STATE OF NEW YORK
________________________________________________________________________
6314
IN SENATE(Prefiled)
January 6, 2016
___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to authorizing nurse
practitioners to execute orders not to resuscitate and orders pertain-
ing to life sustaining treatments
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2960 of the public health law, as added by chapter
2 818 of the laws of 1987, is amended to read as follows:
3 § 2960. Legislative findings and purpose. The legislature finds that,
4 although cardiopulmonary resuscitation has proved invaluable in the
5 prevention of sudden, unexpected death, it is appropriate for an attend-
6 ing physician or attending nurse practitioner, in certain circumstances,
7 to issue an order not to attempt cardiopulmonary resuscitation of a
8 patient where appropriate consent has been obtained. The legislature
9 further finds that there is a need to clarify and establish the rights
10 and obligations of patients, their families, and health care providers
11 regarding cardiopulmonary resuscitation and the issuance of orders not
12 to resuscitate.
13 § 2. Subdivisions 2, 5 and 20 of section 2961 of the public health
14 law, subdivisions 2 and 5 as amended by chapter 8 of the laws of 2010,
15 and subdivision 20 as added by chapter 818 of the laws of 1987 and as
16 renumbered by chapter 370 of the laws of 1991, are amended and two new
17 subdivisions 2-a and 16 are added to read as follows:
18 2. "Attending physician" means the physician selected by or assigned
19 to a patient in a hospital who has primary responsibility for the treat-
20 ment and care of the patient. Where more than one physician and/or nurse
21 practitioner shares such responsibility, any such physician or nurse
22 practitioner may act as the attending physician or attending nurse prac-
23 titioner pursuant to this article.
24 2-a. "Attending nurse practitioner" means the nurse practitioner
25 selected by or assigned to a patient in a hospital who has primary
26 responsibility for the treatment and care of the patient. Where more
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13116-02-5
S. 6314 2
1 than one physician and/or nurse practitioner shares such responsibility,
2 any such physician or nurse practitioner may act as the attending physi-
3 cian or attending nurse practitioner pursuant to this article.
4 5. "Close friend" means any person, eighteen years of age or older,
5 who is a close friend of the patient, or relative of the patient (other
6 than a spouse, adult child, parent, brother or sister) who has main-
7 tained such regular contact with the patient as to be familiar with the
8 patient's activities, health, and religious or moral beliefs and who
9 presents a signed statement to that effect to the attending physician or
10 attending nurse practitioner.
11 16. "Nurse practitioner" means a nurse practitioner certified pursuant
12 to section sixty-nine hundred ten of the education law who is practicing
13 in accordance with subdivision three of section sixty-nine hundred two
14 of the education law.
15 20. "Reasonably available" means that a person to be contacted can be
16 contacted with diligent efforts by an attending physician, attending
17 nurse practitioner or another person acting on behalf of the attending
18 physician, attending nurse practitioner or the hospital.
19 § 3. Subdivisions 2 and 3 of section 2962 of the public health law, as
20 added by chapter 818 of the laws of 1987, are amended to read as
21 follows:
22 2. It shall be lawful for the attending physician or attending nurse
23 practitioner to issue an order not to resuscitate a patient, provided
24 that the order has been issued pursuant to the requirements of this
25 article. The order shall be included in writing in the patient's chart.
26 An order not to resuscitate shall be effective upon issuance.
27 3. Before obtaining, pursuant to this article, the consent of the
28 patient, or of the surrogate of the patient, or parent or legal guardian
29 of the minor patient, to an order not to resuscitate, the attending
30 physician or attending nurse practitioner shall provide to the person
31 giving consent information about the patient's diagnosis and prognosis,
32 the reasonably foreseeable risks and benefits of cardiopulmonary resus-
33 citation for the patient, and the consequences of an order not to resus-
34 citate.
35 § 4. Section 2963 of the public health law, as added by chapter 818 of
36 the laws of 1987, subdivision 1, paragraph (b) of subdivision 3 and
37 subdivision 4 as amended by chapter 8 of the laws of 2010, paragraph (c)
38 of subdivision 3 as amended by section 5 of part J of chapter 56 of the
39 laws of 2012, is amended to read as follows:
40 § 2963. Determination of capacity to make a decision regarding
41 cardiopulmonary resuscitation. 1. Every adult shall be presumed to have
42 the capacity to make a decision regarding cardiopulmonary resuscitation
43 unless determined otherwise pursuant to this section or pursuant to a
44 court order or unless a guardian is authorized to decide about health
45 care for the adult pursuant to article eighty-one of the mental hygiene
46 law or article seventeen-A of the surrogate's court procedure act. The
47 attending physician or attending nurse practitioner shall not rely on
48 the presumption stated in this subdivision if clinical indicia of inca-
49 pacity are present.
50 2. A determination that an adult patient lacks capacity shall be made
51 by the attending physician or attending nurse practitioner to a reason-
52 able degree of medical certainty. The determination shall be made in
53 writing and shall contain such attending physician's or attending nurse
54 practitioner's opinion regarding the cause and nature of the patient's
55 incapacity as well as its extent and probable duration. The determi-
56 nation shall be included in the patient's medical chart.
S. 6314 3
1 3. (a) At least one other physician, selected by a person authorized
2 by the hospital to make such selection, must concur in the determination
3 that an adult lacks capacity. The concurring determination shall be made
4 in writing after personal examination of the patient and shall contain
5 the physician's opinion regarding the cause and nature of the patient's
6 incapacity as well as its extent and probable duration. Each concurring
7 determination shall be included in the patient's medical chart.
8 (b) If the attending physician or attending nurse practitioner deter-
9 mines that a patient lacks capacity because of mental illness, the
10 concurring determination required by paragraph (a) of this subdivision
11 shall be provided by a physician licensed to practice medicine in New
12 York state, who is a diplomate or eligible to be certified by the Ameri-
13 can Board of Psychiatry and Neurology or who is certified by the Ameri-
14 can Osteopathic Board of Neurology and Psychiatry or is eligible to be
15 certified by that board.
16 (c) If the attending physician or attending nurse practitioner deter-
17 mines that a patient lacks capacity because of a developmental disabili-
18 ty, the concurring determination required by paragraph (a) of this
19 subdivision shall be provided by a physician or psychologist employed by
20 a developmental disabilities services office named in section 13.17 of
21 the mental hygiene law, or who has been employed for a minimum of two
22 years to render care and service in a facility operated or licensed by
23 the office for people with developmental disabilities, or who has been
24 approved by the commissioner of developmental disabilities in accordance
25 with regulations promulgated by such commissioner. Such regulations
26 shall require that a physician or psychologist possess specialized
27 training or three years experience in treating developmental disabili-
28 ties.
29 4. Notice of a determination that the patient lacks capacity shall
30 promptly be given (a) to the patient, where there is any indication of
31 the patient's ability to comprehend such notice, together with a copy of
32 a statement prepared in accordance with section twenty-nine hundred
33 seventy-eight of this article, and (b) to the person on the surrogate
34 list highest in order of priority listed, when persons in prior subpara-
35 graphs are not reasonably available. Nothing in this subdivision shall
36 preclude or require notice to more than one person on the surrogate
37 list.
38 5. A determination that a patient lacks capacity to make a decision
39 regarding an order not to resuscitate pursuant to this section shall not
40 be construed as a finding that the patient lacks capacity for any other
41 purpose.
42 § 5. Subdivision 2 of section 2964 of the public health law, as added
43 by chapter 818 of the laws of 1987, is amended to read as follows:
44 2. (a) During hospitalization, an adult with capacity may express a
45 decision consenting to an order not to resuscitate orally in the pres-
46 ence of at least two witnesses eighteen years of age or older, one of
47 whom is a physician or nurse practitioner affiliated with the hospital
48 in which the patient is being treated. Any such decision shall be
49 recorded in the patient's medical chart.
50 (b) Prior to or during hospitalization, an adult with capacity may
51 express a decision consenting to an order not to resuscitate in writing,
52 dated and signed in the presence of at least two witnesses eighteen
53 years of age or older who shall sign the decision.
54 (c) An attending physician or attending nurse practitioner who is
55 provided with or informed of a decision pursuant to this subdivision
S. 6314 4
1 shall record or include the decision in the patient's medical chart if
2 the decision has not been recorded or included, and either:
3 (i) promptly issue an order not to resuscitate the patient or issue an
4 order at such time as the conditions, if any, specified in the decision
5 are met, and inform the hospital staff responsible for the patient's
6 care of the order; or
7 (ii) promptly make his or her objection to the issuance of such an
8 order and the reasons therefor known to the patient and either make all
9 reasonable efforts to arrange for the transfer of the patient to another
10 physician or nurse practitioner, if necessary, or promptly submit the
11 matter to the dispute mediation system.
12 (d) Prior to issuing an order not to resuscitate a patient who has
13 expressed a decision consenting to an order not to resuscitate under
14 specified medical conditions, the attending physician or attending nurse
15 practitioner must make a determination, to a reasonable degree of
16 medical certainty, that such conditions exist, and include the determi-
17 nation in the patient's medical chart.
18 § 6. Subdivision 5 of section 2964 of the public health law is renum-
19 bered subdivision 3.
20 § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
21 added by chapter 818 of the laws of 1987 and as renumbered by chapter
22 370 of the laws of 1991, paragraph (a) of subdivision 4 as amended by
23 chapter 370 of the laws of 1991 and paragraph (c) of subdivision 4 as
24 amended by chapter 8 of the laws of 2010, are amended to read as
25 follows:
26 3. (a) The surrogate shall make a decision regarding cardiopulmonary
27 resuscitation on the basis of the adult patient's wishes including a
28 consideration of the patient's religious and moral beliefs, or, if the
29 patient's wishes are unknown and cannot be ascertained, on the basis of
30 the patient's best interests.
31 (b) Notwithstanding any law to the contrary, the surrogate shall have
32 the same right as the patient to receive medical information and medical
33 records.
34 (c) A surrogate may consent to an order not to resuscitate on behalf
35 of an adult patient only if there has been a determination by an attend-
36 ing physician or attending nurse practitioner with the concurrence of
37 another physician or nurse practitioner selected by a person authorized
38 by the hospital to make such selection, given after personal examination
39 of the patient that, to a reasonable degree of medical certainty:
40 (i) the patient has a terminal condition; or
41 (ii) the patient is permanently unconscious; or
42 (iii) resuscitation would be medically futile; or
43 (iv) resuscitation would impose an extraordinary burden on the patient
44 in light of the patient's medical condition and the expected outcome of
45 resuscitation for the patient.
46 Each determination shall be included in the patient's medical chart.
47 4. (a) A surrogate shall express a decision consenting to an order not
48 to resuscitate either (i) in writing, dated, and signed in the presence
49 of one witness eighteen years of age or older who shall sign the deci-
50 sion, or (ii) orally, to two persons eighteen years of age or older, one
51 of whom is a physician or nurse practitioner affiliated with the hospi-
52 tal in which the patient is being treated. Any such decision shall be
53 recorded in the patient's medical chart.
54 (b) The attending physician or attending nurse practitioner who is
55 provided with the decision of a surrogate shall include the decision in
S. 6314 5
1 the patient's medical chart and, if the surrogate has consented to the
2 issuance of an order not to resuscitate, shall either:
3 (i) promptly issue an order not to resuscitate the patient and inform
4 the hospital staff responsible for the patient's care of the order; or
5 (ii) promptly make the attending physician's or attending nurse prac-
6 titioner's objection to the issuance of such an order known to the
7 surrogate and either make all reasonable efforts to arrange for the
8 transfer of the patient to another physician or nurse practitioner, if
9 necessary, or promptly refer the matter to the dispute mediation system.
10 (c) If the attending physician or attending nurse practitioner has
11 actual notice of opposition to a surrogate's consent to an order not to
12 resuscitate by any person on the surrogate list, the physician or nurse
13 practitioner shall submit the matter to the dispute mediation system and
14 such order shall not be issued or shall be revoked in accordance with
15 the provisions of subdivision three of section twenty-nine hundred
16 seventy-two of this article.
17 § 8. Section 2966 of the public health law, as added by chapter 818 of
18 the laws of 1987, subdivision 3 as amended by chapter 8 of the laws of
19 2010, is amended to read as follows:
20 § 2966. Decision-making on behalf of an adult patient without capacity
21 for whom no surrogate is available. 1. If no surrogate is reasonably
22 available, willing to make a decision regarding issuance of an order not
23 to resuscitate, and competent to make a decision regarding issuance of
24 an order not to resuscitate on behalf of an adult patient who lacks
25 capacity and who had not previously expressed a decision regarding
26 cardiopulmonary resuscitation, an attending physician or attending nurse
27 practitioner (a) may issue an order not to resuscitate the patient,
28 provided that the attending physician or attending nurse practitioner
29 determines, in writing, that, to a reasonable degree of medical certain-
30 ty, resuscitation would be medically futile, and another physician or
31 nurse practitioner selected by a person authorized by the hospital to
32 make such selection, after personal examination of the patient, reviews
33 and concurs in writing with such determination, or, (b) shall issue an
34 order not to resuscitate the patient, provided that, pursuant to subdi-
35 vision one of section twenty-nine hundred seventy-six of this article, a
36 court has granted a judgment directing the issuance of such an order.
37 [3] 2. Notwithstanding any other provision of this section, where a
38 decision to consent to an order not to resuscitate has been made, notice
39 of the decision shall be given to the patient where there is any indi-
40 cation of the patient's ability to comprehend such notice. If the
41 patient objects, an order not to resuscitate shall not be issued.
42 § 9. Section 2967 of the public health law, as added by chapter 818 of
43 the laws of 1987, paragraph (b) of subdivision 2, subdivision 3 and
44 paragraphs (a) and (b) of subdivision 4 as amended by chapter 370 of the
45 laws of 1991, is amended to read as follows:
46 § 2967. Decision-making on behalf of a minor patient. 1. An attending
47 physician or attending nurse practitioner, in consultation with a
48 minor's parent or legal guardian, shall determine whether a minor has
49 the capacity to make a decision regarding resuscitation.
50 2. (a) The consent of a minor's parent or legal guardian and the
51 consent of the minor, if the minor has capacity, must be obtained prior
52 to issuing an order not to resuscitate the minor.
53 (b) Where the attending physician or attending nurse practitioner has
54 reason to believe that there is another parent or a non-custodial parent
55 who has not been informed of a decision to issue an order not to resus-
56 citate the minor, the attending physician or attending nurse practition-
S. 6314 6
1 er, or someone acting on behalf of the attending physician or attending
2 nurse practitioner, shall make reasonable efforts to determine if the
3 uninformed parent or non-custodial parent has maintained substantial and
4 continuous contact with the minor and, if so, shall make diligent
5 efforts to notify that parent or non-custodial parent of the decision
6 prior to issuing the order.
7 3. A parent or legal guardian may consent to an order not to resusci-
8 tate on behalf of a minor only if there has been a written determination
9 by the attending physician or attending nurse practitioner, with the
10 written concurrence of another physician or nurse practitioner selected
11 by a person authorized by the hospital to make such selections given
12 after personal examination of the patient, that, to a reasonable degree
13 of medical certainty, the minor suffers from one of the medical condi-
14 tions set forth in paragraph (c) of subdivision three of section twen-
15 ty-nine hundred sixty-five of this article. Each determination shall be
16 included in the patient's medical chart.
17 4. (a) A parent or legal guardian of a minor, in making a decision
18 regarding cardiopulmonary resuscitation, shall consider the minor
19 patient's wishes, including a consideration of the minor patient's reli-
20 gious and moral beliefs, and shall express a decision consenting to
21 issuance of an order not to resuscitate either (i) in writing, dated and
22 signed in the presence of one witness eighteen years of age or older who
23 shall sign the decision, or (ii) orally, to two persons eighteen years
24 of age or older, one of whom is a physician or nurse practitioner affil-
25 iated with the hospital in which the patient is being treated. Any such
26 decision shall be recorded in the patient's medical chart.
27 (b) The attending physician or attending nurse practitioner who is
28 provided with the decision of a minor's parent or legal guardian,
29 expressed pursuant to this subdivision, and of the minor if the minor
30 has capacity, shall include such decision or decisions in the minor's
31 medical chart and shall comply with the provisions of paragraph (b) of
32 subdivision four of section twenty-nine hundred sixty-five of this arti-
33 cle.
34 (c) If the attending physician or attending nurse practitioner has
35 actual notice of the opposition of a parent or non-custodial parent to
36 consent by another parent to an order not to resuscitate a minor, the
37 physician or nurse practitioner shall submit the matter to the dispute
38 mediation system and such order shall not be issued or shall be revoked
39 in accordance with the provisions of subdivision three of section twen-
40 ty-nine hundred seventy-two of this article.
41 § 10. Section 2969 of the public health law, as added by chapter 818
42 of the laws of 1987, subdivision 2 as amended by chapter 370 of the laws
43 of 1991, is amended to read as follows:
44 § 2969. Revocation of consent to order not to resuscitate. 1. A person
45 may, at any time, revoke his or her consent to an order not to resusci-
46 tate himself or herself by making either a written or an oral declara-
47 tion to a physician or member of the nursing staff at the hospital where
48 he or she is being treated, or by any other act evidencing a specific
49 intent to revoke such consent.
50 2. Any surrogate, parent, or legal guardian may at any time revoke his
51 or her consent to an order not to resuscitate a patient by (a) notifying
52 a physician or member of the nursing staff of the revocation of consent
53 in writing, dated and signed, or (b) orally notifying the attending
54 physician or attending nurse practitioner in the presence of a witness
55 eighteen years of age or older.
S. 6314 7
1 3. Any physician or nurse practitioner who is informed of or provided
2 with a revocation of consent pursuant to this section shall immediately
3 include the revocation in the patient's chart, cancel the order, and
4 notify the hospital staff responsible for the patient's care of the
5 revocation and cancellation. Any member of the nursing staff, other than
6 a nurse practitioner, who is informed of or provided with a revocation
7 of consent pursuant to this section shall immediately notify a physician
8 or nurse practitioner of such revocation.
9 § 11. Section 2970 of the public health law, as added by chapter 818
10 of the laws of 1987, subdivision 1 as amended by chapter 8 of the laws
11 of 2010, paragraph (b) of subdivision 2 as amended by chapter 370 of the
12 laws of 1991, is amended to read as follows:
13 § 2970. Physician and nurse practitioner review of the order not to
14 resuscitate. 1. For each patient for whom an order not to resuscitate
15 has been issued, the attending physician or attending nurse practitioner
16 shall review the patient's chart to determine if the order is still
17 appropriate in light of the patient's condition and shall indicate on
18 the patient's chart that the order has been reviewed each time the
19 patient is required to be seen by a physician but at least every sixty
20 days.
21 Failure to comply with this subdivision shall not render an order not
22 to resuscitate ineffective.
23 2. (a) If the attending physician or attending nurse practitioner
24 determines at any time that an order not to resuscitate is no longer
25 appropriate because the patient's medical condition has improved, the
26 physician or nurse practitioner shall immediately notify the person who
27 consented to the order. Except as provided in paragraph (b) of this
28 subdivision, if such person declines to revoke consent to the order, the
29 physician or nurse practitioner shall promptly (i) make reasonable
30 efforts to arrange for the transfer of the patient to another physician
31 or (ii) submit the matter to the dispute mediation system.
32 (b) If the order not to resuscitate was entered upon the consent of a
33 surrogate, parent, or legal guardian and the attending physician or
34 attending nurse practitioner who issued the order, or, if unavailable,
35 another attending physician or attending nurse practitioner at any time
36 determines that the patient does not suffer from one of the medical
37 conditions set forth in paragraph (c) of subdivision three of section
38 twenty-nine hundred sixty-five of this article, the attending physician
39 or attending nurse practitioner shall immediately include such determi-
40 nation in the patient's chart, cancel the order, and notify the person
41 who consented to the order and all hospital staff responsible for the
42 patient's care of the cancellation.
43 (c) If an order not to resuscitate was entered upon the consent of a
44 surrogate and the patient at any time gains or regains capacity, the
45 attending physician or attending nurse practitioner who issued the
46 order, or, if unavailable, another attending physician or attending
47 nurse practitioner shall immediately cancel the order and notify the
48 person who consented to the order and all hospital staff directly
49 responsible for the patient's care of the cancellation.
50 § 12. The opening paragraph and subdivision 2 of section 2971 of the
51 public health law, as amended by chapter 370 of the laws of 1991, are
52 amended to read as follows:
53 If a patient for whom an order not to resuscitate has been issued is
54 transferred from a hospital to a different hospital the order shall
55 remain effective, unless revoked pursuant to this article, until the
56 attending physician or attending nurse practitioner first examines the
S. 6314 8
1 transferred patient, whereupon the attending physician or attending
2 nurse practitioner must either:
3 2. Cancel the order not to resuscitate, provided the attending physi-
4 cian or attending nurse practitioner immediately notifies the person who
5 consented to the order and the hospital staff directly responsible for
6 the patient's care of the cancellation. Such cancellation does not
7 preclude the entry of a new order pursuant to this article.
8 § 13. Subdivisions 1, 2 and 4 of section 2972 of the public health
9 law, subdivisions 1 and 4 as added by chapter 818 of the laws of 1987,
10 paragraph (b) of subdivision 1 as amended by chapter 370 of the laws of
11 1991 and subdivision 2 as amended by chapter 8 of the laws of 2010, are
12 amended to read as follows:
13 1. (a) Each hospital shall establish a mediation system for the
14 purpose of mediating disputes regarding the issuance of orders not to
15 resuscitate.
16 (b) The dispute mediation system shall be described in writing and
17 adopted by the hospital's governing authority. It may utilize existing
18 hospital resources, such as a patient advocate's office or hospital
19 chaplain's office, or it may utilize a body created specifically for
20 this purpose, but, in the event a dispute involves a patient deemed to
21 lack capacity pursuant to (i) paragraph (b) of subdivision three of
22 section twenty-nine hundred sixty-three of this article, the system must
23 include a physician or nurse practitioner eligible to provide a concur-
24 ring determination pursuant to such subdivision, or a family member or
25 guardian of the person of a person with a mental illness of the same or
26 similar nature, or (ii) paragraph (c) of subdivision three of section
27 twenty-nine hundred sixty-three of this article, the system must include
28 a physician or nurse practitioner eligible to provide a concurring
29 determination pursuant to such subdivision, or a family member or guard-
30 ian of the person of a person with a developmental disability of the
31 same or similar nature.
32 2. The dispute mediation system shall be authorized to mediate any
33 dispute, including disputes regarding the determination of the patient's
34 capacity, arising under this article between the patient and an attend-
35 ing physician, attending nurse practitioner or the hospital that is
36 caring for the patient and, if the patient is a minor, the patient's
37 parent, or among an attending physician, an attending nurse
38 practitioner, a parent, non-custodial parent, or legal guardian of a
39 minor patient, any person on the surrogate list, and the hospital that
40 is caring for the patient.
41 4. If a dispute between a patient who expressed a decision rejecting
42 cardiopulmonary resuscitation and an attending physician, attending
43 nurse practitioner or the hospital that is caring for the patient is
44 submitted to the dispute mediation system, and either:
45 (a) the dispute mediation system has concluded its efforts to resolve
46 the dispute, or
47 (b) seventy-two hours have elapsed from the time of submission without
48 resolution of the dispute, whichever shall occur first, the attending
49 physician or attending nurse practitioner shall either: (i) promptly
50 issue an order not to resuscitate the patient or issue the order at such
51 time as the conditions, if any, specified in the decision are met, and
52 inform the hospital staff responsible for the patient's care of the
53 order; or (ii) promptly arrange for the transfer of the patient to
54 another physician, nurse practitioner or hospital.
55 § 14. Subdivision 1 of section 2973 of the public health law, as
56 amended by chapter 8 of the laws of 2010, is amended to read as follows:
S. 6314 9
1 1. The patient, an attending physician, attending nurse practitioner,
2 a parent, non-custodial parent, or legal guardian of a minor patient,
3 any person on the surrogate list, the hospital that is caring for the
4 patient and the facility director, may commence a special proceeding
5 pursuant to article four of the civil practice law and rules, in a court
6 of competent jurisdiction, with respect to any dispute arising under
7 this article, except that the decision of a patient not to consent to
8 issuance of an order not to resuscitate may not be subjected to judicial
9 review. In any proceeding brought pursuant to this subdivision challeng-
10 ing a decision regarding issuance of an order not to resuscitate on the
11 ground that the decision is contrary to the patient's wishes or best
12 interests, the person or entity challenging the decision must show, by
13 clear and convincing evidence, that the decision is contrary to the
14 patient's wishes including consideration of the patient's religious and
15 moral beliefs, or, in the absence of evidence of the patient's wishes,
16 that the decision is contrary to the patient's best interests. In any
17 other proceeding brought pursuant to this subdivision, the court shall
18 make its determination based upon the applicable substantive standards
19 and procedures set forth in this article.
20 § 15. Section 2976 of the public health law, as added by chapter 818
21 of the laws of 1987, is amended to read as follows:
22 § 2976. Judicially approved order not to resuscitate. 1. If no surro-
23 gate is reasonably available, willing to make a decision regarding issu-
24 ance of an order not to resuscitate, and competent to make a decision
25 regarding issuance of an order not to resuscitate on behalf of an adult
26 patient who lacks capacity and who had not previously expressed a deci-
27 sion regarding cardiopulmonary resuscitation pursuant to this article,
28 an attending physician or attending nurse practitioner or hospital may
29 commence a special proceeding pursuant to article four of the civil
30 practice law and rules, in a court of competent jurisdiction, for a
31 judgment directing the physician or nurse practitioner to issue an order
32 not to resuscitate where the patient has a terminal condition, is perma-
33 nently unconscious, or resuscitation would impose an extraordinary
34 burden on the patient in light of the patient's medical condition and
35 the expected outcome of resuscitation for the patient, and issuance of
36 an order not to resuscitate is consistent with the patient's wishes
37 including a consideration of the patient's religious and moral beliefs
38 or, in the absence of evidence of the patient's wishes, the patient's
39 best interests.
40 2. Nothing in this article shall be construed to preclude a court of
41 competent jurisdiction from approving the issuance of an order not to
42 resuscitate under circumstances other than those under which such an
43 order may be issued pursuant to this article.
44 § 16. Subdivisions 2 and 4 of section 2994-a of the public health law,
45 as added by chapter 8 of the laws of 2010, are amended and two new
46 subdivisions 2-a and 22-a are added to read as follows:
47 2. "Attending physician" means a physician, selected by or assigned to
48 a patient pursuant to hospital policy, who has primary responsibility
49 for the treatment and care of the patient. Where more than one physician
50 and/or nurse practitioner shares such responsibility, or where a physi-
51 cian or nurse practitioner is acting on the attending physician's or
52 attending nurse practitioner's behalf, any such physician or nurse prac-
53 titioner may act as an attending physician or attending nurse practi-
54 tioner pursuant to this article.
55 2-a. "Attending nurse practitioner" means a nurse practitioner,
56 selected by or assigned to a patient pursuant to hospital policy, who
S. 6314 10
1 has primary responsibility for the treatment and care of the patient.
2 Where more than one physician and/or nurse practitioner shares such
3 responsibility, or where a physician or nurse practitioner is acting on
4 the attending physician's or attending nurse practitioner's behalf, any
5 such physician or nurse practitioner may act as an attending physician
6 or attending nurse practitioner pursuant to this article.
7 4. "Close friend" means any person, eighteen years of age or older,
8 who is a close friend of the patient, or a relative of the patient
9 (other than a spouse, adult child, parent, brother or sister), who has
10 maintained such regular contact with the patient as to be familiar with
11 the patient's activities, health, and religious or moral beliefs, and
12 who presents a signed statement to that effect to the attending physi-
13 cian or attending nurse practitioner.
14 22-a. "Nurse practitioner" means a nurse practitioner certified pursu-
15 ant to section sixty-nine hundred ten of the education law who is prac-
16 ticing in accordance with subdivision three of section sixty-nine
17 hundred two of the education law.
18 § 17. Subdivisions 2 and 3 of section 2994-b of the public health law,
19 as added by chapter 8 of the laws of 2010, are amended to read as
20 follows:
21 2. Prior to seeking or relying upon a health care decision by a surro-
22 gate for a patient under this article, the attending physician or
23 attending nurse practitioner shall make reasonable efforts to determine
24 whether the patient has a health care agent appointed pursuant to arti-
25 cle twenty-nine-C of this chapter. If so, health care decisions for the
26 patient shall be governed by such article, and shall have priority over
27 decisions by any other person except the patient or as otherwise
28 provided in the health care proxy.
29 3. Prior to seeking or relying upon a health care decision by a surro-
30 gate for a patient under this article, if the attending physician or
31 attending nurse practitioner has reason to believe that the patient has
32 a history of receiving services for mental retardation or a develop-
33 mental disability; it reasonably appears to the attending physician or
34 attending nurse practitioner that the patient has mental retardation or
35 a developmental disability; or the attending physician or attending
36 nurse practitioner has reason to believe that the patient has been
37 transferred from a mental hygiene facility operated or licensed by the
38 office of mental health, then such physician or nurse practitioner shall
39 make reasonable efforts to determine whether paragraphs (a), (b) or (c)
40 of this subdivision are applicable:
41 (a) If the patient has a guardian appointed by a court pursuant to
42 article seventeen-A of the surrogate's court procedure act, health care
43 decisions for the patient shall be governed by section seventeen hundred
44 fifty-b of the surrogate's court [proceedure] procedure act and not by
45 this article.
46 (b) If a patient does not have a guardian appointed by a court pursu-
47 ant to article seventeen-A of the surrogate's court procedure act but
48 falls within the class of persons described in paragraph (a) of subdivi-
49 sion one of section seventeen hundred fifty-b of such act, decisions to
50 withdraw or withhold life-sustaining treatment for the patient shall be
51 governed by section seventeen hundred fifty-b of the surrogate's court
52 procedure act and not by this article.
53 (c) If a health care decision for a patient cannot be made under para-
54 graphs (a) or (b) of this subdivision, but consent for the decision may
55 be provided pursuant to the mental hygiene law or regulations of the
56 office of mental health or the office [of mental retardation and] for
S. 6314 11
1 people with developmental disabilities, then the decision shall be
2 governed by such statute or regulations and not by this article.
3 § 18. Subdivisions 2, 3 and 7 of section 2994-c of the public health
4 law, as added by chapter 8 of the laws of 2010, paragraph (b) of subdi-
5 vision 3 as amended by chapter 167 of the laws of 2011 and subparagraph
6 (ii) of paragraph (c) of subdivision 3 as amended by section 8 of part J
7 of chapter 56 of the laws of 2012, are amended to read as follows:
8 2. Initial determination by attending physician or attending nurse
9 practitioner. An attending physician or attending nurse practitioner
10 shall make an initial determination that an adult patient lacks deci-
11 sion-making capacity to a reasonable degree of medical certainty. Such
12 determination shall include an assessment of the cause and extent of the
13 patient's incapacity and the likelihood that the patient will regain
14 decision-making capacity.
15 3. Concurring determinations. (a) An initial determination that a
16 patient lacks decision-making capacity shall be subject to a concurring
17 determination, independently made, where required by this subdivision. A
18 concurring determination shall include an assessment of the cause and
19 extent of the patient's incapacity and the likelihood that the patient
20 will regain decision-making capacity, and shall be included in the
21 patient's medical record. Hospitals shall adopt written policies identi-
22 fying the training and credentials of health or social services practi-
23 tioners qualified to provide concurring determinations of incapacity.
24 (b) (i) In a residential health care facility, a health or social
25 services practitioner employed by or otherwise formally affiliated with
26 the facility must independently determine whether an adult patient lacks
27 decision-making capacity.
28 (ii) In a general hospital a health or social services practitioner
29 employed by or otherwise formally affiliated with the facility must
30 independently determine whether an adult patient lacks decision-making
31 capacity if the surrogate's decision concerns the withdrawal or with-
32 holding of life-sustaining treatment.
33 (iii) With respect to decisions regarding hospice care for a patient
34 in a general hospital or residential health care facility, the health or
35 social services practitioner must be employed by or otherwise formally
36 affiliated with the general hospital or residential health care facili-
37 ty.
38 (c) (i) If the attending physician or attending nurse practitioner
39 makes an initial determination that a patient lacks decision-making
40 capacity because of mental illness, either such physician must have the
41 following qualifications, or another physician with the following quali-
42 fications must independently determine whether the patient lacks deci-
43 sion-making capacity: a physician licensed to practice medicine in New
44 York state, who is a diplomate or eligible to be certified by the Ameri-
45 can Board of Psychiatry and Neurology or who is certified by the Ameri-
46 can Osteopathic Board of Neurology and Psychiatry or is eligible to be
47 certified by that board. A record of such consultation shall be included
48 in the patient's medical record.
49 (ii) If the attending physician or attending nurse practitioner makes
50 an initial determination that a patient lacks decision-making capacity
51 because of a developmental disability, either such physician or nurse
52 practitioner must have the following qualifications, or another profes-
53 sional with the following qualifications must independently determine
54 whether the patient lacks decision-making capacity: a physician or clin-
55 ical psychologist who either is employed by a developmental disabilities
56 services office named in section 13.17 of the mental hygiene law, or who
S. 6314 12
1 has been employed for a minimum of two years to render care and service
2 in a facility operated or licensed by the office for people with devel-
3 opmental disabilities, or has been approved by the commissioner of
4 developmental disabilities in accordance with regulations promulgated by
5 such commissioner. Such regulations shall require that a physician or
6 clinical psychologist possess specialized training or three years expe-
7 rience in treating developmental disabilities. A record of such consul-
8 tation shall be included in the patient's medical record.
9 (d) If an attending physician or attending nurse practitioner has
10 determined that the patient lacks decision-making capacity and if the
11 health or social services practitioner consulted for a concurring deter-
12 mination disagrees with the attending physician's or the attending nurse
13 practitioner's determination, the matter shall be referred to the ethics
14 review committee if it cannot otherwise be resolved.
15 7. Confirmation of continued lack of decision-making capacity. An
16 attending physician or attending nurse practitioner shall confirm the
17 adult patient's continued lack of decision-making capacity before
18 complying with health care decisions made pursuant to this article,
19 other than those decisions made at or about the time of the initial
20 determination. A concurring determination of the patient's continued
21 lack of decision-making capacity shall be required if the subsequent
22 health care decision concerns the withholding or withdrawal of life-sus-
23 taining treatment. Health care providers shall not be required to inform
24 the patient or surrogate of the confirmation.
25 § 19. Subdivisions 2, 3 and 5 of section 2994-d of the public health
26 law, as added by chapter 8 of the laws of 2010, the subdivision heading
27 and the opening paragraph of subdivision 5 as amended by chapter 167 of
28 the laws of 2011, are amended to read as follows:
29 2. Restrictions on who may be a surrogate. An operator, administrator,
30 or employee of a hospital or a mental hygiene facility from which the
31 patient was transferred, or a physician or nurse practitioner who has
32 privileges at the hospital or a health care provider under contract with
33 the hospital may not serve as the surrogate for any adult who is a
34 patient of such hospital, unless such individual is related to the
35 patient by blood, marriage, domestic partnership, or adoption, or is a
36 close friend of the patient whose friendship with the patient preceded
37 the patient's admission to the facility. If a physician or nurse practi-
38 tioner serves as surrogate, the physician or nurse practitioner shall
39 not act as the patient's attending physician or attending nurse practi-
40 tioner after his or her authority as surrogate begins.
41 3. Authority and duties of surrogate. (a) Scope of surrogate's author-
42 ity.
43 (i) Subject to the standards and limitations of this article, the
44 surrogate shall have the authority to make any and all health care deci-
45 sions on the adult patient's behalf that the patient could make.
46 (ii) Nothing in this article shall obligate health care providers to
47 seek the consent of a surrogate if an adult patient has already made a
48 decision about the proposed health care, expressed orally or in writing
49 or, with respect to a decision to withdraw or withhold life-sustaining
50 treatment expressed either orally during hospitalization in the presence
51 of two witnesses eighteen years of age or older, at least one of whom is
52 a health or social services practitioner affiliated with the hospital,
53 or in writing. If an attending physician or attending nurse practitioner
54 relies on the patient's prior decision, the physician or nurse practi-
55 tioner shall record the prior decision in the patient's medical record.
56 If a surrogate has already been designated for the patient, the attend-
S. 6314 13
1 ing physician or attending nurse practitioner shall make reasonable
2 efforts to notify the surrogate prior to implementing the decision;
3 provided that in the case of a decision to withdraw or withhold life-
4 sustaining treatment, the attending physician or attending nurse practi-
5 tioner shall make diligent efforts to notify the surrogate and, if
6 unable to notify the surrogate, shall document the efforts that were
7 made to do so.
8 (b) Commencement of surrogate's authority. The surrogate's authority
9 shall commence upon a determination, made pursuant to section twenty-
10 nine hundred ninety-four-c of this article, that the adult patient lacks
11 decision-making capacity and upon identification of a surrogate pursuant
12 to subdivision one of this section. In the event an attending physician
13 or nurse practitioner determines that the patient has regained deci-
14 sion-making capacity, the authority of the surrogate shall cease.
15 (c) Right and duty to be informed. Notwithstanding any law to the
16 contrary, the surrogate shall have the right to receive medical informa-
17 tion and medical records necessary to make informed decisions about the
18 patient's health care. Health care providers shall provide and the
19 surrogate shall seek information necessary to make an informed decision,
20 including information about the patient's diagnosis, prognosis, the
21 nature and consequences of proposed health care, and the benefits and
22 risks of and alternative to proposed health care.
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 (including decisions to accept a hospice plan of care that provides
27 for the withdrawal or withholding of life-sustaining treatment) shall be
28 authorized only if the following conditions are satisfied, as applica-
29 ble:
30 (a)(i) Treatment would be an extraordinary burden to the patient and
31 an attending physician or attending nurse practitioner determines, with
32 the independent concurrence of another physician or nurse practitioner,
33 that, to a reasonable degree of medical certainty and in accord with
34 accepted medical standards, (A) the patient has an illness or injury
35 which can be expected to cause death within six months, whether or not
36 treatment is provided; or (B) the patient is permanently unconscious; or
37 (ii) The provision of treatment would involve such pain, suffering or
38 other burden that it would reasonably be deemed inhumane or extraor-
39 dinarily burdensome under the circumstances and the patient has an irre-
40 versible or incurable condition, as determined by an attending physician
41 or attending nurse practitioner with the independent concurrence of
42 another physician or nurse practitioner to a reasonable degree of
43 medical certainty and in accord with accepted medical standards.
44 (b) In a residential health care facility, a surrogate shall have the
45 authority to refuse life-sustaining treatment under subparagraph (ii) of
46 paragraph (a) of this subdivision only if the ethics review committee,
47 including at least one physician or nurse practitioner who is not
48 directly responsible for the patient's care, or a court of competent
49 jurisdiction, reviews the decision and determines that it meets the
50 standards set forth in this article. This requirement shall not apply to
51 a decision to withhold cardiopulmonary resuscitation.
52 (c) In a general hospital, if the attending physician or attending
53 nurse practitioner objects to a surrogate's decision, under subparagraph
54 (ii) of paragraph (a) of this subdivision, to withdraw or withhold
55 nutrition and hydration provided by means of medical treatment, the
56 decision shall not be implemented until the ethics review committee,
S. 6314 14
1 including at least one physician or nurse practitioner who is not
2 directly responsible for the patient's care, or a court of competent
3 jurisdiction, reviews the decision and determines that it meets the
4 standards set forth in this subdivision and subdivision four of this
5 section.
6 (d) Providing nutrition and hydration orally, without reliance on
7 medical treatment, is not health care under this article and is not
8 subject to this article.
9 (e) Expression of decisions. The surrogate shall express a decision to
10 withdraw or withhold life-sustaining treatment either orally to an
11 attending physician or attending nurse practitioner or in writing.
12 § 20. Subdivisions 2 and 3 of section 2994-e of the public health law,
13 as added by chapter 8 of the laws of 2010, are amended to read as
14 follows:
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 or attending nurse practitioner, in consul-
22 tation with a minor's parent or guardian, shall determine whether a
23 minor patient has decision-making capacity for a decision to withhold or
24 withdraw life-sustaining treatment. If the minor has such capacity, a
25 parent's or guardian's decision to withhold or withdraw life-sustaining
26 treatment for the minor may not be implemented without the minor's
27 consent.
28 (c) Where a parent or guardian of a minor patient has made a decision
29 to withhold or withdraw life-sustaining treatment and an attending
30 physician or attending nurse practitioner has reason to believe that the
31 minor patient has a parent or guardian who has not been informed of the
32 decision, including a non-custodial parent or guardian, an attending
33 physician,attending nurse practitioner or someone acting on his or her
34 behalf, shall make reasonable efforts to determine if the uninformed
35 parent or guardian has maintained substantial and continuous contact
36 with the minor and, if so, shall make diligent efforts to notify that
37 parent or guardian prior to implementing the decision.
38 3. Decision-making standards and procedures for emancipated minor
39 patient. (a) If an attending physician or attending nurse practitioner
40 determines that a patient is an emancipated minor patient with deci-
41 sion-making capacity, the patient shall have the authority to decide
42 about life-sustaining treatment. Such authority shall include a decision
43 to withhold or withdraw life-sustaining treatment if an attending physi-
44 cian or attending nurse practitioner and the ethics review committee
45 determine that the decision accords with the standards for surrogate
46 decisions for adults, and the ethics review committee approves the deci-
47 sion.
48 (b) If the hospital can with reasonable efforts ascertain the identity
49 of the parents or guardian of an emancipated minor patient, the hospital
50 shall notify such persons prior to withholding or withdrawing life-sus-
51 taining treatment pursuant to this subdivision.
52 § 21. Section 2994-f of the public health law, as added by chapter 8
53 of the laws of 2010, is amended to read as follows:
54 § 2994-f. Obligations of attending physician or attending nurse prac-
55 titioner. 1. An attending physician or attending nurse practitioner
56 informed of a decision to withdraw or withhold life-sustaining treatment
S. 6314 15
1 made pursuant to the standards of this article shall record the decision
2 in the patient's medical record, review the medical basis for the deci-
3 sion, and shall either: (a) implement the decision, or (b) promptly make
4 his or her objection to the decision and the reasons for the objection
5 known to the decision-maker, and either make all reasonable efforts to
6 arrange for the transfer of the patient to another physician or nurse
7 practitioner, if necessary, or promptly refer the matter to the ethics
8 review committee.
9 2. If an attending physician or attending nurse practitioner has actu-
10 al notice of the following objections or disagreements, he or she shall
11 promptly refer the matter to the ethics review committee if the
12 objection or disagreement cannot otherwise be resolved:
13 (a) A health or social services practitioner consulted for a concur-
14 ring determination that an adult patient lacks decision-making capacity
15 disagrees with the attending physician's or attending nurse practition-
16 er's determination; or
17 (b) Any person on the surrogate list objects to the designation of the
18 surrogate pursuant to subdivision one of section twenty-nine hundred
19 ninety-four-d of this article; or
20 (c) Any person on the surrogate list objects to a surrogate's deci-
21 sion; or
22 (d) A parent or guardian of a minor patient objects to the decision by
23 another parent or guardian of the minor; or
24 (e) A minor patient refuses life-sustaining treatment, and the minor's
25 parent or guardian wishes the treatment to be provided, or the minor
26 patient objects to an attending physician's or attending nurse practi-
27 tioner's determination about decision-making capacity or recommendation
28 about life-sustaining treatment.
29 3. Notwithstanding the provisions of this section or subdivision one
30 of section twenty-nine hundred ninety-four-q of this article, if a
31 surrogate directs the provision of life-sustaining treatment, the denial
32 of which in reasonable medical judgment would be likely to result in the
33 death of the patient, a hospital or individual health care provider that
34 does not wish to provide such treatment shall nonetheless comply with
35 the surrogate's decision pending either transfer of the patient to a
36 willing hospital or individual health care provider, or judicial review
37 in accordance with section twenty-nine hundred ninety-four-r of this
38 article.
39 § 22. Subdivisions 3,4,5, 5-a and 6 of section 2994-g of the public
40 health law, subdivisions 3, 4, 5 and 6 as added by chapter 8 of the laws
41 of 2010, subparagraph (iii) of paragraph (b) of subdivision 4 as amended
42 by chapter 167 of the laws of 2011 and subdivision 5-a as added by chap-
43 ter 107 of the laws of 2015, are amended to read as follows:
44 3. Routine medical treatment. (a) For purposes of this subdivision,
45 "routine medical treatment" means any treatment, service, or procedure
46 to diagnose or treat an individual's physical or mental condition, such
47 as the administration of medication, the extraction of bodily fluids for
48 analysis, or dental care performed with a local anesthetic, for which
49 health care providers ordinarily do not seek specific consent from the
50 patient or authorized representative. It shall not include the long-term
51 provision of treatment such as ventilator support or a nasogastric tube
52 but shall include such treatment when provided as part of post-operative
53 care or in response to an acute illness and recovery is reasonably
54 expected within one month or less.
55 (b) An attending physician or attending nurse practitioner shall be
56 authorized to decide about routine medical treatment for an adult
S. 6314 16
1 patient who has been determined to lack decision-making capacity pursu-
2 ant to section twenty-nine hundred ninety-four-c of this article. Noth-
3 ing in this subdivision shall require health care providers to obtain
4 specific consent for treatment where specific consent is not otherwise
5 required by law.
6 4. Major medical treatment. (a) For purposes of this subdivision,
7 "major medical treatment" means any treatment, service or procedure to
8 diagnose or treat an individual's physical or mental condition: (i)
9 where general anesthetic is used; or (ii) which involves any significant
10 risk; or (iii) which involves any significant invasion of bodily integ-
11 rity requiring an incision, producing substantial pain, discomfort,
12 debilitation or having a significant recovery period; or (iv) which
13 involves the use of physical restraints, as specified in regulations
14 promulgated by the commissioner, except in an emergency; or (v) which
15 involves the use of psychoactive medications, except when provided as
16 part of post-operative care or in response to an acute illness and
17 treatment is reasonably expected to be administered over a period of
18 forty-eight hours or less, or when provided in an emergency.
19 (b) A decision to provide major medical treatment, made in accordance
20 with the following requirements, shall be authorized for an adult
21 patient who has been determined to lack decision-making capacity pursu-
22 ant to section twenty-nine hundred ninety-four-c of this article.
23 (i) An attending physician or attending nurse practitioner shall make
24 a recommendation in consultation with hospital staff directly responsi-
25 ble for the patient's care.
26 (ii) In a general hospital, at least one other physician or nurse
27 practitioner designated by the hospital must independently determine
28 that he or she concurs that the recommendation is appropriate.
29 (iii) In a residential health care facility, and for a hospice patient
30 not in a general hospital, the medical director of the facility or
31 hospice, or a physician or nurse practitioner designated by the medical
32 director, must independently determine that he or she concurs that the
33 recommendation is appropriate; provided that if the medical director is
34 the patient's attending physician or attending nurse practitioner, a
35 different physician or nurse practitioner designated by the residential
36 health care facility or hospice must make this independent determi-
37 nation. Any health or social services practitioner employed by or other-
38 wise formally affiliated with the facility or hospice may provide a
39 second opinion for decisions about physical restraints made pursuant to
40 this subdivision.
41 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A
42 court of competent jurisdiction may make a decision to withhold or with-
43 draw life-sustaining treatment for an adult patient who has been deter-
44 mined to lack decision-making capacity pursuant to section twenty-nine
45 hundred ninety-four-c of this article if the court finds that the deci-
46 sion accords with standards for decisions for adults set forth in subdi-
47 visions four and five of section twenty-nine hundred ninety-four-d of
48 this article.
49 (b) If the attending physician or attending nurse practitioner, with
50 independent concurrence of a second physician or nurse practitioner
51 designated by the hospital, determines to a reasonable degree of medical
52 certainty that:
53 (i) life-sustaining treatment offers the patient no medical benefit
54 because the patient will die imminently, even if the treatment is
55 provided; and
S. 6314 17
1 (ii) the provision of life-sustaining treatment would violate accepted
2 medical standards, then such treatment may be withdrawn or withheld from
3 an adult patient who has been determined to lack decision-making capaci-
4 ty pursuant to section twenty-nine hundred ninety-four-c of this arti-
5 cle, without judicial approval. This paragraph shall not apply to any
6 treatment necessary to alleviate pain or discomfort.
7 5-a. Decisions regarding hospice care. An attending physician or
8 attending nurse practitioner shall be authorized to make decisions
9 regarding hospice care and execute appropriate documents for such deci-
10 sions (including a hospice election form) for an adult patient under
11 this section who is hospice eligible in accordance with the following
12 requirements.
13 (a) The attending physician or attending nurse practitioner shall make
14 decisions under this section in consultation with staff directly respon-
15 sible for the patient's care, and shall base his or her decisions on the
16 standards for surrogate decisions set forth in subdivisions four and
17 five of section twenty-nine hundred ninety-four-d of this article;
18 (b) There is a concurring opinion as follows:
19 (i) in a general hospital, at least one other physician or nurse prac-
20 titioner designated by the hospital must independently determine that he
21 or she concurs that the recommendation is consistent with such standards
22 for surrogate decisions;
23 (ii) in a residential health care facility, the medical director of
24 the facility, or a physician or nurse practitioner designated by the
25 medical director, must independently determine that he or she concurs
26 that the recommendation is consistent with such standards for surrogate
27 decisions; provided that if the medical director is the patient's
28 attending physician or attending nurse practitioner, a different physi-
29 cian or nurse practitioner designated by the residential health care
30 facility must make this independent determination; or
31 (iii) in settings other than a general hospital or residential health
32 care facility, the medical director of the hospice, or a physician
33 designated by the medical director, must independently determine that he
34 or she concurs that the recommendation is medically appropriate and
35 consistent with such standards for surrogate decisions; provided that if
36 the medical director is the patient's attending physician or attending
37 nurse practitioner, a different physician or nurse practitioner desig-
38 nated by the hospice must make this independent determination; and
39 (c) The ethics review committee of the general hospital, residential
40 health care facility or hospice, as applicable, including at least one
41 physician or nurse practitioner who is not the patient's attending
42 physician or attending nurse practitioner, or a court of competent
43 jurisdiction, must review the decision and determine that it is consist-
44 ent with such standards for surrogate decisions.
45 6. Physician or nurse practitioner objection. If a physician or nurse
46 practitioner consulted for a concurring opinion objects to an attending
47 physician's or attending nurse practitioner's recommendation or determi-
48 nation made pursuant to this section, or a member of the hospital staff
49 directly responsible for the patient's care objects to an attending
50 physician's or attending nurse practitioner's recommendation about major
51 medical treatment or treatment without medical benefit, the matter shall
52 be referred to the ethics review committee if it cannot be otherwise
53 resolved.
54 § 23. Section 2994-j of the public health law, as added by chapter 8
55 of the laws of 2010, is amended read as follows:
S. 6314 18
1 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
2 guardian of a minor patient may at any time revoke his or her consent to
3 withhold or withdraw life-sustaining treatment by informing an attending
4 physician, attending nurse practitioner or a member of the medical or
5 nursing staff of the revocation.
6 2. An attending physician or attending nurse practitioner informed of
7 a revocation of consent made pursuant to this section shall immediately:
8 (a) record the revocation in the patient's medical record;
9 (b) cancel any orders implementing the decision to withhold or with-
10 draw treatment; and
11 (c) notify the hospital staff directly responsible for the patient's
12 care of the revocation and any cancellations.
13 3. Any member of the medical or nursing staff, other than a nurse
14 practitioner, informed of a revocation made pursuant to this section
15 shall immediately notify an attending physician or attending nurse prac-
16 titioner of the revocation.
17 § 24. The opening paragraph of subdivision 2 of section 2994-k of the
18 public health law, as added by chapter 8 of the laws of 2010, is amended
19 to read as follows:
20 If a decision to withhold or withdraw life-sustaining treatment has
21 been made pursuant to this article, and an attending physician or
22 attending nurse practitioner determines at any time that the decision is
23 no longer appropriate or authorized because the patient has regained
24 decision-making capacity or because the patient's condition has other-
25 wise improved, the physician or nurse practitioner shall immediately:
26 § 25. Section 2994-l of the public health law, as added by chapter 8
27 of the laws of 2010, is amended to read as follows:
28 § 2994-l. Interinstitutional transfers. If a patient with an order to
29 withhold or withdraw life-sustaining treatment is transferred from a
30 mental hygiene facility to a hospital or from a hospital to a different
31 hospital, any such order or plan shall remain effective until an attend-
32 ing physician or attending nurse practitioner first examines the trans-
33 ferred patient, whereupon an attending physician or attending nurse
34 practitioner must either:
35 1. Issue appropriate orders to continue the prior order or plan. Such
36 orders may be issued without obtaining another consent to withhold or
37 withdraw life-sustaining treatment pursuant to this article; or
38 2. Cancel such order, if the attending physician or attending nurse
39 practitioner determines that the order is no longer appropriate or
40 authorized. Before canceling the order the attending physician or
41 attending nurse practitioner shall make reasonable efforts to notify the
42 person who made the decision to withhold or withdraw treatment and the
43 hospital staff directly responsible for the patient's care of any such
44 cancellation. If such notice cannot reasonably be made prior to cancel-
45 ing the order or plan, the attending physician or attending nurse prac-
46 titioner shall make such notice as soon as reasonably practicable after
47 cancellation.
48 § 26. Subdivisions 3 and 4 of section 2994-m of the public health law,
49 as added by chapter 8 of the laws of 2010 and paragraph (c) of subdivi-
50 sion 4 as added by chapter 167 of the laws of 2011, are amended to read
51 as follows:
52 3. Committee membership. The membership of ethics review committees
53 must be interdisciplinary and must include at least five members who
54 have demonstrated an interest in or commitment to patient's rights or to
55 the medical, public health, or social needs of those who are ill. At
56 least three ethics review committee members must be health or social
S. 6314 19
1 services practitioners, at least one of whom must be a registered nurse
2 and one of whom must be a physician or nurse practitioner. At least one
3 member must be a person without any governance, employment or contractu-
4 al relationship with the hospital. In a residential health care facility
5 the facility must offer the residents' council of the facility (or of
6 another facility that participates in the committee) the opportunity to
7 appoint up to two persons to the ethics review committee, none of whom
8 may be a resident of or a family member of a resident of such facility,
9 and both of whom shall be persons who have expertise in or a demon-
10 strated commitment to patient rights or to the care and treatment of the
11 elderly or nursing home residents through professional or community
12 activities, other than activities performed as a health care provider.
13 4. Procedures for ethics review committee. (a) These procedures are
14 required only when: (i) the ethics review committee is convened to
15 review a decision by a surrogate to withhold or withdraw life-sustaining
16 treatment for: (A) a patient in a residential health care facility
17 pursuant to paragraph (b) of subdivision five of section twenty-nine
18 hundred ninety-four-d of this article; (B) a patient in a general hospi-
19 tal pursuant to paragraph (c) of subdivision five of section twenty-nine
20 hundred ninety-four-d of this article; or (C) an emancipated minor
21 patient pursuant to subdivision three of section twenty-nine hundred
22 ninety-four-e of this article; or (ii) when a person connected with the
23 case requests the ethics review committee to provide assistance in
24 resolving a dispute about proposed care. Nothing in this section shall
25 bar health care providers from first striving to resolve disputes
26 through less formal means, including the informal solicitation of
27 ethical advice from any source.
28 (b)(i) A person connected with the case may not participate as an
29 ethics review committee member in the consideration of that case.
30 (ii) The ethics review committee shall respond promptly, as required
31 by the circumstances, to any request for assistance in resolving a
32 dispute or consideration of a decision to withhold or withdraw life-sus-
33 taining treatment pursuant to paragraphs (b) and (c) of subdivision five
34 of section twenty-nine hundred ninety-four-d of this article made by a
35 person connected with the case. The committee shall permit persons
36 connected with the case to present their views to the committee, and to
37 have the option of being accompanied by an advisor when participating in
38 a committee meeting.
39 (iii) The ethics review committee shall promptly provide the patient,
40 where there is any indication of the patient's ability to comprehend the
41 information, the surrogate, other persons on the surrogate list directly
42 involved in the decision or dispute regarding the patient's care, any
43 parent or guardian of a minor patient directly involved in the decision
44 or dispute regarding the minor patient's care, an attending physician,
45 an attending nurse practitioner, the hospital, and other persons the
46 committee deems appropriate, with the following:
47 (A) notice of any pending case consideration concerning the patient,
48 including, for patients, persons on the surrogate list, parents and
49 guardians, information about the ethics review committee's procedures,
50 composition and function; and
51 (B) the committee's response to the case, including a written state-
52 ment of the reasons for approving or disapproving the withholding or
53 withdrawal of life-sustaining treatment for decisions considered pursu-
54 ant to subparagraph (ii) of paragraph (a) of subdivision five of section
55 twenty-nine hundred ninety-four-d of this article. The committee's
56 response to the case shall be included in the patient's medical record.
S. 6314 20
1 (iv) Following ethics review committee consideration of a case
2 concerning the withdrawal or withholding of life-sustaining treatment,
3 treatment shall not be withdrawn or withheld until the persons identi-
4 fied in subparagraph (iii) of this paragraph have been informed of the
5 committee's response to the case.
6 (c) When an ethics review committee is convened to review decisions
7 regarding hospice care for a patient in a general hospital or residen-
8 tial health care facility, the responsibilities of this section shall be
9 carried out by the ethics review committee of the general hospital or
10 residential health care facility, provided that such committee shall
11 invite a representative from hospice to participate.
12 § 27. Paragraph (b) of subdivision 4 of section 2994-r of the public
13 health law, as added by chapter 8 of the laws of 2010, is amended to
14 read as follows:
15 (b) The following persons may commence a special proceeding in a court
16 of competent jurisdiction to seek appointment as the health care guardi-
17 an of a minor patient solely for the purpose of deciding about life-sus-
18 taining treatment pursuant to this article:
19 (i) the hospital administrator;
20 (ii) an attending physician or attending nurse practitioner;
21 (iii) the local commissioner of social services or the local commis-
22 sioner of health, authorized to make medical treatment decisions for the
23 minor pursuant to section three hundred eighty-three-b of the social
24 services law; or
25 (iv) an individual, eighteen years of age or older, who has assumed
26 care of the minor for a substantial and continuous period of time.
27 § 28. Subdivision 1 of section 2994-s of the public health law, as
28 added by chapter 8 of the laws of 2010, is amended to read as follows:
29 1. Any hospital [or], attending physician or nurse practitioner that
30 refuses to honor a health care decision by a surrogate made pursuant to
31 this article and in accord with the standards set forth in this article
32 shall not be entitled to compensation for treatment, services, or proce-
33 dures refused by the surrogate, except that this subdivision shall not
34 apply:
35 (a) when a hospital [or], physician or nurse practitioner exercises
36 the rights granted by section twenty-nine hundred ninety-four-n of this
37 article, provided that the physician, nurse practitioner or hospital
38 promptly fulfills the obligations set forth in section twenty-nine
39 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, nurse practitioner or hospital prevails in any
46 litigation concerning the surrogate's decision to refuse the treatment,
47 services or procedure. Nothing in this section shall determine or
48 affect how disputes among individuals on the surrogate list are
49 resolved.
50 § 29. Subdivision 2 of section 2994-aa of the public health law, as
51 added by chapter 8 of the laws of 2010, is amended and two new subdivi-
52 sions 2-a and 13-a are added to read as follows:
53 2. "Attending physician" means the physician who has primary responsi-
54 bility for the treatment and care of the patient. Where more than one
55 physician or nurse practitioner shares such responsibility, any such
S. 6314 21
1 physician or nurse practitioner may act as the attending physician or
2 attending nurse practitioner pursuant to this article.
3 2-a. "Attending nurse practitioner" means the nurse practitioner
4 selected by or assigned to a patient in a hospital who has primary
5 responsibility for the treatment and care of the patient. Where more
6 than one physician and/or nurse practitioner shares such responsibility,
7 any such physician or nurse practitioner may act as the attending physi-
8 cian or attending nurse practitioner pursuant to this article.
9 13-a. "Nurse practitioner" means a nurse practitioner certified pursu-
10 ant to section sixty-nine hundred ten of the education law who is prac-
11 ticing in accordance with subdivision three of section sixty-nine
12 hundred two of the education law.
13 § 30. Section 2994-cc of the public health law, as added by chapter 8
14 of the laws of 2010, subdivision 4 as amended by section 131 of subpart
15 B of part C of chapter 62 of the laws of 2011, is amended to read as
16 follows:
17 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An
18 adult with decision-making capacity, a health care agent, or a surrogate
19 may consent to a nonhospital order not to resuscitate orally to the
20 attending physician or attending nurse practitioner or in writing. If a
21 patient consents to a nonhospital order not to resuscitate while in a
22 correctional facility, notice of the patient's consent shall be given to
23 the facility director and reasonable efforts shall be made to notify an
24 individual designated by the patient to receive such notice prior to the
25 issuance of the nonhospital order not to resuscitate. Notification to
26 the facility director or the individual designated by the patient shall
27 not delay issuance of a nonhospital order not to resuscitate.
28 2. Consent by a health care agent shall be governed by article twen-
29 ty-nine-C of this chapter.
30 3. Consent by a surrogate shall be governed by article twenty-nine-CC
31 of this chapter, except that: (a) a second determination of capacity
32 shall be made by a health or social services practitioner; and (b) the
33 authority of the ethics review committee set forth in article
34 twenty-nine-CC of this chapter shall apply only to nonhospital orders
35 issued in a hospital.
36 4. (a) When the concurrence of a second physician or nurse practition-
37 er is sought to fulfill the requirements for the issuance of a nonhospi-
38 tal order not to resuscitate for patients in a correctional facility,
39 such second physician or nurse practitioner shall be selected by the
40 chief medical officer of the department of corrections and community
41 supervision or his or her designee.
42 (b) When the concurrence of a second physician or nurse practitioner
43 is sought to fulfill the requirements for the issuance of a nonhospital
44 order not to resuscitate for hospice and home care patients, such second
45 physician or nurse practitioner shall be selected by the hospice medical
46 director or hospice nurse coordinator designated by the medical director
47 or by the home care services agency director of patient care services,
48 as appropriate to the patient.
49 5. Consent by a patient or a surrogate for a patient in a mental
50 hygiene facility shall be governed by article twenty-nine-B of this
51 chapter.
52 § 31. Section 2994-dd of the public health law, as added by chapter 8
53 of the laws of 2010, subdivision 6 as amended by section 10 of part J of
54 chapter 56 of the laws of 2012, is amended to read as follows:
55 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The
56 attending physician or attending nurse practitioner shall record the
S. 6314 22
1 issuance of a nonhospital order not to resuscitate in the patient's
2 medical record.
3 2. A nonhospital order not to resuscitate shall be issued upon a stan-
4 dard form prescribed by the commissioner. The commissioner shall also
5 develop a standard bracelet that may be worn by a patient with a nonhos-
6 pital order not to resuscitate to identify that status; provided, howev-
7 er, that no person may require a patient to wear such a bracelet and
8 that no person may require a patient to wear such a bracelet as a condi-
9 tion for honoring a nonhospital order not to resuscitate or for provid-
10 ing health care services.
11 3. An attending physician or attending nurse practitioner who has
12 issued a nonhospital order not to resuscitate, and who transfers care of
13 the patient to another physician or nurse practitioner, shall inform the
14 physician or nurse practitioner of the order.
15 4. For each patient for whom a nonhospital order not to resuscitate
16 has been issued, the attending physician or attending nurse practitioner
17 shall review whether the order is still appropriate in light of the
18 patient's condition each time he or she examines the patient, whether in
19 the hospital or elsewhere, but at least every ninety days, provided that
20 the review need not occur more than once every seven days. The attending
21 physician or attending nurse practitioner shall record the review in the
22 patient's medical record provided, however, that a registered nurse,
23 other than the attending nurse practitioner, who provides direct care to
24 the patient may record the review in the medical record at the direction
25 of the physician. In such case, the attending physician or attending
26 nurse practitioner shall include a confirmation of the review in the
27 patient's medical record within fourteen days of such review. Failure
28 to comply with this subdivision shall not render a nonhospital order not
29 to resuscitate ineffective.
30 5. A person who has consented to a nonhospital order not to resusci-
31 tate may at any time revoke his or her consent to the order by any act
32 evidencing a specific intent to revoke such consent. Any health care
33 professional, other than the attending physician or attending nurse
34 practitioner, informed of a revocation of consent to a nonhospital order
35 not to resuscitate shall notify the attending physician or attending
36 nurse practitioner of the revocation. An attending physician or attend-
37 ing nurse practitioner who is informed that a nonhospital order not to
38 resuscitate has been revoked shall record the revocation in the
39 patient's medical record, cancel the order and make diligent efforts to
40 retrieve the form issuing the order, and the standard bracelet, if any.
41 6. The commissioner may authorize the use of one or more alternative
42 forms for issuing a nonhospital order not to resuscitate (in place of
43 the standard form prescribed by the commissioner under subdivision two
44 of this section). Such alternative form or forms may also be used to
45 issue a non-hospital do not intubate order. Any such alternative forms
46 intended for use for persons with developmental disabilities or persons
47 with mental illness who are incapable of making their own health care
48 decisions or who have a guardian of the person appointed pursuant to
49 article eighty-one of the mental hygiene law or article seventeen-A of
50 the surrogate's court procedure act must also be approved by the commis-
51 sioner of developmental disabilities or the commissioner of mental
52 health, as appropriate. An alternative form under this subdivision shall
53 otherwise conform with applicable federal and state law. This subdivi-
54 sion does not limit, restrict or impair the use of an alternative form
55 for issuing an order not to resuscitate in a general hospital or resi-
56 dential health care facility under article twenty-eight of this chapter
S. 6314 23
1 or a hospital under subdivision ten of section 1.03 of the mental
2 hygiene law.
3 § 32. Subdivision 2 of section 2994-ee of the public health law, as
4 added by chapter 8 of the laws of 2010, is amended to read as follows:
5 2. Hospital emergency services physicians and hospital emergency
6 services nurse practitioners may direct that the order be disregarded if
7 other significant and exceptional medical circumstances warrant disre-
8 garding the order.
9 § 33. This act shall take effect on the one hundred eightieth day
10 after it shall have become a law; provided that, effective immediately,
11 any rules and regulations necessary to implement the provisions of this
12 act on its effective date are authorized and directed to be amended,
13 repealed and/or promulgated on or before such date.
