BILL NUMBER:S2908

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 partic-
ular medical setting when such principal is unconscious or unresponsive

PURPOSE:  To remove the prerequisite of an attending physician to deter-
mine 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 place-
ment 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 practition-
ers 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 hospi-
tal or other medical institutional setting, when that decision is made
outside of a hospital setting. The federal court held that if the prin-
cipal is nonresponsive 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 partic-
ular medical facility, may be made.

LEGISLATIVE HISTORY: S.5014A/A.8389 - Vetoed

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately.