senate Bill S5014A

Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal

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Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 02 / May / 2011
    • REFERRED TO HEALTH
  • 25 / May / 2011
    • AMEND AND RECOMMIT TO HEALTH
  • 25 / May / 2011
    • PRINT NUMBER 5014A
  • 07 / Jun / 2011
    • 1ST REPORT CAL.1133
  • 13 / Jun / 2011
    • 2ND REPORT CAL.
  • 14 / Jun / 2011
    • ADVANCED TO THIRD READING
  • 24 / Jun / 2011
    • COMMITTED TO RULES
  • 04 / Jan / 2012
    • REFERRED TO HEALTH
  • 05 / Jun / 2012
    • 1ST REPORT CAL.1081
  • 06 / Jun / 2012
    • 2ND REPORT CAL.
  • 11 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • SUBSTITUTED BY A8389

Summary

Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal to a particular medical setting when such principal is unconscious or unresponsive.

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Bill Details

See Assembly Version of this Bill:
A8389
Versions:
S5014
S5014A
Legislative Cycle:
2011-2012
Law Section:
Public Health Law
Laws Affected:
Amd ยงยง2981 & 2983, Pub Health L

Votes

12
0
12
Aye
0
Nay
5
aye with reservations
0
absent
0
excused
0
abstained
show Health committee vote details

Sponsor Memo

BILL NUMBER:S5014A

TITLE OF BILL:
An act
to amend the public health law, in relation to the authority of an agent
to act outside a hospital setting to make certain decisions regarding
the transport of the principal to a particular medical setting when such
principal is unconscious or unresponsive

PURPOSE:
To remove the prerequisite of an attending physician to determine the
principal's decisional incapacity when the principal is outside a
hospital, mental hygiene facility or residential health care facility
and authorize the agent to make decisions for transport to a
particular hospital, mental hygiene facility or residential health
care facility when the principal is unconscious or unresponsive and
there is no major medical trauma.

SUMMARY OF PROVISIONS:
Section 1 amends section 2981 of the public health law's to allow a
health care agent's authority to commence if the principle is not
found within a hospital, mental hygiene facility or residential health
care facility and is in an unconscious or unresponsive state.

Section 2 amends section 2982 of the public health law to allow health
care agents to make decisions on behalf of principals, limited to
placement in a hospital, mental hygiene facility, residential health
care facility or the choice of provider, when the principal is
unconscious or unresponsive and is not found within a hospital,
mental hygiene facility or residential healthcare facility, without
consultation with a licensed physician, registered nurse, licensed
psychologist, licensed master social worker, or licensed clinical
social worker.

Section 3 amends section 2983 of the public health law to allow that
no determination by the physician be required, where the principal is
found outside of a hospital, mental hygiene facility or residential
health care facility and is unconscious or unresponsive as there shall
be a presumption of incapacity for limited purposes of empowering the
health care agent to make health care decisions in regard to the
principal's placement in a hospital, mental hygiene facility,
residential health care facility or choosing a health care provider.

Section 4 Establishes the effective date.

JUSTIFICATION:
Many senior citizens and legal practitioners believe that a properly
prepared and executed health care proxy can be used immediately when
the need arises. In particular, many legal practitioners counsel, and
seniors believe that the health care agent's authority to act is
comprehensive in all settings, including outside of a hospital or
other medical health facility. However, recently, a federal court
decision in Stein vs.
County of Nassau, et al. (Eastern District, (06-cv-5522-JS-WDW)
7/23/09) outlined, inter alia, the limitations on the authority of a
health care agent authority to make decisions, including the decision


to transport the principal to a particular hospital or other medical
institutional setting, when that decision is made outside of a
hospital setting. The federal court held that if the principal is
non-responsive and not in major medical trauma, the health care proxy
is valid outside of a hospital and institution but that PHL section
2982 imposes restrictions on the agent's health care
decision making authority.
Specifically, that there is a procedural requirement that the Agent
first consult with one of the listed professionals in the statute
before a health care decision, including transport
to a particular
medical facility, may be made.

LEGISLATIVE HISTORY:
None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                 5014--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 2, 2011
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Health  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to amend the public health law, in relation to the authority of
  an agent to act outside a hospital setting to make  certain  decisions
  regarding  the  transport  of  the  principal  to a particular medical
  setting when such principal is unconscious or unresponsive

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

  Section  1. Subdivision 4 of section 2981 of the public health law, as
added by chapter 752 of the laws of 1990, is amended to read as follows:
  4. Commencement of agent's  authority.  The  agent's  authority  shall
commence  upon  a  determination,  made  pursuant  to subdivision one of
section two thousand nine hundred eighty-three of this article, that the
principal lacks capacity to make health care decisions OR IF THE PRINCI-
PAL IS NOT FOUND WITHIN A HOSPITAL, MENTAL HYGIENE FACILITY OR  RESIDEN-
TIAL  HEALTH  CARE  FACILITY  AND  IS  IN AN UNCONSCIOUS OR UNRESPONSIVE
STATE.
  S 2.  Paragraph (a) of subdivision 1 of section  2983  of  the  public
health  law,  as added by chapter 752 of the laws of 1990, is amended to
read as follows:
  (a) A determination that a principal lacks  capacity  to  make  health
care  decisions shall be made by the attending physician to a reasonable
degree of medical certainty. The determination shall be made in  writing
and shall contain such attending physician's opinion regarding the cause
and nature of the principal's incapacity as well as its extent and prob-
able  duration.  The  determination  shall  be included in the patient's
medical record. For a decision to withdraw or  withhold  life-sustaining
treatment,  the  attending  physician who makes the determination that a
principal lacks capacity to make health care decisions must consult with

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11239-02-1

S. 5014--A                          2

another physician to confirm such determination. Such consultation shall
also be included within the patient's medical record.  NO  DETERMINATION
BY  THE PHYSICIAN SHALL BE REQUIRED WHERE THE PRINCIPAL IS FOUND OUTSIDE
OF A HOSPITAL, MENTAL HYGIENE FACILITY OR RESIDENTIAL HEALTH CARE FACIL-
ITY AND THE PRINCIPAL IS UNCONSCIOUS OR UNRESPONSIVE AS THERE SHALL BE A
PRESUMPTION  OF  INCAPACITY  FOR  THE  LIMITED PURPOSE OF EMPOWERING THE
HEALTH CARE AGENT TO MAKE HEALTH CARE DECISIONS IN REGARD TO THE  CHOICE
OF  WHICH  HOSPITAL, MENTAL HYGIENE FACILITY, OR RESIDENTIAL HEALTH CARE
PROVIDER WHERE THE PRINCIPAL SHOULD BE TRANSPORTED.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately, the addition,  amend-
ment  and/or repeal of any rules or regulations necessary for the imple-
mentation of this act on its effective date are authorized to be made on
or before such effective date.

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