senate Bill S5014A

Vetoed By Governor
2011-2012 Legislative Session

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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Archive: Last Bill Status Via A8389 - Vetoed by Governor


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

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Actions

view actions (19)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Oct 05, 2012 tabled
Oct 03, 2012 vetoed memo.156
Sep 21, 2012 delivered to governor
Jun 21, 2012 returned to assembly
passed senate
3rd reading cal.1081
substituted for s5014a
Jun 21, 2012 substituted by a8389
Jun 11, 2012 advanced to third reading
Jun 06, 2012 2nd report cal.
Jun 05, 2012 1st report cal.1081
Jan 04, 2012 referred to health
Jun 24, 2011 committed to rules
Jun 14, 2011 advanced to third reading
Jun 13, 2011 2nd report cal.
Jun 07, 2011 1st report cal.1133
May 25, 2011 print number 5014a
amend and recommit to health
May 02, 2011 referred to health

Votes

view votes

Jun 5, 2012 - Health committee Vote

S5014A
12
0
committee
12
Aye
0
Nay
3
Aye with Reservations
0
Absent
2
Excused
0
Abstained
show Health committee vote details

Health Committee Vote: Jun 5, 2012

aye wr (3)
excused (2)

Jun 7, 2011 - Health committee Vote

S5014A
12
0
committee
12
Aye
0
Nay
5
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Health committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

S5014 - Bill Details

See Assembly Version of this Bill:
A8389
Law Section:
Public Health Law
Laws Affected:
Amd §§2981 & 2983, Pub Health L

S5014 - Bill Texts

view 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.

view sponsor memo
BILL NUMBER:S5014

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:
120th day after becoming law.

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

                                  5014

                       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

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.  Subdivision  2  of  section  2982  of the public health law, as
amended by chapter 230 of the laws  of  2004,  is  amended  to  read  as
follows:
  2. Decision-making standard. After consultation with a licensed physi-
cian,  registered  nurse,  licensed psychologist, licensed master social
worker, or a licensed clinical  social  worker,  the  agent  shall  make
health  care  decisions:  (a) in accordance with the principal's wishes,
including the principal's religious and moral beliefs;  or  (b)  if  the
principal's  wishes  are not reasonably known and cannot with reasonable
diligence be ascertained, in accordance with the principal's best inter-
ests; provided, however, that if the principal's  wishes  regarding  the
administration  of artificial nutrition and hydration are not reasonably
known and cannot with reasonable diligence  be  ascertained,  the  agent
shall not have the authority to make decisions regarding these measures.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11239-01-1

S. 5014                             2

WHERE  THE  PRINCIPAL  IS  UNCONSCIOUS  OR UNRESPONSIVE AND IS NOT FOUND
WITHIN A HOSPITAL, MENTAL HYGIENE FACILITY OR A RESIDENTIAL HEALTH  CARE
FACILITY,  THE  AGENT  SHALL  MAKE  DECISIONS  LIMITED TO PLACEMENT IN A
HOSPITAL,  MENTAL  HYGIENE FACILITY, RESIDENTIAL HEALTH CARE FACILITY OR
THE CHOICE OF HEALTH CARE PROVIDER PURSUANT TO THIS SUBDIVISION  WITHOUT
CONSULTATION  WITH  A  LICENSED  PHYSICIAN,  REGISTERED  NURSE, LICENSED
PSYCHOLOGIST, LICENSED MASTER SOCIAL WORKER, OR LICENSED CLINICAL SOCIAL
WORKER.
  S 3. 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
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 PRINCI-
PAL'S  PLACEMENT  IN  A  HOSPITAL,  MENTAL HYGIENE FACILITY, RESIDENTIAL
HEALTH CARE FACILITY OR CHOOSING A HEALTH CARE PROVIDER.
  S 4. 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.

S5014A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A8389
Law Section:
Public Health Law
Laws Affected:
Amd §§2981 & 2983, Pub Health L

S5014A (ACTIVE) - Bill Texts

view 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.

view 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 full text
download pdf
                    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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