if the
    33  uninformed parent or guardian has maintained substantial and  continuous
    34  contact with the minor and, if so, shall make diligent efforts to notify
    35  that parent or guardian prior to implementing the decision.
    36    3.  Decision-making  standards  and  procedures  for emancipated minor
    37  patient. (a) If an attending physician determines that a patient  is  an
    38  emancipated  minor  patient  with  decision-making capacity, the patient
    39  shall have the authority to decide about life-sustaining treatment. Such
    40  authority shall include a decision to withhold or withdraw life-sustain-

    41  ing treatment if an attending physician and the ethics review  committee
    42  determine  that  the  decision  accords with the standards for surrogate
    43  decisions for adults, and the ethics review committee approves the deci-
    44  sion.
    45    (b) If the hospital can with reasonable efforts ascertain the identity
    46  of the parents or guardian of an emancipated minor patient, the hospital
    47  shall notify such persons prior to withholding or withdrawing  life-sus-
    48  taining treatment pursuant to this subdivision.
    49    §  2994-f.  Obligations of attending physician. 1. An attending physi-
    50  cian informed of a decision  to  withdraw  or  withhold  life-sustaining
    51  treatment  made  pursuant  to the standards of this article shall record

    52  the decision in the patient's medical record, review the  medical  basis
    53  for  the  decision, and shall either: (a) implement the decision, or (b)
    54  promptly make his or her objection to the decision and the  reasons  for
    55  the  objection  known to the decision-maker, and either make all reason-
    56  able efforts to arrange for the  transfer  of  the  patient  to  another

        A. 7729--D                         11
 
     1  physician,  if  necessary,  or  promptly  refer the matter to the ethics
     2  review committee.
     3    2.  If  an  attending  physician  has  actual  notice of the following
     4  objections or disagreements, he or she shall promptly refer  the  matter
     5  to  the  ethics review committee if the objection or disagreement cannot

     6  otherwise be resolved:
     7    (a) A health or social services practitioner consulted for  a  concur-
     8  ring  determination that an adult patient lacks decision-making capacity
     9  disagrees with the attending physician's determination; or
    10    (b) Any person on the surrogate list objects to the designation of the
    11  surrogate pursuant to subdivision one  of  section  twenty-nine  hundred
    12  ninety-four-d of this article; or
    13    (c)  Any  person  on the surrogate list objects to a surrogate's deci-
    14  sion; or
    15    (d) A parent or guardian of a minor patient objects to the decision by
    16  another parent or guardian of the minor; or
    17    (e) A minor patient refuses life-sustaining treatment, and the minor's

    18  parent or guardian wishes the treatment to be  provided,  or  the  minor
    19  patient  objects  to  an attending physician's determination about deci-
    20  sion-making capacity or recommendation about life-sustaining treatment.
    21    3. Notwithstanding the provisions of this section or  subdivision  one
    22  of  section  twenty-nine  hundred  ninety-four-q  of  this article, if a
    23  surrogate directs the provision of life-sustaining treatment, the denial
    24  of which in reasonable medical judgment would be likely to result in the
    25  death of the patient, a hospital or individual health care provider that
    26  does not wish to provide such treatment shall  nonetheless  comply  with
    27  the  surrogate's  decision  pending  either transfer of the patient to a

    28  willing hospital or individual health care provider, or judicial  review
    29  in  accordance  with  section  twenty-nine hundred ninety-four-r of this
    30  article.
    31    § 2994-g. Health care decisions for adult patients without surrogates.
    32  1. Identifying adult patients without surrogates.  Within  a  reasonable
    33  time  after  admission  as  an  inpatient  to the hospital of each adult
    34  patient, the hospital shall make reasonable efforts to determine if  the
    35  patient  has  appointed  a health care agent or has a guardian, or if at
    36  least one individual is available to serve as the patient's surrogate in
    37  the event the patient lacks  or  loses  decision-making  capacity.  With
    38  respect  to  a patient who lacks capacity, if no such health care agent,

    39  guardian or potential surrogate is identified, the hospital shall  iden-
    40  tify,  to the extent reasonably possible, the patient's wishes and pref-
    41  erences, including the patient's  religious  and  moral  beliefs,  about
    42  pending  health  care  decisions,  and  shall record its findings in the
    43  patient's medical record.
    44    2. Decision-making standards and procedures.  (a) The procedures spec-
    45  ified in this and the following subdivisions of this  section  apply  to
    46  health care decisions for adult patients who would qualify for surrogate
    47  decision-making  under this article but for whom no surrogate is reason-
    48  ably available, willing or competent to act.
    49    (b) Any health care decision made pursuant to this  section  shall  be

    50  made  in  accordance with the standards set forth in subdivision four of
    51  section twenty-nine hundred ninety-four-d of this article and shall  not
    52  be  based on the financial interests of the hospital or any other health
    53  care provider. The specific procedures to be followed depend on  whether
    54  the  decision  involves  routine medical treatment, major medical treat-
    55  ment, or the withholding or withdrawal of life-sustaining treatment, and
    56  the location where the treatment is provided.

        A. 7729--D                         12
 
     1    3. Routine medical treatment. (a) For purposes  of  this  subdivision,
     2  "routine  medical  treatment" means any treatment, service, or procedure

     3  to diagnose or treat an individual's physical or mental condition,  such
     4  as the administration of medication, the extraction of bodily fluids for
     5  analysis,  or  dental  care performed with a local anesthetic, for which
     6  health care providers ordinarily do not seek specific consent  from  the
     7  patient or authorized representative. It shall not include the long-term
     8  provision  of treatment such as ventilator support or a nasogastric tube
     9  but shall include such treatment when provided as part of post-operative
    10  care or in response to an  acute  illness  and  recovery  is  reasonably
    11  expected within one month or less.
    12    (b) An attending physician shall be authorized to decide about routine

    13  medical  treatment  for an adult patient who has been determined to lack
    14  decision-making capacity pursuant to section twenty-nine  hundred  nine-
    15  ty-four-c  of  this  article.  Nothing in this subdivision shall require
    16  health care providers to obtain specific  consent  for  treatment  where
    17  specific consent is not otherwise required by law.
    18    4.  Major  medical  treatment.  (a)  For purposes of this subdivision,
    19  "major medical treatment" means any treatment, service or  procedure  to
    20  diagnose  or  treat  an  individual's  physical or mental condition: (i)
    21  where general anesthetic is used; or (ii) which involves any significant
    22  risk; or (iii) which involves any significant invasion of bodily  integ-

    23  rity  requiring  an  incision,  producing  substantial pain, discomfort,
    24  debilitation or having a significant  recovery  period;  or  (iv)  which
    25  involves  the  use  of  physical restraints, as specified in regulations
    26  promulgated by the commissioner, except in an emergency;  or  (v)  which
    27  involves  the  use  of psychoactive medications, except when provided as
    28  part of post-operative care or in  response  to  an  acute  illness  and
    29  treatment  is  reasonably  expected  to be administered over a period of
    30  forty-eight hours or less, or when provided in an emergency.
    31    (b) A decision to provide major medical treatment, made in  accordance
    32  with  the  following  requirements,  shall  be  authorized  for an adult

    33  patient who has been determined to lack decision-making capacity  pursu-
    34  ant to section twenty-nine hundred ninety-four-c of this article.
    35    (i) An attending physician shall make a recommendation in consultation
    36  with hospital staff directly responsible for the patient's care.
    37    (ii) In a general hospital, at least one other physician designated by
    38  the  hospital  must  independently determine that he or she concurs that
    39  the recommendation is appropriate.
    40    (iii) In a residential health care facility the  medical  director  of
    41  the  facility,  or  a physician designated by the medical director, must
    42  independently determine that he or she concurs that  the  recommendation
    43  is  appropriate;  provided that if the medical director is the patient's

    44  attending physician, a different physician designated by the residential
    45  health care facility  must  make  this  independent  determination.  Any
    46  health or social services practitioner employed by or otherwise formally
    47  affiliated  with the facility may provide a second opinion for decisions
    48  about physical restraints made pursuant to this subdivision.
    49    5. Decisions to withhold or withdraw life-sustaining treatment. (a)  A
    50  court of competent jurisdiction may make a decision to withhold or with-
    51  draw  life-sustaining treatment for an adult patient who has been deter-
    52  mined to lack decision-making capacity pursuant to  section  twenty-nine
    53  hundred  ninety-four-c of this article if the court finds that the deci-

    54  sion accords with standards for decisions for adults set forth in subdi-
    55  visions four and five of section twenty-nine  hundred  ninety-four-d  of
    56  this article.

        A. 7729--D                         13
 
     1    (b)  If  the  attending  physician,  with independent concurrence of a
     2  second physician designated by the hospital, determines to a  reasonable
     3  degree of medical certainty that:
     4    (i)  life-sustaining  treatment  offers the patient no medical benefit
     5  because the patient will  die  imminently,  even  if  the  treatment  is
     6  provided; and
     7    (ii) the provision of life-sustaining treatment would violate accepted
     8  medical standards, then such treatment may be withdrawn or withheld from

     9  an adult patient who has been determined to lack decision-making capaci-
    10  ty  pursuant  to section twenty-nine hundred ninety-four-c of this arti-
    11  cle, without judicial approval. This paragraph shall not  apply  to  any
    12  treatment necessary to alleviate pain or discomfort.
    13    6.  Physician  objection.  If  a  physician consulted for a concurring
    14  opinion objects to an attending physician's recommendation  or  determi-
    15  nation  made pursuant to this section, or a member of the hospital staff
    16  directly responsible for the patient's  care  objects  to  an  attending
    17  physician's  recommendation  about  major medical treatment or treatment
    18  without medical benefit, the matter shall  be  referred  to  the  ethics

    19  review committee if it cannot be otherwise resolved.
    20    §  2994-i.  Specific  policies for orders not to resuscitate. An order
    21  not to resuscitate shall be written in  the  patient's  medical  record.
    22  Consent  to  an order not to resuscitate shall not constitute consent to
    23  withhold or withdraw treatment other than cardiopulmonary resuscitation.
    24    § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
    25  guardian of a minor patient may at any time revoke his or her consent to
    26  withhold or withdraw life-sustaining treatment by informing an attending
    27  physician or a member of the medical or nursing staff of the revocation.
    28    2. An attending physician informed of a  revocation  of  consent  made

    29  pursuant to this section shall immediately:
    30    (a) record the revocation in the patient's medical record;
    31    (b)  cancel  any orders implementing the decision to withhold or with-
    32  draw treatment; and
    33    (c) notify the hospital staff directly responsible for  the  patient's
    34  care of the revocation and any cancellations.
    35    3. Any member of the medical or nursing staff informed of a revocation
    36  made  pursuant  to  this  section  shall immediately notify an attending
    37  physician of the revocation.
    38    § 2994-k. Implementation and review of decisions. 1.  Hospitals  shall
    39  adopt  written  policies  requiring implementation and regular review of
    40  decisions to withhold or withdrew life-sustaining treatment  in  accord-

    41  ance with accepted medical standards. Hospitals shall also develop poli-
    42  cies  in  accord with accepted medical standards regarding documentation
    43  of clinical determinations and decisions by surrogates and  health  care
    44  providers pursuant to this article.
    45    2. If a decision to withhold or withdraw life-sustaining treatment has
    46  been  made  pursuant  to this article, and an attending physician deter-
    47  mines at any time that the decision is no longer appropriate or  author-
    48  ized  because  the  patient  has  regained  decision-making  capacity or
    49  because the patient's condition has otherwise  improved,  the  physician
    50  shall immediately:
    51    (a) include such determination in the patient's medical record;

    52    (b)  cancel  any  orders or plans of care implementing the decision to
    53  withhold or withdraw life-sustaining treatment;
    54    (c) notify the person who made the decision to  withhold  or  withdraw
    55  treatment,  or,  if that person is not reasonably available, to at least
    56  one person on the surrogate list highest in  order  of  priority  listed

        A. 7729--D                         14
 
     1  when  persons  in prior classes are not reasonably available pursuant to
     2  subdivision one of section twenty-nine  hundred  ninety-four-d  of  this
     3  article; and
     4    (d)  notify  the hospital staff directly responsible for the patient's
     5  care of any cancelled orders or plans of care.

     6    § 2994-l. Interinstitutional transfers. If a patient with an order  to
     7  withhold  or  withdraw  life-sustaining  treatment is transferred from a
     8  mental hygiene facility to a hospital or from a hospital to a  different
     9  hospital, any such order or plan shall remain effective until an attend-
    10  ing  physician  first  examines  the  transferred  patient, whereupon an
    11  attending physician must either:
    12    1. Issue appropriate orders to continue the prior order or plan.  Such
    13  orders  may  be  issued without obtaining another consent to withhold or
    14  withdraw life-sustaining treatment pursuant to this article; or
    15    2. Cancel such order, if the attending physician determines  that  the

    16  order is no longer appropriate or authorized. Before canceling the order
    17  the  attending  physician  shall  make  reasonable efforts to notify the
    18  person who made the decision to withhold or withdraw treatment  and  the
    19  hospital  staff  directly responsible for the patient's care of any such
    20  cancellation. If such notice cannot reasonably be made prior to  cancel-
    21  ing the order or plan, the attending physician shall make such notice as
    22  soon as reasonably practicable after cancellation.
    23    §  2994-m.  Ethics  review  committees.  1. Establishment of an ethics
    24  review committee, written policy. Each hospital shall establish at least
    25  one ethics review committee or participate in an ethics review committee

    26  that serves more than one hospital, and shall  adopt  a  written  policy
    27  governing committee functions, composition, and procedure, in accordance
    28  with  the  requirements  of  this  article.  A hospital may designate an
    29  existing committee, or subcommittee thereof, to carry out the  functions
    30  of the ethics review committee provided the requirements of this section
    31  are satisfied.
    32    2.  Functions  of  the  ethics review committee. (a) The ethics review
    33  committee shall consider and respond to any health care matter presented
    34  to it by a person connected with the case.
    35    (b) The ethics review committee response to a health care  matter  may
    36  include:
    37    (i) providing advice on the ethical aspects of proposed health care;

    38    (ii) making a recommendation about proposed health care; or
    39    (iii) providing assistance in resolving disputes about proposed health
    40  care.
    41    (c) Recommendations and advice by the ethics review committee shall be
    42  advisory  and  nonbinding,  except  as  specified in subdivision five of
    43  section twenty-nine hundred ninety-four-d of this article  and  subdivi-
    44  sion three of section twenty-nine hundred ninety-four-e of this article.
    45    3.  Committee  membership.  The membership of ethics review committees
    46  must be interdisciplinary and must include at  least  five  members  who
    47  have demonstrated an interest in or commitment to patient's rights or to
    48  the  medical,  public  health,  or social needs of those who are ill. At

    49  least three ethics review committee members must  be  health  or  social
    50  services  practitioners, at least one of whom must be a registered nurse
    51  and one of whom must be a physician. At  least  one  member  must  be  a
    52  person  without  any  governance, employment or contractual relationship
    53  with the hospital. In a residential health care  facility  the  facility
    54  must offer the residents' council of the facility (or of another facili-
    55  ty  that participates in the committee) the opportunity to appoint up to
    56  two persons to the ethics review committee, none of whom may be a  resi-

        A. 7729--D                         15
 
     1  dent  of  or a family member of a resident of such facility, and both of

     2  whom shall be persons who have expertise in or a demonstrated commitment
     3  to patient rights or to the care and treatment of the elderly or nursing
     4  home  residents through professional or community activities, other than
     5  activities performed as a health care provider.
     6    4. Procedures for ethics review committee. (a)  These  procedures  are
     7  required  only  when:    (i)  the ethics review committee is convened to
     8  review a decision by a surrogate to withhold or withdraw life-sustaining
     9  treatment for: (A) a patient  in  a  residential  health  care  facility
    10  pursuant  to  paragraph  (b)  of subdivision five of section twenty-nine
    11  hundred ninety-four-d of this article; (B) a patient in a general hospi-

    12  tal pursuant to paragraph (c) of subdivision five of section twenty-nine
    13  hundred ninety-four-d of this  article;  or  (C)  an  emancipated  minor
    14  patient  pursuant  to  subdivision  three of section twenty-nine hundred
    15  ninety-four-e of this article; or (ii) when a person connected with  the
    16  case  requests  the  ethics  review  committee  to provide assistance in
    17  resolving a dispute about proposed care. Nothing in this  section  shall
    18  bar  health  care  providers  from  first  striving  to resolve disputes
    19  through less  formal  means,  including  the  informal  solicitation  of
    20  ethical advice from any source.
    21    (b)(i)  A  person  connected  with  the case may not participate as an
    22  ethics review committee member in the consideration of that case.

    23    (ii) The ethics review committee shall respond promptly,  as  required
    24  by  the  circumstances,  to  any  request  for assistance in resolving a
    25  dispute or consideration of a decision to withhold or withdraw life-sus-
    26  taining treatment pursuant to paragraphs (b) and (c) of subdivision five
    27  of section twenty-nine hundred ninety-four-d of this article made  by  a
    28  person  connected  with  the  case.  The  committee shall permit persons
    29  connected with the case to present their views to the committee, and  to
    30  have the option of being accompanied by an advisor when participating in
    31  a committee meeting.
    32    (iii)  The ethics review committee shall promptly provide the patient,
    33  where there is any indication of the patient's ability to comprehend the

    34  information, the surrogate, other persons on the surrogate list directly
    35  involved in the decision or dispute regarding the  patient's  care,  any
    36  parent  or guardian of a minor patient directly involved in the decision
    37  or dispute regarding the minor patient's care, an  attending  physician,
    38  the  hospital,  and  other persons the committee deems appropriate, with
    39  the following:
    40    (A) notice of any pending case consideration concerning  the  patient,
    41  including,  for  patients,  persons  on  the surrogate list, parents and
    42  guardians, information about the ethics review  committee's  procedures,
    43  composition and function; and
    44    (B)  the  committee's response to the case, including a written state-

    45  ment of the reasons for approving or  disapproving  the  withholding  or
    46  withdrawal  of life-sustaining treatment for decisions considered pursu-
    47  ant to subparagraph (ii) of paragraph (a) of subdivision five of section
    48  twenty-nine hundred  ninety-four-d  of  this  article.  The  committee's
    49  response to the case shall be included in the patient's medical record.
    50    (iv)  Following  ethics  review  committee  consideration  of  a  case
    51  concerning the withdrawal or withholding of  life-sustaining  treatment,
    52  treatment  shall  not be withdrawn or withheld until the persons identi-
    53  fied in subparagraph (iii) of this paragraph have been informed  of  the
    54  committee's response to the case.

    55    5. Access to medical records and information; patient confidentiality.
    56  Ethics  review  committee  members  and consultants shall have access to

        A. 7729--D                         16
 
     1  medical information and medical records necessary to perform their func-
     2  tion under this article. Any such information or  records  disclosed  to
     3  committee  members,  consultants,  or  others shall be kept confidential
     4  except  to the extent necessary to accomplish the purposes of this arti-
     5  cle or as otherwise provided by law.
     6    6. Ethics review committee confidentiality. Notwithstanding any  other
     7  provisions  of  law,  the  proceedings  and  records of an ethics review

     8  committee shall be kept  confidential  and  shall  not  be  released  by
     9  committee members, committee consultants, or other persons privy to such
    10  proceedings and records; the proceedings and records of an ethics review
    11  committee  shall  not  be  subject  to  disclosure  or inspection in any
    12  manner, including under article six of the public officers law or  arti-
    13  cle thirty-one of the civil practice law and rules; and, no person shall
    14  testify  as to the proceedings or records of an ethics review committee,
    15  nor shall such  proceedings  and  records  otherwise  be  admissible  as
    16  evidence  in any action or proceeding of any kind in any court or before
    17  any other tribunal, board, agency or person, except that:

    18    (a) Ethics review committee proceedings and records, in cases where  a
    19  committee  approves  or  disapproves of the withholding or withdrawal of
    20  life-sustaining treatment pursuant to subdivision five of section  twen-
    21  ty-nine  hundred  ninety-four-d of this article, or subdivision three of
    22  section twenty-nine  hundred  ninety-four-e  of  this  article,  may  be
    23  obtained by or released to the department;
    24    (b) Nothing in this subdivision shall prohibit the patient, the surro-
    25  gate,  other persons on the surrogate list, or a parent or guardian of a
    26  minor patient from voluntarily disclosing, releasing or testifying about
    27  committee proceedings or records; and
    28    (c) Nothing in this subdivision shall prohibit the state commission on

    29  quality of care and advocacy for persons with disabilities or any agency
    30  or person within or under contract with the  commission  which  provides
    31  protection  and advocacy services from requiring any information, report
    32  or record from a hospital in accordance with the provisions  of  section
    33  45.09 of the mental hygiene law.
    34    § 2994-n. Conscience objections. 1. Private hospitals. Nothing in this
    35  article  shall  be  construed  to  require a private hospital to honor a
    36  health care decision made pursuant to this article if:
    37    (a) The decision is contrary to  a  formally  adopted  policy  of  the
    38  hospital  that is expressly based on sincerely held religious beliefs or
    39  sincerely held moral convictions central  to  the  facility's  operating

    40  principles;
    41    (b)  The  hospital  has  informed the patient, family, or surrogate of
    42  such policy prior to or upon admission, if reasonably possible; and
    43    (c) The patient is transferred promptly to another  hospital  that  is
    44  reasonably  accessible  under the circumstances and willing to honor the
    45  decision and pending transfer the  hospital  complies  with  subdivision
    46  three  of  section twenty-nine hundred ninety-four-f of this article. If
    47  the patient's family or surrogate is unable or unwilling to arrange such
    48  a transfer, the hospital may intervene to facilitate such a transfer. If
    49  such a transfer is not effected, the hospital shall seek judicial relief
    50  in accordance with section twenty-nine  hundred  ninety-four-r  of  this

    51  article or honor the decision.
    52    2.  Individual health care providers. Nothing in this article shall be
    53  construed to require an individual as a health care provider to honor  a
    54  health care decision made pursuant to this article if:
    55    (a)  the decision is contrary to the individual's sincerely held reli-
    56  gious beliefs or sincerely held moral conviction; and

        A. 7729--D                         17
 
     1    (b) the individual health care provider promptly  informs  the  person
     2  who  made  the  decision and the hospital of his or her refusal to honor
     3  the decision. In  such  event,  the  hospital  shall  promptly  transfer
     4  responsibility for the patient to another individual health care provid-

     5  er  willing  to  honor the decision. The individual health care provider
     6  shall cooperate in facilitating such transfer and comply  with  subdivi-
     7  sion three of section twenty-nine hundred ninety-four-f of this article.
     8    §  2994-o.  Immunity.  1.  Ethics review committee. No person shall be
     9  subject to criminal or civil liability, or be deemed to have engaged  in
    10  unprofessional  conduct, for acts performed reasonably and in good faith
    11  pursuant to this article as a member of or as a consultant to an  ethics
    12  review committee or as a participant in an ethics review committee meet-
    13  ing.
    14    2.  Providers.  No  health  care provider or employee thereof shall be
    15  subjected to criminal or civil liability, or be deemed to  have  engaged

    16  in  unprofessional  conduct, for honoring reasonably and in good faith a
    17  health care decision made pursuant to this article or for other  actions
    18  taken reasonably and in good faith pursuant to this article.
    19    3.  Surrogates and guardians. No person shall be subjected to criminal
    20  or civil liability for making a health care decision reasonably  and  in
    21  good  faith  pursuant to this article or for other actions taken reason-
    22  ably and in good faith pursuant to this article.
    23    § 2994-p. Liability for health care costs. Liability for the  cost  of
    24  health  care provided to an adult patient pursuant to this article shall
    25  be the same as  if  the  health  care  were  provided  pursuant  to  the

    26  patient's decision. No person shall become liable for the cost of health
    27  care  for a minor solely by virtue of making a decision as a guardian of
    28  a minor pursuant to this article.
    29    § 2994-q. Effect on other rights. 1. Nothing in this article  creates,
    30  expands,  diminishes, impairs, or supersedes any authority that an indi-
    31  vidual may have under law to  make  or  express  decisions,  wishes,  or
    32  instructions  regarding  health care on his or her own behalf, including
    33  decisions about life-sustaining treatment.
    34    2. Nothing in  this  article  shall  affect  existing  law  concerning
    35  implied consent to health care in an emergency.
    36    3.  Nothing  in this article is intended to permit or promote suicide,

    37  assisted suicide, or euthanasia.
    38    4. This article shall not affect existing law with respect to sterili-
    39  zation.
    40    5. Nothing in this article diminishes the duty of  parents  and  legal
    41  guardians under existing law to consent to treatment for minors.
    42    §  2994-r.  Special  proceeding  authorized; court orders; health care
    43  guardian for minor patient. 1. Special proceeding. Any person  connected
    44  with the case and any member of the hospital ethics review committee may
    45  commence  a  special  proceeding  pursuant  to article four of the civil
    46  practice law and rules in a court of competent jurisdiction with respect
    47  to any matter arising under this article.

    48    2. Court orders designating surrogate. A court of competent  jurisdic-
    49  tion  may  designate  any  individual  from the surrogate list to act as
    50  surrogate, regardless of that individual's priority on the list, if  the
    51  court  determines  that  such  appointment  would  best  accord with the
    52  patient's wishes or, if the patient's wishes are not  reasonably  known,
    53  with  the  patient's  best  interests.  Unless otherwise determined by a
    54  court, no surrogate decision made prior to an order designating a surro-
    55  gate shall be deemed to have been invalid because of the issuance  of  a
    56  designating order.

        A. 7729--D                         18
 
     1    3.  Court  orders to withhold or withdraw life-sustaining treatment. A

     2  court of competent jurisdiction may authorize the withholding  or  with-
     3  drawal  of  life-sustaining  treatment from a person if the court deter-
     4  mines that the person lacks decision-making capacity, and withdrawing or
     5  withholding  the  treatment would accord with the standards set forth in
     6  subdivision five of section twenty-nine hundred  ninety-four-d  of  this
     7  article.
     8    4.  Health care guardian for a minor patient. (a) No appointment shall
     9  be made pursuant to this subdivision if a parent or  legal  guardian  of
    10  the  person  is available, willing, and competent to decide about treat-
    11  ment for the minor.
    12    (b) The following persons may commence a special proceeding in a court

    13  of competent jurisdiction to seek appointment as the health care guardi-
    14  an of a minor patient solely for the purpose of deciding about life-sus-
    15  taining treatment pursuant to this article:
    16    (i) the hospital administrator;
    17    (ii) an attending physician;
    18    (iii) the local commissioner of social services or the  local  commis-
    19  sioner of health, authorized to make medical treatment decisions for the
    20  minor  pursuant  to  section  three hundred eighty-three-b of the social
    21  services law; or
    22    (iv) an individual, eighteen years of age or older,  who  has  assumed
    23  care of the minor for a substantial and continuous period of time.
    24    (c)  Notice of the proceeding shall be given to the persons identified

    25  in section seventeen hundred five of  the  surrogate's  court  procedure
    26  act.
    27    (d) Notwithstanding any other provision of law, seeking appointment or
    28  being appointed as a health care guardian shall not otherwise affect the
    29  legal  status  or  rights  of  the  individual seeking or obtaining such
    30  appointment.
    31    § 2994-s. Remedy. 1. Any hospital or attending physician that  refuses
    32  to  honor  a  health  care decision by a surrogate made pursuant to this
    33  article and in accord with the standards set forth in this article shall
    34  not be entitled to compensation for treatment, services,  or  procedures
    35  refused by the surrogate, except that this subdivision shall not apply:

    36    (a)  when  a  hospital  or  physician  exercises the rights granted by
    37  section twenty-nine hundred ninety-four-n of this article, provided that
    38  the physician or hospital promptly fulfills the obligations set forth in
    39  section twenty-nine hundred ninety-four-n of this article;
    40    (b) while a matter is under consideration by the ethics review commit-
    41  tee, provided that the matter is promptly referred to and considered  by
    42  the committee;
    43    (c)  in  the  event  of a dispute between individuals on the surrogate
    44  list; or
    45    (d) if the physician or hospital prevails in any litigation concerning
    46  the surrogate's decision to refuse the treatment, services or procedure.

    47  Nothing in this section shall determine or  affect  how  disputes  among
    48  individuals on the surrogate list are resolved.
    49    2.  The  remedy provided in this section is in addition to and cumula-
    50  tive with any other remedies available at law or in equity or by  admin-
    51  istrative proceedings to a patient, a health care agent appointed pursu-
    52  ant  to article twenty-nine-C of this chapter, or a person authorized to
    53  make health care decisions pursuant to this article,  including  injunc-
    54  tive  and  declaratory  relief, and any other provisions of this chapter
    55  governing fines, penalties, or forfeitures.

        A. 7729--D                         19
 
     1    § 2994-t. Regulations. 1. The commissioner shall establish such  regu-

     2  lations as may be necessary to implement this article.
     3    2.  The  commissioner,  in  consultation with the commissioners of the
     4  office of mental health and the office of mental retardation and  devel-
     5  opmental  disabilities,  shall  promulgate  regulations  identifying the
     6  credentials of health care professionals qualified to provide  an  inde-
     7  pendent  determination, pursuant to subdivision three of section twenty-
     8  nine hundred ninety-four-c of this article, that a patient  lacks  deci-
     9  sion-making   capacity   because  of  mental  illness  or  developmental
    10  disability.
    11    § 2994-u. Rights to be publicized. The commissioner  shall  prepare  a
    12  statement summarizing the rights, duties, and requirements of this arti-

    13  cle  and  shall  require  that  a copy of such statement be furnished to
    14  patients or to persons on the surrogate list known to the  hospital,  or
    15  to  the parents or guardians of minor patients, at or prior to admission
    16  to the hospital, or within a reasonable time  thereafter,  and  to  each
    17  member of the hospital's staff directly involved with patient care.
 
    18                               ARTICLE 29-CCC
    19                    NONHOSPITAL ORDERS NOT TO RESUSCITATE
    20  Section 2994-aa. Definitions.
    21          2994-bb. General provisions.
    22          2994-cc. Consent to a nonhospital order not to resuscitate.
    23          2994-dd. Managing a nonhospital order not to resuscitate.
    24          2994-ee. Obligation to honor a nonhospital order not to resusci-

    25                     tate.
    26          2994-ff. Interinstitutional transfer.
    27          2994-gg. Immunity.
    28    §  2994-aa.  Definitions.  1. "Adult" means any person who is eighteen
    29  years of age or older, or is the parent of a child or has married.
    30    2. "Attending physician" means the physician who has primary responsi-
    31  bility for the treatment and care of the patient. Where  more  than  one
    32  physician  shares such responsibility, any such physician may act as the
    33  attending physician pursuant to this article.
    34    3. "Capacity" means the  ability  to  understand  and  appreciate  the
    35  nature  and  consequences  of  a  nonhospital  order not to resuscitate,
    36  including the benefits and disadvantages of such an order, and to  reach

    37  an informed decision regarding the order.
    38    4.  "Cardiopulmonary  resuscitation"  means  measures, as specified in
    39  regulations promulgated by the commissioner, to restore cardiac function
    40  or to support ventilation in the  event  of  a  cardiac  or  respiratory
    41  arrest.  Such term shall not include measures to improve ventilation and
    42  cardiac function in the absence of an arrest.
    43    5. "Emergency medical services personnel" means  the  personnel  of  a
    44  service or agency engaged in providing initial emergency medical assist-
    45  ance,  including  but not limited to first responders, emergency medical
    46  technicians,  advanced  emergency  medical  technicians  and   personnel
    47  engaged  in  providing  health  care at correctional facilities, as that

    48  term is defined in subdivision four of section  two  of  the  correction
    49  law.
    50    6. "Health care agent" means a health care agent of the patient desig-
    51  nated pursuant to article twenty-nine-C of this chapter.
    52    7. "Health or social services practitioner" means a registered profes-
    53  sional   nurse,  nurse  practitioner,  physician,  physician  assistant,
    54  psychologist or certified, licensed master  social  worker  or  licensed

        A. 7729--D                         20
 
     1  clinical  social worker, licensed or certified pursuant to the education
     2  law, acting within his or her scope of practice.
     3    8.  "Home care services agency" means an entity certified, licensed or
     4  exempt under article thirty-six of this chapter.

     5    9. "Hospice" means a hospice as defined in article forty of this chap-
     6  ter.
     7    10. "Hospital" means a general hospital as defined in subdivision  ten
     8  of  section  twenty-eight  hundred one of this chapter and a residential
     9  health care facility as defined in subdivision three of section  twenty-
    10  eight  hundred  one of this chapter or a hospital as defined in subdivi-
    11  sion ten of section 1.03 of the mental hygiene law or a school named  in
    12  section 13.17 of the mental hygiene law.
    13    11. "Hospital emergency services personnel" means the personnel of the
    14  emergency  service  of a general hospital, as defined in subdivision ten
    15  of section twenty-eight hundred one of this chapter, including  but  not

    16  limited  to  emergency services attending physicians, emergency services
    17  registered professional  nurses,  and  registered  professional  nurses,
    18  nursing staff and registered physician assistants assigned to the gener-
    19  al hospital's emergency service.
    20    12. "Mental hygiene facility" means a residential facility operated or
    21  licensed by the office of mental health or the office of mental retarda-
    22  tion and developmental disabilities.
    23    13. "Nonhospital order not to resuscitate" means an order that directs
    24  emergency  medical  services  personnel  and hospital emergency services
    25  personnel not to attempt cardiopulmonary resuscitation in  the  event  a
    26  patient suffers cardiac or respiratory arrest.

    27    14.  "Patient"  means  a  person  who  has been or who may be issued a
    28  nonhospital order not to resuscitate.
    29    15. "Surrogate" means a person authorized to make a health care  deci-
    30  sion  on  behalf of a patient pursuant to article twenty-nine-CC of this
    31  chapter.
    32    § 2994-bb. General  provisions.  1.  (a)  Emergency  medical  services
    33  personnel,  home  care services agency personnel, hospice personnel, and
    34  hospital emergency services personnel shall honor nonhospital orders not
    35  to resuscitate, except as provided in section twenty-nine hundred  nine-
    36  ty-four-ee of this article.
    37    (b)  A  nonhospital  order  not to resuscitate shall not constitute an

    38  order to withhold  or  withdraw  treatment  other  than  cardiopulmonary
    39  resuscitation.
    40    2.  A nonhospital order not to resuscitate may be issued during hospi-
    41  talization to take effect after hospitalization, or may be issued for  a
    42  person who is not a patient in, or a resident of, a hospital.
    43    §  2994-cc.  Consent  to a nonhospital order not to resuscitate. 1. An
    44  adult with decision-making capacity, a health care agent, or a surrogate
    45  may consent to a nonhospital order not  to  resuscitate  orally  to  the
    46  attending  physician or in writing. If a patient consents to a nonhospi-
    47  tal order not to resuscitate while in a correctional facility, notice of
    48  the patient's consent shall  be  given  to  the  facility  director  and

    49  reasonable  efforts  shall be made to notify an individual designated by
    50  the patient to receive such notice prior to the issuance of the  nonhos-
    51  pital order not to resuscitate. Notification to the facility director or
    52  the  individual  designated by the patient shall not delay issuance of a
    53  nonhospital order not to resuscitate.
    54    2. Consent by a health care agent shall be governed by  article  twen-
    55  ty-nine-C of this chapter.

        A. 7729--D                         21
 
     1    3.  Consent by a surrogate shall be governed by article twenty-nine-CC
     2  of this chapter, except that: (a) a  second  determination  of  capacity
     3  shall  be  made by a health or social services practitioner; and (b) the

     4  authority  of  the  ethics  review  committee  set  forth   in   article
     5  twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
     6  issued in a hospital.
     7    4. (a) When the concurrence of a second physician is sought to fulfill
     8  the requirements for the issuance of a nonhospital order not to resusci-
     9  tate for patients in a  correctional  facility,  such  second  physician
    10  shall  be  selected  by  the  chief medical officer of the department of
    11  correctional services or his or her designee.
    12    (b) When the concurrence of a second physician is  sought  to  fulfill
    13  the requirements for the issuance of a nonhospital order not to resusci-
    14  tate  for hospice and home care patients, such second physician shall be

    15  selected by the hospice medical director or  hospice  nurse  coordinator
    16  designated  by  the medical director or by the home care services agency
    17  director of patient care services, as appropriate to the patient.
    18    5. Consent by a patient or a surrogate  for  a  patient  in  a  mental
    19  hygiene  facility  shall  be  governed  by article twenty-nine-B of this
    20  chapter.
    21    § 2994-dd. Managing a nonhospital order not  to  resuscitate.  1.  The
    22  attending physician shall record the issuance of a nonhospital order not
    23  to resuscitate in the patient's medical record.
    24    2. A nonhospital order not to resuscitate shall be issued upon a stan-
    25  dard  form  prescribed  by the commissioner. The commissioner shall also

    26  develop a standard bracelet that may be worn by a patient with a nonhos-
    27  pital order not to resuscitate to identify that status; provided, howev-
    28  er, that no person may require a patient to wear  such  a  bracelet  and
    29  that no person may require a patient to wear such a bracelet as a condi-
    30  tion  for honoring a nonhospital order not to resuscitate or for provid-
    31  ing health care services.
    32    3. An attending physician who has issued a nonhospital  order  not  to
    33  resuscitate, and who transfers care of the patient to another physician,
    34  shall inform the physician of the order.
    35    4.  For  each  patient for whom a nonhospital order not to resuscitate
    36  has been issued, the attending physician shall review whether the  order

    37  is still appropriate in light of the patient's condition each time he or
    38  she  examines  the patient, whether in the hospital or elsewhere, but at
    39  least every ninety days, provided that the review need  not  occur  more
    40  than  once  every  seven  days. The attending physician shall record the
    41  review in the patient's medical record provided, however, that a  regis-
    42  tered  nurse  who  provides  direct  care  to the patient may record the
    43  review in the medical record at the direction of the physician. In  such
    44  case, the attending physician shall include a confirmation of the review
    45  in  the  patient's  medical  record within fourteen days of such review.
    46  Failure to comply with this subdivision shall not render  a  nonhospital

    47  order not to resuscitate ineffective.
    48    5.  A  person who has consented to a nonhospital order not to resusci-
    49  tate may at any time revoke his or her consent to the order by  any  act
    50  evidencing  a  specific  intent  to revoke such consent. Any health care
    51  professional informed of a revocation of consent to a nonhospital  order
    52  not  to  resuscitate shall notify the attending physician of the revoca-
    53  tion. An attending physician who is informed that  a  nonhospital  order
    54  not  to  resuscitate has been revoked shall record the revocation in the
    55  patient's medical record, cancel the order and make diligent efforts  to
    56  retrieve the form issuing the order, and the standard bracelet, if any.

        A. 7729--D                         22

 
     1    6.  The  commissioner may authorize the use of one or more alternative
     2  forms for issuing a nonhospital order not to resuscitate  (in  place  of
     3  the  standard  form prescribed by the commissioner under subdivision two
     4  of this section). Such alternative form or forms may  also  be  used  to
     5  issue  a  non-hospital do not intubate order. Any such alternative forms
     6  intended for use for persons with mental  retardation  or  developmental
     7  disabilities  or persons with mental illness who are incapable of making
     8  their own health care decisions or who have a  guardian  of  the  person
     9  appointed  pursuant  to  article eighty-one of the mental hygiene law or
    10  article seventeen-A of the surrogate's court procedure act must also  be

    11  approved  by  the  commissioner  of mental retardation and developmental
    12  disabilities or the commissioner of mental health,  as  appropriate.  An
    13  alternative  form  under  this  subdivision shall otherwise conform with
    14  applicable federal and state  law.  This  subdivision  does  not  limit,
    15  restrict  or  impair the use of an alternative form for issuing an order
    16  not to resuscitate in a general  hospital  or  residential  health  care
    17  facility  under article twenty-eight of this chapter or a hospital under
    18  subdivision ten of section 1.03 of the mental hygiene law  or  a  school
    19  under section 13.17 of the mental hygiene law.
    20    § 2994-ee. Obligation to honor a nonhospital order not to resuscitate.

    21  Emergency  medical services personnel, home care services agency person-
    22  nel, hospice personnel, or hospital emergency services personnel who are
    23  provided with a nonhospital order not to resuscitate,  or  who  identify
    24  the standard bracelet on the patient's body, shall comply with the terms
    25  of such order; provided, however, that:
    26    1.  Emergency  medical  services  personnel, home care services agency
    27  personnel, hospice personnel, or hospital emergency  services  personnel
    28  may disregard the order if:
    29    (a)  They  believe  in  good  faith that consent to the order has been
    30  revoked, or that the order has been cancelled; or
    31    (b) Family members or others on the scene, excluding  such  personnel,

    32  object to the order and physical confrontation appears likely; and
    33    2. Hospital emergency services physicians may direct that the order be
    34  disregarded  if  other significant and exceptional medical circumstances
    35  warrant disregarding the order.
    36    § 2994-ff. Interinstitutional transfer. If a patient with a  nonhospi-
    37  tal  order not to resuscitate is admitted to a hospital, the order shall
    38  be treated as an order not to resuscitate for a patient transferred from
    39  another hospital, and shall be governed  by  article  twenty-nine-CC  of
    40  this  chapter,  except  that  any such order for a patient admitted to a
    41  mental hygiene facility shall be governed by  article  twenty-nine-B  of
    42  this chapter.

    43    §  2994-gg.  Immunity. No person shall be subjected to criminal prose-
    44  cution or civil liability, or be deemed to  have  engaged  in  unprofes-
    45  sional  conduct,  for  honoring reasonably and in good faith pursuant to
    46  this section a nonhospital order not to resuscitate, for disregarding  a
    47  nonhospital order pursuant to section twenty-nine hundred ninety-four-ee
    48  of this article, or for other actions taken reasonably and in good faith
    49  pursuant to this section.
    50    §  3.  Subdivision  1  of  section 2805-q of the public health law, as
    51  added by chapter 471 of the laws of 2004, is amended to read as follows:
    52    1. No domestic partner or surrogate as defined by subdivision  twenty-
    53  nine  of section twenty-nine hundred ninety-four-a of this chapter shall

    54  be denied any rights of visitation of his or her domestic partner or  of
    55  the  patient  or resident for whom he or she is the surrogate, when such

        A. 7729--D                         23
 
     1  rights are accorded to spouses and next-of-kin at any hospital,  nursing
     2  home or health care facility.
     3    §  4. The article heading of article 29-B of the public health law, as
     4  added by chapter 818 of the laws of 1987, is amended to read as follows:
     5          ORDERS NOT TO RESUSCITATE FOR RESIDENTS OF MENTAL HYGIENE
     6                                 FACILITIES
     7    § 5. Subdivisions 7, 10, 13 and 16  of  section  2961  of  the  public
     8  health law are REPEALED.
     9    §  6.  Subdivisions  2,  4,  5, 9 and 19 of section 2961 of the public

    10  health law, subdivisions 2 and 19 as amended and subdivision 9 as renum-
    11  bered by chapter 370 of the laws of 1991 and subdivisions 4, 5 and 9  as
    12  added  by  chapter  818  of  the  laws  of  1987, are amended to read as
    13  follows:
    14    2. "Attending physician" means the physician selected by  or  assigned
    15  to  a  patient  in  a hospital [or, for the purpose of provisions herein
    16  governing nonhospital orders not to resuscitate,  a  patient  not  in  a
    17  hospital,]  who has primary responsibility for the treatment and care of
    18  the patient. Where more than one physician shares  such  responsibility,
    19  any  such  physician may act as the attending physician pursuant to this
    20  article.
    21    4. "Cardiopulmonary resuscitation" means measures[,  as  specified  in
    22  regulations  promulgated  by the commissioner,] to restore cardiac func-

    23  tion or to support ventilation in the event of a cardiac or  respiratory
    24  arrest.  Cardiopulmonary  resuscitation  shall  not  include measures to
    25  improve ventilation and cardiac functions in the absence of an arrest.
    26    5. "Close friend" means any person, eighteen years of  age  or  older,
    27  who [presents an affidavit to an attending physician stating that he] is
    28  a  close friend of the patient [and that he], or relative of the patient
    29  (other than a spouse, adult child, parent, brother or  sister)  who  has
    30  maintained  such regular contact with the patient as to be familiar with
    31  the patient's activities, health, and religious or  moral  beliefs  [and
    32  stating  the  facts and circumstances that demonstrate such familiarity]
    33  and who presents a signed statement to  that  effect  to  the  attending

    34  physician.
    35    9.  "Hospital" means [a general hospital as defined in subdivision ten
    36  of section twenty-eight hundred one of this chapter  and  a  residential
    37  health  care facility as defined in subdivision three of section twenty-
    38  eight hundred one of this chapter or] a hospital as defined in  subdivi-
    39  sion  ten of section 1.03 of the mental hygiene law or a school named in
    40  section 13.17 of the mental hygiene law.
    41    19. "Patient" means a person admitted  to  a  hospital  [or,  for  the
    42  purpose  of provisions herein governing nonhospital orders not to resus-
    43  citate, a person who has or may be issued a  nonhospital  order  not  to
    44  resuscitate].
    45    §  7. Section 2961 of the public health law is amended by adding a new
    46  subdivision 6-a to read as follows:

    47    6-a. "Domestic partner" means a person who, with  respect  to  another
    48  person:
    49    (a) is formally a party in a domestic partnership or similar relation-
    50  ship  with  the  other  person, entered into pursuant to the laws of the
    51  United States or of any state, local or foreign jurisdiction, or  regis-
    52  tered  as  the  domestic  partner  of the other person with any registry
    53  maintained by the employer of either party or any  state,  municipality,
    54  or foreign jurisdiction; or
    55    (b)  is  formally  recognized as a beneficiary or covered person under
    56  the other person's employment benefits or health insurance; or

        A. 7729--D                         24
 

     1    (c) is dependent or mutually interdependent on the  other  person  for
     2  support,  as evidenced by the totality of the circumstances indicating a
     3  mutual intent to be domestic partners  including  but  not  limited  to:
     4  common  ownership  or joint leasing of real or personal property; common
     5  householding,  shared  income  or  shared  expenses; children in common;
     6  signs of intent to marry or become domestic partners under paragraph (a)
     7  or (b) of this subdivision; or the length of the  personal  relationship
     8  of the persons.
     9    Each  party  to  a  domestic partnership shall be considered to be the
    10  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
    11  include a person who is related to the other person by blood in a manner

    12  that would bar marriage to the other person in New York state. "Domestic
    13  partner"  also  shall  not  include any person who is less than eighteen
    14  years of age or who is the adopted child of the other person or  who  is
    15  related  by  blood in a manner that would bar marriage in New York state
    16  to a person who is the lawful spouse of the other person.
    17    § 8. Subdivision 1, paragraph (b) of subdivision 3 and  subdivision  4
    18  of  section 2963 of the public health law, subdivisions 1 and 4 as added
    19  by chapter 818 of the laws of 1987 and paragraph (b) of subdivision 3 as
    20  amended by chapter 23 of the laws  of  1994,  are  amended  to  read  as
    21  follows:
    22    1.  Every adult shall be presumed to have the capacity to make a deci-
    23  sion regarding cardiopulmonary resuscitation unless determined otherwise

    24  pursuant to this section or pursuant to a court order[. A lack of capac-
    25  ity shall not be presumed from the fact that a committee of the property
    26  or conservator has been appointed for  the  adult  pursuant  to  article
    27  seventy-seven  or  seventy-eight  of  the  mental hygiene law, or that a
    28  guardian has been appointed  pursuant  to  article  seventeen-A  of  the
    29  surrogate's  court  procedure act] or unless a guardian is authorized to
    30  decide about health care for the adult pursuant to article eighty-one of
    31  the mental hygiene law or article seventeen-A of the  surrogate's  court
    32  procedure  act.   The attending physician shall not rely on the presump-
    33  tion stated in this subdivision if clinical indicia  of  incapacity  are
    34  present.

    35    (b)  If  the  attending physician [of a patient in a general hospital]
    36  determines that a patient lacks capacity because of mental illness,  the
    37  concurring  determination  required by paragraph (a) of this subdivision
    38  shall be provided by a physician licensed to practice  medicine  in  New
    39  York state, who is a diplomate or eligible to be certified by the Ameri-
    40  can  Board of Psychiatry and Neurology or who is certified by the Ameri-
    41  can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
    42  certified by that board.
    43    4.  Notice  of  a  determination that the patient lacks capacity shall
    44  promptly be given (a) to the patient, where there is any  indication  of
    45  the patient's ability to comprehend such notice, together with a copy of
    46  a  statement  prepared  in  accordance  with section twenty-nine hundred

    47  seventy-eight of this article, and (b) to the person  on  the  surrogate
    48  list highest in order of priority listed, when persons in prior subpara-
    49  graphs are not reasonably available[, and (c) if the patient is in or is
    50  transferred  from  a mental hygiene facility, to the facility director].
    51  Nothing in this subdivision shall preclude or  require  notice  to  more
    52  than one person on the surrogate list.
    53    §  9.  Subdivisions 3 and   4 of section 2964 of the public health law
    54  are REPEALED.
    55    § 10. Paragraph (a) of subdivision 2 of section  2965  of  the  public
    56  health  law,  as  added  by chapter 818 of the laws of 1987 and subpara-

        A. 7729--D                         25
 
     1  graphs (i), (ii), (iii), (iv), (v) and (vi)  as  redesignated  and  such

     2  subdivision as renumbered by chapter 370 of the laws of 1991, is amended
     3  to read as follows:
     4    (a)  One  person  from  the  following  list, to be chosen in order of
     5  priority listed, when persons in the prior [subparagaphs]  subparagraphs
     6  are not reasonably available, willing to make a decision regarding issu-
     7  ance  of  an  order not to resuscitate, and competent to make a decision
     8  regarding issuance of an  order  not  to  resuscitate,  shall  have  the
     9  authority  to  act  as surrogate on behalf of the patient. However, such
    10  person may  designate any other person on  the  list  to  be  surrogate,
    11  provided no one in a higher class than the person designated objects:
    12    (i) a [committee of the person or] guardian authorized to decide about

    13  health  care pursuant to article eighty-one of the mental hygiene law or
    14  a guardian of a person appointed [pursuant to] under article seventeen-A
    15  of the surrogate's court procedure act,  provided  that  this  paragraph
    16  shall not be construed to require the appointment of a [committee of the
    17  person  or]  guardian  for the purpose of making the resuscitation deci-
    18  sion;
    19    (ii) the spouse, if not legally separated from  the  patient,  or  the
    20  domestic partner;
    21    (iii) a son or daughter eighteen years of age or older;
    22    (iv) a parent;
    23    (v) a brother or sister eighteen years of age or older; and
    24    (vi) a close friend.
    25    § 11. Paragraph (c) of subdivision 4 and subdivision 5 of section 2965
    26  of the public health law are REPEALED.

    27    §  12.  Paragraph  (d)  of subdivision 4 of section 2965 of the public
    28  health law, as added by chapter 818 of the laws of 1987 and such  subdi-
    29  vision  as  renumbered by chapter 370 of the laws of 1991, is amended to
    30  read as follows:
    31    [(d)] (c) If the attending physician has actual notice  of  opposition
    32  to a surrogate's consent to an order not to resuscitate by any person on
    33  the  surrogate  list[, or, if the patient is in or is transferred from a
    34  mental hygiene facility, by  the  facility  director],  the  [phsyician]
    35  physician  shall  submit  the matter to the dispute mediation system and
    36  such order shall not be issued or shall be revoked  in  accordance  with
    37  the  provisions  of  subdivision  three  of  section twenty-nine hundred
    38  seventy-two of this article.

    39    § 13. Subdivision 2 of section  2966  of  the  public  health  law  is
    40  REPEALED.
    41    §  14.    Subdivision  3  of section 2966 of the public health law, as
    42  added by chapter 818 of the laws of 1987, is amended to read as follows:
    43    3. Notwithstanding any other provision of this section, where a  deci-
    44  sion  to consent to an order not to resuscitate has been made, notice of
    45  the decision shall be given to the patient where there is any indication
    46  of the patient's ability to comprehend  such  notice[,  except  where  a
    47  determination  has  been  made  pursuant to subdivision three of section
    48  twenty-nine hundred sixty-four of this article]. If the patient objects,
    49  an order not to resuscitate shall not be issued.
    50    § 15. Paragraph (c) of subdivision 2 of section  2967  of  the  public
    51  health law is REPEALED.

    52    §  16.  Subdivision  1  of  section  2970 of the public health law, as
    53  amended by chapter 370 of the laws  of  1991,  is  amended  to  read  as
    54  follows:
    55    1.  For  each  patient  for  whom an order not to resuscitate has been
    56  issued, the attending physician shall  review  the  patient's  chart  to

        A. 7729--D                         26
 
     1  determine  if  the  order is still appropriate in light of the patient's
     2  condition and shall indicate on the patient's chart that the  order  has
     3  been reviewed[:
     4    (a) for a patient, excluding outpatients described in paragraph (b) of
     5  this  subdivision  and  alternate level of care patients, in a hospital,
     6  other than a residential health care  facility,  at  least  every  seven
     7  days;

     8    (b)  for  an  outpatient  whose  order not to resuscitate is effective
     9  while the patient receives care in a hospital, each time  the  attending
    10  physician  examines  the  patient, whether in the hospital or elsewhere,
    11  provided that the review need not occur more than once every seven days;
    12  and
    13    (c) for a patient in a residential health care facility or  an  alter-
    14  nate  level  of  care  patient  in a hospital,] each time the patient is
    15  required to be seen by a physician but at least every sixty days.
    16    Failure to comply with this subdivision shall not render an order  not
    17  to resuscitate ineffective.
    18    § 17. Section 2971 of the public health law is amended by adding a new
    19  subdivision 3 to read as follows:

    20    3. For purposes of this section, an order not to resuscitate issued by
    21  a general hospital as defined in subdivision ten of section twenty-eight
    22  hundred one of this chapter, or by a residential health care facility as
    23  defined in subdivision three of section twenty-eight hundred one of this
    24  chapter, shall be deemed a hospital order not to resuscitate.
    25    §  18.  Subdivision  2  of  section  2972 of the public health law, as
    26  amended by chapter 370 of the laws  of  1991,  is  amended  to  read  as
    27  follows:
    28    2.  The  dispute  mediation  system shall be authorized to mediate any
    29  dispute, including disputes regarding the determination of the patient's
    30  capacity, arising under this article between the patient and an  attend-
    31  ing physician or the hospital that is caring for the patient and, if the

    32  patient  is  a minor, the patient's parent, or among an attending physi-
    33  cian, a parent, non-custodial parent,  or  legal  guardian  of  a  minor
    34  patient,  any  person  on  the  surrogate list, and the hospital that is
    35  caring for the patient [and, where the dispute involves a patient who is
    36  in or is transferred from a mental hygiene facility, the facility direc-
    37  tor].
    38    § 19. Subdivision 1 of section 2973  of  the  public  health  law,  as
    39  amended  by  chapter  577  of  the  laws  of 1993, is amended to read as
    40  follows:
    41    1. The  patient,  an  attending  physician,  a  parent,  non-custodial
    42  parent,  or  legal guardian of a minor patient, any person on the surro-
    43  gate list, the hospital that is caring for the patient and[, in disputes

    44  involving a patient who is in or is transferred from a mental hygiene or
    45  correctional facility,] the facility director, may  commence  a  special
    46  proceeding pursuant to article four of the civil practice law and rules,
    47  in  a court of competent jurisdiction, with respect to any dispute aris-
    48  ing under this article, except that the decision of  a  patient  not  to
    49  consent  to issuance of an order not to resuscitate may not be subjected
    50  to judicial review. In any proceeding brought pursuant to this  subdivi-
    51  sion challenging a decision regarding issuance of an order not to resus-
    52  citate  on  the  ground  that  the decision is contrary to the patient's
    53  wishes or best interests, the person or entity challenging the  decision
    54  must  show,  by  clear  and  convincing  evidence,  that the decision is
    55  contrary  to  the  patient's  wishes  including  consideration  of   the

    56  patient's religious and moral beliefs, or, in the absence of evidence of

        A. 7729--D                         27
 
     1  the  patient's  wishes,  that  the decision is contrary to the patient's
     2  best interests. In any other proceeding brought pursuant to this  subdi-
     3  vision, the court shall make its determination based upon the applicable
     4  substantive standards and procedures set forth in this article.
     5    § 20. Section 2977 of the public health law is REPEALED.
     6    §  21.  Subdivision  1  of  section  2978  of the public health law is
     7  REPEALED and subdivision 2, as added by chapter 818 of the laws of 1987,
     8  such section as renumbered by chapter  370  of  the  laws  of  1991,  is
     9  amended to read as follows:
    10    [2.]  The  commissioners  of  mental health and mental retardation and

    11  developmental disabilities[, in consultation with  the  commissioner  of
    12  health,] shall establish such regulations as may be necessary for imple-
    13  mentation  of  this  article  with  respect  to  those persons in mental
    14  hygiene facilities.
    15    § 22. The opening paragraph of subdivision 1 of section  2979  of  the
    16  public  health  law,  as  added by chapter 818 of the laws of 1987, such
    17  section as renumbered by chapter 370 of the laws of 1991, is amended  to
    18  read as follows:
    19    The  [commissioner of health, after consultation with the] commission-
    20  ers of mental health and mental retardation and developmental  disabili-
    21  ties[,]  shall  prepare  a statement summarizing the rights, duties, and
    22  requirements of this article and shall  require  that  a  copy  of  such
    23  statement:

    24    §  23.  Subdivisions 3 and 4 of section 2984 of the public health law,
    25  as added by chapter 752 of the laws of  1990,  are  amended  and  a  new
    26  subdivision 5 is added to read as follows:
    27    3.  Notwithstanding  subdivision  two of this section, nothing in this
    28  article shall be construed to require a private  hospital  to  honor  an
    29  agent's  health  care  decision that the hospital would not honor if the
    30  decision had been made by the principal because the decision is contrary
    31  to a formally adopted policy of the hospital that is expressly based  on
    32  religious  beliefs  or  sincerely  held moral convictions central to the
    33  facility's operating principles and the hospital would be  permitted  by
    34  law to refuse to honor the decision if made by the principal, provided:
    35    (a)  the hospital has informed the patient or the health care agent of

    36  such policy prior to or upon admission, if reasonably possible; and
    37    (b) the patient is transferred promptly to another  hospital  that  is
    38  reasonably  accessible  under  the circumstances and is willing to honor
    39  the agent's decision and pending transfer  the  hospital  complies  with
    40  subdivision  five  of this section.  If the agent is unable or unwilling
    41  to arrange such a transfer, the hospital  may  intervene  to  facilitate
    42  such  a transfer. If such a transfer is not effected, the hospital shall
    43  seek judicial relief in  accordance  with  section  twenty-nine  hundred
    44  ninety-two of this article or honor the agent's decision.
    45    4.  Notwithstanding  subdivision  two of this section, nothing in this
    46  article shall be construed to require an individual  as  a  health  care

    47  provider  to  honor  an agent's health care decision that the individual
    48  would not honor if the decision had been made by the  principal  because
    49  the  decision  is  contrary  to  the  individual's  religious beliefs or
    50  sincerely held moral convictions, provided the  individual  health  care
    51  provider  promptly informs the health care agent and the hospital of his
    52  or her refusal to honor the agent's decision. In such event, the  hospi-
    53  tal  shall  promptly  transfer responsibility for the patient to another
    54  individual health care provider willing to honor the  agent's  decision.
    55  The individual health care provider shall cooperate in facilitating such

        A. 7729--D                         28
 
     1  transfer  of  the  patient  and  comply  with  subdivision  five of this
     2  section.

     3    5.  Notwithstanding  the provisions of this section or subdivision two
     4  of section twenty-nine hundred eighty-nine of this article, if an  agent
     5  directs  the provision of life-sustaining treatment, the denial of which
     6  in reasonable medical judgment would be likely to result in the death of
     7  the patient, a hospital or individual health care provider that does not
     8  wish to provide such treatment shall nonetheless comply with the agent's
     9  decision pending either transfer of the patient to a willing hospital or
    10  individual health care provider, or judicial review in  accordance  with
    11  section twenty-nine hundred ninety-two of this article.
    12    § 24. Section 2980 of the public health law is amended by adding a new
    13  subdivision 9-a to read as follows:

    14    9-a. "Life-sustaining treatment" means any medical treatment or proce-
    15  dure  without which the patient will die within a relatively short time,
    16  as determined by an  attending  physician  to  a  reasonable  degree  of
    17  medical certainty.  For purposes of this article, cardiopulmonary resus-
    18  citation  is  presumed  to  be  a  life sustaining treatment without the
    19  necessity of a determination by an attending physician.
    20    § 25. Paragraph 8 of subdivision (a) of section 81.22  of  the  mental
    21  hygiene  law,  as amended by chapter 438 of the laws of 2004, is amended
    22  to read as follows:
    23    8. [consent to or refuse generally accepted routine or  major  medical
    24  or  dental  treatment  subject  to  the provisions of subdivision (e) of

    25  section 81.29 of this article dealing with  life  sustaining  treatment;
    26  the guardian shall make treatment decisions consistent with the findings
    27  under section 81.15 of this article and in accordance with the patient's
    28  wishes,  including  the patient's religious and moral beliefs, or if the
    29  patient's wishes are not known and cannot be ascertained with reasonable
    30  diligence, in accordance with the person's best interests,  including  a
    31  consideration  of the dignity and uniqueness of every person, the possi-
    32  bility and extent of preserving the  person's  life,  the  preservation,
    33  improvement  or  restoration  of the person's health or functioning, the
    34  relief of the person's suffering, the adverse  side  effects  associated

    35  with  the treatment, any less intrusive alternative treatments, and such
    36  other concerns and values as a reasonable person  in  the  incapacitated
    37  person's  circumstances  would  wish  to  consider] (i) for decisions in
    38  hospitals as defined by  subdivision  eighteen  of  section  twenty-nine
    39  hundred  ninety-four-a  of  the  public health law, act as the patient's
    40  surrogate pursuant to and  subject  to  article  twenty-nine-CC  of  the
    41  public health law, and (ii) in all other circumstances, to consent to or
    42  refuse  generally accepted routine or major medical or dental treatment,
    43  subject to the decision-making standard in subdivision four  of  section
    44  twenty-nine hundred ninety-four-d of the public health law;

    45    §  26.  Subdivision  (e) of section 81.29 of the mental hygiene law is
    46  REPEALED.
    47    § 27. The opening paragraph and paragraphs (a) and (b) of  subdivision
    48  1  and  the  opening paragraph of subdivision 4 of section 1750-b of the
    49  surrogate's court procedure act, the opening paragraph of subdivision  1
    50  as amended and paragraphs (a) and (b) of subdivision 1 as added by chap-
    51  ter  105  of the laws of 2007, the closing paragraph of paragraph (a) of
    52  subdivision 1 as amended by chapter 12 of the laws of 2009 and the open-
    53  ing paragraph of subdivision 4 as added by chapter 500 of  the  laws  of
    54  2002, are amended to read as follows:
    55    Unless specifically prohibited by the court after consideration of the
    56  determination,  if  any, regarding a mentally retarded person's capacity

        A. 7729--D                         29
 

     1  to make health care decisions, which is required  by  section  seventeen
     2  hundred  fifty  of  this  article, the guardian of such person appointed
     3  pursuant to section seventeen hundred fifty of this article  shall  have
     4  the  authority  to make any and all health care decisions, as defined by
     5  subdivision six of section twenty-nine  hundred  eighty  of  the  public
     6  health  law,  on behalf of the mentally retarded person that such person
     7  could make if such person had capacity. Such decisions may include deci-
     8  sions to withhold or withdraw life-sustaining treatment[, as defined  in
     9  subdivision  (e)  of  section  81.29  of  the  mental  hygiene law]. For
    10  purposes of this  section,  "life-sustaining  treatment"  means  medical
    11  treatment,  including  cardiopulmonary  resuscitation  and nutrition and

    12  hydration provided by means of medical treatment,  which  is  sustaining
    13  life  functions and without which, according to reasonable medical judg-
    14  ment, the patient will  die  within  a  relatively  short  time  period.
    15  Cardiopulmonary  resuscitation  is presumed to be life-sustaining treat-
    16  ment without the necessity of a medical judgment by an attending  physi-
    17  cian.  The  provisions  of  this  article  are not intended to permit or
    18  promote suicide, assisted suicide or euthanasia; accordingly, nothing in
    19  this section shall be construed to permit a guardian to consent  to  any
    20  act  or omission to which the mentally retarded person could not consent
    21  if such person had capacity.
    22    (a) For the purposes of making a  decision  to  withhold  or  withdraw

    23  life-sustaining  treatment  pursuant  to  this section, in the case of a
    24  person for whom no guardian  has  been  appointed  pursuant  to  section
    25  seventeen  hundred fifty or seventeen hundred fifty-a of this article, a
    26  "guardian" shall also mean a family member  of  a  person  who  (i)  has
    27  mental  retardation,  or (ii) has a developmental disability, as defined
    28  in section 1.03 of the mental hygiene law,  which  (A)  includes  mental
    29  retardation, or (B) results in a similar impairment of general intellec-
    30  tual  functioning  or adaptive behavior so that such person is incapable
    31  of managing himself or herself, and/or his or her affairs by  reason  of
    32  such   developmental  disability.  Qualified  family  members  shall  be
    33  included in a prioritized list of said family members pursuant to  regu-
    34  lations established by the commissioner of mental retardation and devel-

    35  opmental  disabilities.  Such family members must have a significant and
    36  ongoing involvement in a person's life so as to  have  sufficient  know-
    37  ledge  of  their  needs and, when reasonably known or ascertainable, the
    38  person's wishes, including moral and religious beliefs.  In the case  of
    39  a  person  who  was a resident of the former Willowbrook state school on
    40  March seventeenth, nineteen hundred seventy-two  and  those  individuals
    41  who were in community care status on that date and subsequently returned
    42  to  Willowbrook  or a related facility, who are fully represented by the
    43  consumer advisory board and who have no guardians appointed pursuant  to
    44  this  article  or  have no qualified family members to make such a deci-

    45  sion, then a "guardian" shall also mean the Willowbrook  consumer  advi-
    46  sory board. A decision of such family member or the Willowbrook consumer
    47  advisory  board  to withhold or withdraw life-sustaining treatment shall
    48  be subject to all of the protections, procedures  and  safeguards  which
    49  apply  to  the  decision of a guardian to withhold or withdraw life-sus-
    50  taining treatment pursuant to this section.
    51    In the case of a person for whom no guardian has been appointed pursu-
    52  ant to this article or for whom there is no qualified family  member  or
    53  the  Willowbrook  consumer advisory board available to make such a deci-
    54  sion, a "guardian" shall also mean, notwithstanding the  definitions  in
    55  section  80.03  of  the  mental hygiene law, a surrogate decision-making

    56  committee, as defined in article eighty of the mental hygiene  law.  All

        A. 7729--D                         30
 
     1  declarations  and  procedures, including expedited procedures, to comply
     2  with this section shall be established by regulations promulgated by the
     3  commission on quality of care and advocacy for  persons  with  disabili-
     4  ties.
     5    (b)  Regulations establishing the prioritized list of qualified family
     6  members required by paragraph (a) of this subdivision shall be developed
     7  by the commissioner of mental retardation and developmental disabilities
     8  in conjunction with parents, advocates and family members of persons who
     9  are mentally retarded.  Regulations to implement the  authority  of  the
    10  Willowbrook  consumer  advisory  board pursuant to paragraph (a) of this

    11  subdivision may be promulgated by the  commissioner  of  the  office  of
    12  mental  retardation  and developmental disabilities with advice from the
    13  Willowbrook consumer advisory board.
    14    The guardian shall have the affirmative obligation to advocate for the
    15  full and efficacious provision of health care, including life-sustaining
    16  treatment [as defined in subdivision (e) of section 81.29 of the  mental
    17  hygiene  law]. In the event that a guardian makes a decision to withdraw
    18  or withhold life-sustaining treatment from a mentally retarded person:
    19    § 28. Issues to be considered by the task force on life and  the  law;
    20  special  advisory committee.   The New York state task force on life and
    21  the law (referred to in this  section  as  the  "task  force"),  a  body

    22  created  by  executive order number 56 (issued December 20, 1984), shall
    23  consider and make regulatory and statutory recommendations  relating  to
    24  the family health care decisions act (article 29-CC of the public health
    25  law,  referred to in this section as the "FHCDA"), including the follow-
    26  ing:
    27    1. The task force shall consider whether the FHCDA should  be  amended
    28  to  incorporate  procedures, standards and practices for decisions about
    29  the withdrawal or withholding of life-sustaining treatment from patients
    30  with mental illness or mental retardation or developmental disabilities,
    31  and from patients residing in mental health facilities.  The task  force
    32  shall  form a special advisory committee to advise the task force in its
    33  work under  this  subdivision.  The  special  advisory  committee  shall
    34  consist  of  six  task  force members, selected by the chair of the task

    35  force, three persons selected by  the  commissioner  of  the  office  of
    36  mental  health,  and  three  persons selected by the commissioner of the
    37  office of mental retardation and developmental disabilities. The special
    38  advisory committee shall solicit comments from a broader range of inter-
    39  ested persons.
    40    2. The task force shall consider whether the FHCDA should  be  amended
    41  to  apply to health care decisions in settings other than general hospi-
    42  tals and residential health care facilities.
    43    § 29. This act shall take effect immediately; provided  that  sections
    44  one  through  twenty-six  of  this act shall take effect on the first of
    45  June next succeeding the date on which this act shall have become a law;
    46  and provided further that effective immediately it shall be lawful for a
    47  hospital, as defined in subdivision 18 of section 2994-a of  the  public

    48  health  law,  as  added by this act to adopt a policy that is consistent
    49  with the requirements of article 29-CC of the public health law as added
    50  by section two of this act or the  mental  hygiene  law  as  amended  by
    51  sections  twenty-five  and  twenty-six of this act and for a health care
    52  provider to accept and carry out a health care  decision  in  accordance
    53  with such requirements for a patient in a hospital that has adopted such
    54  policy.
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