A. 7571 2
S 3. Paragraph (b) of subdivision 1 of section 2981 of the public
health law, as added by chapter 752 of the laws of 1990, is amended to
read as follows:
(b) For the purposes of this section, every adult shall be presumed
competent to appoint a health care agent unless such person has been
adjudged incompetent or otherwise adjudged not competent to appoint a
health care agent, or unless a [committee or] guardian of the person has
been appointed for the adult pursuant to article [seventy-eight] EIGHT-
Y-ONE of the mental hygiene law or article seventeen-A of the surro-
gate's court procedure act.
S 4. The fourth undesignated paragraph of paragraph (d) of subdivision
5 of section 2981 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
NOTE: Although not necessary, and neither encouraged nor discouraged,
you may wish to state instructions or wishes, and limit your agent's
authority. [Unless your agent knows your wishes about artificial nutri-
tion and hydration, your agent will not have authority to decide about
artificial nutrition and hydration.] If you choose to state
instructions, wishes, or limits, please do so below:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
S 5. 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, PHYSICIAN ASSISTANT, licensed psychologist,
licensed master social worker, or a licensed clinical social worker, the
agent shall make health care decisions: (a) in accordance with the prin-
cipal'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 princi-
pal's best interests[; 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 ascer-
tained, the agent shall not have the authority to make decisions regard-
ing these measures].
S 5-a. Subdivisions 2, 3, 4, 5, 6 and 7 of section 2983 of the public
health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
S 6. Subdivision 1 of section 2983 of the public health law, as added
by chapter 752 of the laws of 1990, paragraph (b) as amended by chapter
23 of the laws of 1994 and paragraph (c) as amended by section 7 of part
J of chapter 56 of the laws of 2012, is amended to read as follows:
1. [Determination] INITIAL DETERMINATION by attending physician. [(a)
A] AN INITIAL 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 regard-
ing the cause and nature of the principal's incapacity as well as its
extent and probable 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 determi-
nation 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]
A PHYSICIAN WHO HAS BEEN APPOINTED AS A PATIENT'S AGENT SHALL NOT MAKE
A. 7571 3
THE DETERMINATION OF THE PATIENT'S CAPACITY TO MAKE HEALTH CARE DECI-
SIONS.
2. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT DECISIONS.
FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE
FOLLOWING SHALL APPLY:
(A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY SHALL BE
SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR
SOCIAL SERVICES PRACTITIONER. A CONCURRING DETERMINATION SHALL INCLUDE
AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE PATIENT'S INCAPACITY AND
THE LIKELIHOOD THAT THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY,
AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. HOSPITALS SHALL
ADOPT WRITTEN POLICIES IDENTIFYING THE TRAINING AND CREDENTIALS OF
HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE CONCURRING
DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS.
(b) If an attending physician of a patient in a general hospital or
mental hygiene facility determines that a patient lacks capacity because
of mental illness, [the attending physician who makes the determination
must be, or must consult, for the purpose of confirming the determi-
nation, with a qualified psychiatrist] EITHER SUCH PHYSICIAN OR THE
CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A
PHYSICIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A
DIPLOMATE OR ELIGIBLE TO BE CERTIFIED BY THE AMERICAN BOARD OF PSYCHIA-
TRY AND NEUROLOGY OR WHO IS CERTIFIED BY THE AMERICAN OSTEOPATHIC BOARD
OF NEUROLOGY AND PSYCHIATRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT
BOARD. A record of such consultation shall be included in the patient's
medical record.
(c) If the attending physician determines that a patient lacks capaci-
ty because of a developmental disability, [the attending physician who
makes the determination must be, or must consult, for the purpose of
confirming the determination, with] EITHER SUCH PHYSICIAN OR THE CONCUR-
RING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: EITHER (I) FOR
A PATIENT IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES PRACTITIONER QUALI-
FIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMINATION IN ACCORDANCE
WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL; OR (II) FOR A PATIENT
IN ANY SETTING, a physician or clinical psychologist who either is
employed by a developmental disabilities services office named in
section 13.17 of the mental hygiene law, or who has been employed for a
minimum of two years to render care and service in a facility operated
or licensed by the office for people with developmental disabilities, or
has been approved by the commissioner of developmental disabilities in
accordance with regulations promulgated by such commissioner. Such regu-
lations shall require that a physician or clinical psychologist possess
specialized training or three years experience in treating developmental
disabilities. A record of such consultation shall be included in the
patient's medical record.
[(d) A physician who has been appointed as a patient's agent shall not
make the determination of the patient's capacity to make health care
decisions.]
S 7. Subdivision 4 of section 2983 of the public health law, as added
by chapter 752 of the laws of 1990 and as renumbered by section five-a
of this act, is amended to read as follows:
4. Notice of determination. Notice of a determination that a principal
lacks capacity to make health care decisions shall promptly be given:
(a) to the principal, orally and in writing, where there is any indi-
cation of the principal's ability to comprehend such notice; (b) to the
agent; AND (c) if the principal is in or is transferred from a mental
A. 7571 4
hygiene facility, to the facility director[; and (d) to the conservator
for, or committee of, the principal].
S 8. Subdivision 2 of section 2991 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
2. Such procedures shall be established in accordance with regulations
issued by the commissioners of health, mental health, and [mental retar-
dation and] developmental disabilities for facilities subject to their
respective regulatory authorities.
S 9. The opening paragraph of section 2992 of the public health law,
as added by chapter 752 of the laws of 1990, is amended to read as
follows:
The health care provider, the [conservator for, or committee] GUARDIAN
of the principal UNDER ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR
ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT, members of
the principal's family, a close friend of the principal as defined in
subdivision [five] FOUR of section [two thousand nine] TWENTY-NINE
hundred [sixty-one] NINETY-FOUR-A of this chapter, or the commissioner
[of health], THE COMMISSIONER OF mental health, or [mental retardation
and] THE COMMISSIONER OF developmental disabilities may commence a
special proceeding pursuant to article four of the civil practice law
and rules, in a court of competent jurisdiction, with respect to any
dispute arising under this article, including, but not limited to, a
proceeding to:
S 10. Section 2993 of the public health law, as added by chapter 752
of the laws of 1990, is amended to read as follows:
S 2993. Regulations. The commissioner [of health], in consultation
with the commissioners of [the office of] mental health and [the office
of mental retardation and] developmental disabilities, shall establish
such regulations as may be necessary for the implementation of this
article, subject to the provisions of subdivision two of section [two
thousand nine] TWENTY-NINE hundred ninety-one of this article.
S 11. Subdivisions 17, 20 and 26 of section 2994-a of the public
health law, as added by chapter 8 of the laws of 2010, are amended to
read as follows:
17. "Health or social [service] SERVICES practitioner" means a regis-
tered professional nurse, nurse practitioner, physician, physician
assistant, psychologist, LICENSED MASTER SOCIAL WORKER or licensed clin-
ical social worker, licensed or certified pursuant to the education law
acting within his or her scope of practice.
20. "Mental hygiene facility" means a facility operated or licensed by
the office of mental health or the office [of mental retardation and]
FOR PEOPLE WITH developmental disabilities as defined in subdivision six
of section 1.03 of the mental hygiene law.
26. "Person connected with the case" means the patient, any person on
the surrogate list, a parent or guardian of a minor patient, [the] A
hospital administrator, an attending physician, any other health or
social services practitioner who is or has been directly involved in the
patient's care, and any duly authorized state agency, including the
facility director or regional director for a patient transferred from a
mental hygiene facility and the facility director for a patient trans-
ferred from a correctional facility.
S 12. Section 2994-b of the public health law is amended by adding a
new subdivision 1-a to read as follows:
1-A. THIS ARTICLE SHALL ALSO APPLY TO DECISIONS REGARDING ORDERS NOT
TO RESUSCITATE FOR A PATIENT WHO LACKS DECISION-MAKING CAPACITY IN A
HOSPITAL AS DEFINED BY SECTION 1.03 OF THE MENTAL HYGIENE LAW.
A. 7571 5
S 13. The opening paragraph and paragraph (a) of subdivision 3 of
section 2994-b of the public health law, as added by chapter 8 of the
laws of 2010, are amended to read as follows:
Prior to seeking or relying upon a health care decision by a surrogate
for a patient under this article, if the attending physician has reason
to believe that the patient has a history of receiving services for
[mental retardation or] a developmental disability; it reasonably
appears to the attending physician that the patient has [mental retarda-
tion or] a developmental disability; or the attending physician has
reason to believe that the patient has been transferred from a mental
hygiene facility operated or licensed by the office of mental health,
then such physician shall make reasonable efforts to determine whether
paragraphs (a), (b) or (c) of this subdivision are applicable:
(a) If the patient has a guardian appointed by a court pursuant to
article seventeen-A of the surrogate's court procedure act, health care
decisions for the patient shall be governed by section seventeen hundred
fifty-b of the surrogate's court [proceedure] PROCEDURE act and not by
this article.
S 14. Subdivision 3 of section 2994-c of the public health law, as
added by chapter 8 of the laws of 2010, paragraph (b) as amended by
chapter 167 of the laws of 2011, subparagraph (ii) of paragraph (c) as
amended by section 8 of part J of chapter 56 of the laws of 2012, is
amended to read as follows:
3. Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS.
FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THEN
THE FOLLOWING SHALL APPLY: (a) An initial determination that a patient
lacks decision-making capacity shall be subject to a concurring determi-
nation, independently made, [where required by this subdivision] BY A
HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED OR OTHERWISE FORMALLY
AFFILIATED WITH THE HOSPITAL. A concurring determination shall include
an assessment of the cause and extent of the patient's incapacity and
the likelihood that the patient will regain decision-making capacity,
and shall be included in the patient's medical record. Hospitals shall
adopt written policies identifying the training and credentials of
health or social services practitioners qualified to provide concurring
determinations of incapacity.
(b) [(i) In a residential health care facility, a health or social
services practitioner employed by or otherwise formally affiliated with
the facility must independently determine whether an adult patient lacks
decision-making capacity.
(ii) In a general hospital a health or social services practitioner
employed by or otherwise formally affiliated with the facility must
independently determine whether an adult patient lacks decision-making
capacity if the surrogate's decision concerns the withdrawal or with-
holding of life-sustaining treatment.
(iii)] With respect to decisions regarding hospice care for a patient
in a general hospital or residential health care facility, the health or
social services practitioner must be employed by or otherwise formally
affiliated with the general hospital or residential health care facili-
ty.
(c) (i) If the attending physician makes an initial determination that
a patient lacks decision-making capacity because of mental illness,
either such physician OR THE CONCURRING PRACTITIONER must have the
following qualifications[, or another physician with the following qual-
ifications must independently determine whether the patient lacks deci-
sion-making capacity]: a physician licensed to practice medicine in New
A. 7571 6
York state, who is a diplomate or eligible to be certified by the Ameri-
can Board of Psychiatry and Neurology or who is certified by the Ameri-
can Osteopathic Board of Neurology and Psychiatry or is eligible to be
certified by that board. A record of such consultation shall be included
in the patient's medical record.
(ii) If the attending physician makes an initial determination that a
patient lacks decision-making capacity because of a developmental disa-
bility, either such physician OR THE CONCURRING PRACTITIONER must have
the following qualifications[, or another professional with the follow-
ing qualifications must independently determine whether the patient
lacks decision-making capacity]: EITHER (A) A HEALTH OR SOCIAL SERVICES
PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMI-
NATION IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL,
OR (B) a physician or clinical psychologist who either is employed by a
developmental disabilities services office named in section 13.17 of the
mental hygiene law, or who has been employed for a minimum of two years
to render care and service in a facility operated or licensed by the
office for people with developmental disabilities, or has been approved
by the commissioner of developmental disabilities in accordance with
regulations promulgated by such commissioner. Such regulations shall
require that a physician or clinical psychologist possess specialized
training or three years experience in treating developmental disabili-
ties. A record of such consultation shall be included in the patient's
medical record.
(d) If an attending physician has determined that the patient lacks
decision-making capacity and if the health or social services practi-
tioner consulted for a concurring determination disagrees with the
attending physician's determination, the matter shall be referred to the
ethics review committee if it cannot otherwise be resolved.
S 15. Paragraph (a) of subdivision 5 of section 2994-d of the public
health law, as added by chapter 8 of the laws of 2010, is amended to
read as follows:
(a)(i) Treatment would be an extraordinary burden to the patient and
an attending physician determines, with the independent concurrence of
another physician, that, to a reasonable degree of medical certainty and
in accord with accepted medical standards, (A) the patient has an
illness or injury which can be expected to cause death within six
months, whether or not treatment is provided; or (B) the patient is
permanently unconscious; or
(ii) The provision of treatment would involve such pain, suffering or
other burden that it would reasonably be deemed inhumane or extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending physician
with the independent concurrence of another physician to a reasonable
degree of medical certainty and in accord with accepted medical stand-
ards; OR
(III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A
SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, THAT IN
THE EVENT OF A CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WOULD BE
UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE
PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD BEFORE
DEATH OCCURS.
S 16. Paragraph (b) of subdivision 3 of section 2994-e of the public
health law, as added by chapter 8 of the laws of 2010, is amended to
read as follows:
A. 7571 7
(b) If the hospital can with reasonable efforts ascertain the identity
of the parents or guardian of an emancipated minor patient, the hospital
shall MAKE REASONABLE EFFORTS TO notify such persons prior to withhold-
ing or withdrawing life-sustaining treatment pursuant to this subdivi-
sion.
S 17. Subdivision 3 of section 2994-f of the public health law, as
added by chapter 8 of the laws of 2010, is amended to read as follows:
3. Notwithstanding the provisions of this section or subdivision one
of section twenty-nine hundred ninety-four-q of this article, if a
surrogate directs the provision of life-sustaining treatment, the denial
of which in reasonable medical judgment would be likely to result in the
death of the patient, a hospital or individual health care provider that
does not wish to provide such treatment shall nonetheless comply with
the surrogate's decision pending either transfer of the patient to a
willing hospital or individual health care provider, or judicial review
in accordance with section twenty-nine hundred ninety-four-r of this
article. THIS REQUIREMENT SHALL NOT APPLY WHEN THE HOSPITAL OR INDIVID-
UAL HEALTH CARE PROVIDER IS CARRYING OUT A PATIENT'S DECISION MADE
PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDIVISION THREE OF
SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE.
S 18. Paragraph (b) of subdivision 5 of section 2994-g of the public
health law, as added by chapter 8 of the laws of 2010, is amended to
read as follows:
(b) If the attending physician, with independent concurrence of a
second physician designated by the hospital, determines to a reasonable
degree of medical certainty that:
(i) (A) life-sustaining treatment offers the patient no medical bene-
fit because the patient will die imminently, even if the treatment is
provided; and
[(ii)] (B) the provision of life-sustaining treatment would violate
accepted medical standards, then such treatment may be withdrawn or
withheld from an adult patient who has been determined to lack deci-
sion-making capacity pursuant to section twenty-nine hundred ninety-
four-c of this article, without judicial approval. This paragraph shall
not apply to any treatment necessary to alleviate pain or discomfort; OR
(II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WILL
BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT
THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR
AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI-
TY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI-
CLE, WITHOUT JUDICIAL APPROVAL.
S 19. Subparagraph (iv) of paragraph (b) of subdivision 4 of section
2994-m of the public health law, as added by chapter 8 of the laws of
2010, is amended to read as follows:
(iv) Following ethics review committee consideration of a case
concerning the withdrawal or withholding of life-sustaining treatment,
treatment shall not be withdrawn or withheld until THE HOSPITAL MAKES
DILIGENT EFFORTS TO INFORM the persons identified in subparagraph (iii)
of this paragraph [have been informed] of the committee's response to
the case.
S 20. Subdivision 2 of section 2994-t of the public health law, as
added by chapter 8 of the laws of 2010, is amended to read as follows:
2. The commissioner, in consultation with the commissioners of [the
office of] mental health and [the office of mental retardation and]
developmental disabilities, shall promulgate regulations identifying the
A. 7571 8
credentials of health care professionals qualified to provide an inde-
pendent determination, pursuant to subdivision three of section twenty-
nine hundred ninety-four-c of this article, that a patient lacks deci-
sion-making capacity because of mental illness or developmental
disability.
S 21. Section 2994-u of the public health law, as added by chapter 8
of the laws of 2010, is amended to read as follows:
S 2994-u. Rights to be publicized. The commissioner shall prepare a
statement summarizing the rights, duties, and requirements of this arti-
cle and shall require that a copy of such statement be furnished to
[patients] A PATIENT or to [persons on] the surrogate [list known to the
hospital], or to the [parents or guardians] PARENT OR GUARDIAN of A
minor [patients] PATIENT, at or prior to admission to the hospital, or
within a reasonable time thereafter, and to [each member of the hospi-
tal's staff directly involved with patient care] ANY PERSON ON THE
SURROGATE LIST WHO REQUESTS A COPY OF SUCH STATEMENT FROM THE HOSPITAL.
THE STATEMENT SHALL ALSO BE MADE AVAILABLE TO THE HOSPITAL CLINICAL
STAFF.
S 22. The commissioner of health shall revise the statement of rights
that hospitals are required to post (known as the Patient's Bill of
Rights) pursuant to paragraph (g) of subdivision 1 of section 2803 of
the public health law, by replacing the clause regarding orders not to
resuscitate with a statement that more generally informs patients of
their right to receive from the hospital upon admission, and upon
request, a more complete statement of their rights with respect to
deciding about health care, including appointing a health care agent,
consenting to do-not-resuscitate orders and making other life-sustaining
treatment decisions. The clause should also state in substance that the
hospital will also provide such statement upon request to any family
member or friend of a patient who lacks decision-making capacity.
S 23. Subdivisions 12 and 13 of section 2994-aa of the public health
law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
vision 13 as amended by chapter 167 of the laws of 2011, are amended and
a new subdivision 14-a is added to read as follows:
12. "Mental hygiene facility" means a residential facility operated or
licensed by the office of mental health [or the office of mental retar-
dation and developmental disabilities].
13. "Nonhospital order not to resuscitate" means an order that directs
emergency medical services personnel, hospice personnel, HOME CARE
SERVICES AGENCY PERSONNEL, SCHOOL HEALTH PERSONNEL, and hospital emer-
gency services personnel not to attempt cardiopulmonary resuscitation in
the event a patient suffers cardiac or respiratory arrest.
14-A. "SCHOOL HEALTH PERSONNEL" MEANS A SCHOOL-BASED PHYSICIAN, NURSE,
PHYSICIAN ASSISTANT OR NURSE PRACTITIONER.
S 24. Paragraph (a) of subdivision 1 of section 2994-bb of the public
health law, as added by chapter 8 of the laws of 2010, is amended to
read as follows:
(a) Emergency medical services personnel, home care services agency
personnel, hospice personnel, SCHOOL HEALTH PERSONNEL, and hospital
emergency services personnel shall honor nonhospital orders not to
resuscitate, except as provided in section twenty-nine hundred ninety-
four-ee of this article.
S 25. Subdivisions 3, 4 and 5 of section 2994-cc of the public health
law, subdivisions 3 and 5 as added by chapter 8 of the laws of 2010 and
subdivision 4 as amended by section 131 of subpart B of part C of chap-
ter 62 of the laws of 2011, are amended to read as follows:
A. 7571 9
3. Consent by a surrogate shall be governed by article twenty-nine-CC
of this chapter, except that[: (a) a second determination of capacity
shall be made by a health or social services practitioner; and (b)] the
authority of the ethics review committee set forth in article
twenty-nine-CC of this chapter shall apply only to nonhospital orders
issued in a hospital OR HOSPICE.
4. (a) When the concurrence of a second [physician] HEALTH OR SOCIAL
SERVICES PRACTITIONER is sought to fulfill the requirements for the
issuance of a nonhospital order not to resuscitate for patients in a
correctional facility, such second [physician] HEALTH OR SOCIAL SERVICES
PRACTITIONER shall be selected by the chief medical officer of the
department of corrections and community supervision or his or her desig-
nee.
(b) When the concurrence of a second [physician] HEALTH OR SOCIAL
SERVICES PRACTITIONER is sought to fulfill the requirements for the
issuance of a nonhospital order not to resuscitate for [hospice and]
home care patients, such second [physician] HEALTH OR SOCIAL SERVICES
PRACTITIONER shall be selected [by the hospice medical director or
hospice nurse coordinator designated by the medical director or] by the
home care services agency director of patient care services[, as appro-
priate to the patient].
5. Consent by a patient or a surrogate for a patient [in a mental
hygiene facility shall be governed by article twenty-nine-B of this
chapter] IN A FACILITY OPERATED OR LICENSED BY THE OFFICE OF MENTAL
HEALTH SHALL BE GOVERNED BY THIS ARTICLE. CONSENT BY A PATIENT WHO IS
INTELLECTUALLY OR OTHERWISE DEVELOPMENTALLY DISABLED AND IS ELIGIBLE FOR
LIFE-SUSTAINING TREATMENT DECISIONS PURSUANT TO SECTION SEVENTEEN
HUNDRED FIFTY-B OF THE SURROGATE'S COURT PROCEDURE ACT SHALL BE GOVERNED
BY THAT SECTION.
S 26. Subdivisions 2 and 6 of section 2994-dd of the public health
law, subdivision 2 as added by chapter 8 of the laws of 2010 and subdi-
vision 6 as amended by section 10 of part J of chapter 56 of the laws of
2012, are amended to read as follows:
2. A nonhospital order not to resuscitate shall be issued upon a stan-
dard form prescribed by the commissioner. [The commissioner shall also
develop a] A standard bracelet [that] OR OTHER ARTICLE may be worn by a
patient with a nonhospital order not to resuscitate to identify that
status; provided, however, that no person may require a patient to wear
such a bracelet OR OTHER ARTICLE and that no person may require a
patient to wear such a bracelet OR OTHER ARTICLE as a condition for
honoring a nonhospital order not to resuscitate or for providing health
care services.
6. The commissioner may authorize the use of one or more alternative
forms for issuing a nonhospital order not to resuscitate (in place of
the standard form prescribed by the commissioner under subdivision two
of this section). Such alternative form or forms may also be used to
issue a non-hospital do not intubate order. Any such alternative forms
intended for use for persons with developmental disabilities or persons
with mental illness who are incapable of making their own health care
decisions or who have a guardian of the person appointed pursuant to
article eighty-one of the mental hygiene law or article seventeen-A of
the surrogate's court procedure act must also be approved by the commis-
sioner of developmental disabilities or the commissioner of mental
health, as appropriate. An alternative form under this subdivision shall
otherwise conform with applicable federal and state law. This subdivi-
sion does not limit, restrict or impair the use of an alternative form
A. 7571 10
for issuing an order not to resuscitate in a general hospital or resi-
dential health care facility under article twenty-eight of this chapter
or a hospital under subdivision ten of section 1.03 of the mental
hygiene law OR A DEVELOPMENTAL DISABILITIES SERVICES OFFICE UNDER
SECTION 13.17 OF THE MENTAL HYGIENE LAW.
S 27. Section 2994-ff of the public health law, as added by chapter 8
of the laws of 2010, is amended to read as follows:
S 2994-ff. Interinstitutional transfer. If a patient with a nonhospi-
tal order not to resuscitate is admitted to a hospital, the order shall
be treated as an order not to resuscitate for a patient transferred from
another hospital, and shall be governed by article twenty-nine-CC of
this chapter[, except that any such order for a patient admitted to a
mental hygiene facility shall be governed by article twenty-nine-B of
this chapter].
S 28. Section 2994-gg of the public health law, as added by chapter 8
of the laws of 2010, is amended to read as follows:
S 2994-gg. Immunity. No person shall be subjected to criminal prose-
cution or civil liability, or be deemed to have engaged in unprofes-
sional conduct, for honoring reasonably and in good faith pursuant to
this [section] ARTICLE a nonhospital order not to resuscitate, for
disregarding a nonhospital order pursuant to section twenty-nine hundred
ninety-four-ee of this article, or for other actions taken reasonably
and in good faith pursuant to this [section] ARTICLE.
S 29. The section heading of section 1750-b of the surrogate's court
procedure act, as added by chapter 500 of the laws of 2002, is amended
to read as follows:
Health care decisions for [mentally retarded persons] PEOPLE WITH
DEVELOPMENTAL DISABILITIES
S 30. Subdivision 1 of section 1750-b of the surrogate's court proce-
dure act is amended by adding two new paragraphs (d) and (e) to read as
follows:
(D) A PERSON DESCRIBED IN THE FIRST SENTENCE OF PARAGRAPH (A) OF THIS
SUBDIVISION WHO IS FOUND BY THE ATTENDING PHYSICIAN TO HAVE CAPACITY TO
MAKE HIS OR HER OWN HEALTH CARE DECISIONS, PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION FOUR OF THIS SECTION, UPON NOTICE TO THE CHIEF EXECUTIVE
OFFICER OF A RESIDENTIAL FACILITY OPERATED, LICENSED OR AUTHORIZED BY
THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, IN WHICH FACILITY
THE PATIENT RESIDES OR FROM WHICH HE OR SHE WAS TRANSFERRED, AND THE
MENTAL HYGIENE LEGAL SERVICE, MAY MAKE HIS OR HER OWN DECISIONS RELATING
TO LIFE-SUSTAINING TREATMENT.
(E) A PERSON DESCRIBED IN THE FIRST SENTENCE OF PARAGRAPH (A) OF THIS
SECTION WHO HAS A VALID HEALTH CARE PROXY AT THE TIME OF A HEALTH CARE
DECISION, INCLUDING A DECISION INVOLVING LIFE-SUSTAINING TREATMENT,
SHALL HAVE SUCH DECISIONS MADE IN ACCORDANCE WITH ARTICLE TWENTY-NINE-C
OF THE PUBLIC HEALTH LAW. IF FOR ANY REASON THE AGENT OR AN ALTERNATE
AGENT IS NOT REASONABLY AVAILABLE, WILLING AND COMPETENT TO SERVE AND
THE PATIENT IS OTHERWISE ELIGIBLE TO HAVE A DECISION AS TO LIFE-SUSTAIN-
ING TREATMENT MADE PURSUANT TO THIS SECTION, ANY GUARDIAN OR PERSON OR
ENTITY ENTITLED TO EXERCISE THE AUTHORITY OF A GUARDIAN UNDER PARAGRAPH
(A) OF THIS SUBDIVISION MAY MAKE SUCH DECISION.
S 31. Paragraph (a) of subdivision 4 of section 1750-b of the surro-
gate's court procedure act, as added by chapter 500 of the laws of 2002,
subparagraph (i) as amended by section 18 of part J of chapter 56 of the
laws of 2012, is amended to read as follows:
(a) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, must confirm to a
A. 7571 11
reasonable degree of medical certainty that the mentally retarded person
lacks capacity to make health care decisions. The determination thereof
shall be included in the mentally retarded person's medical record, and
shall contain such attending physician's opinion regarding the cause and
nature of the mentally retarded person's incapacity as well as its
extent and probable duration. The attending physician who makes the
confirmation shall consult with another physician, or a licensed
psychologist, to further confirm the mentally retarded person's lack of
capacity. [The] IF THE ATTENDING PHYSICIAN MAKES AN INITIAL DETERMI-
NATION THAT A PATIENT LACKS CAPACITY TO MAKE HEALTH CARE DECISIONS
BECAUSE OF MENTAL RETARDATION, THEN THE attending physician who makes
the confirmation, or the physician or licensed psychologist with whom
the attending physician consults[,] EITHER (I) FOR A PATIENT IN A GENER-
AL HOSPITAL, RESIDENTIAL HEALTH CARE FACILITY OR HOSPICE, must [(i)] BE
QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMINATION, IN
ACCORDANCE WITH POLICIES ADOPTED BY THE GENERAL HOSPITAL, RESIDENTIAL
HEALTH CARE FACILITY OR HOSPICE; OR (II) FOR A PATIENT IN ANY SETTING,
MUST (A) be employed by a developmental disabilities services office
named in section 13.17 of the mental hygiene law or employed by the
office for people with developmental disabilities to provide treatment
and care to people with developmental disabilities, or [(ii)] (B) have
been employed for a minimum of two years to render care and service in a
facility or program operated, licensed or authorized by the office [of
mental retardation and] FOR PEOPLE WITH developmental disabilities, or
[(iii)] (C) have been approved by the commissioner of [mental retarda-
tion and] developmental disabilities in accordance with regulations
promulgated by such commissioner. Such regulations shall require that a
physician or licensed psychologist possess specialized training or three
years experience in treating mental retardation. A record of such
consultation shall be included in the mentally retarded person's medical
record.
S 32. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
section 1750-b of the surrogate's court procedure act, as added by chap-
ter 500 of the laws of 2002, are amended to read as follows:
(i) the mentally retarded person has a medical condition as follows:
A. a terminal condition, [as defined in subdivision twenty-three of
section twenty-nine hundred sixty-one of the public health law] WHICH
SHALL MEAN AN ILLNESS OR INJURY FROM WHICH THERE IS NO RECOVERY, AND
WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
B. permanent unconsciousness; or
C. a medical condition other than such person's mental retardation
which requires life-sustaining treatment, is irreversible and which will
continue indefinitely; [and] OR
D. IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
THAT IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST SUCH RESUSCITATION
WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS; AND
(ii) EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS-
CITATE BASED ON CLAUSE D OF SUBPARAGRAPH (I) OF THIS PARAGRAPH, the
life-sustaining treatment would impose an extraordinary burden on such
person, in light of:
A. such person's medical condition, other than such person's mental
retardation; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's mental retardation; and
A. 7571 12
S 33. Subparagraph (ii) of paragraph (e) of subdivision 4 of section
1750-b of the surrogate's court procedure act, as added by chapter 500
of the laws of 2002, is amended to read as follows:
(ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office [of mental retardation
and] FOR PEOPLE WITH developmental disabilities, the chief executive
officer of the agency or organization operating such facility and the
mental hygiene legal service. NOTIFICATION TO THE FACILITY DIRECTOR AND
THE MENTAL HYGIENE LEGAL SERVICE SHALL NOT DELAY ISSUANCE OF AN ORDER
NOT TO RESUSCITATE; and
S 34. Subdivision 4 of section 1750-b of the surrogate's court proce-
dure act is amended by adding two new paragraphs (f) and (g) to read as
follows:
(F) IN THE CASE OF A PERSON FOR WHOM "GUARDIAN" MEANS A SURROGATE
DECISION-MAKING COMMITTEE PURSUANT TO THIS SECTION, AN ORDER NOT TO
RESUSCITATE MAY BE ENTERED, WITHOUT REVIEW OR APPROVAL BY SUCH COMMIT-
TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR-
RENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAIN-
TY, THAT IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST RESUSCITATION
WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
BEFORE DEATH OCCURS.
(G) FOR A PATIENT RESIDING IN A FACILITY OPERATED, LICENSED OR AUTHOR-
IZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES AS TO WHOM
AN ORDER NOT TO RESUSCITATE HAS BEEN ENTERED, THE ATTENDING PHYSICIAN
SHALL REVIEW WHETHER THE ORDER IS STILL APPROPRIATE AT SUCH TIMES AND IN
SUCH MANNER AS IS PRESCRIBED BY SUBDIVISION FOUR OF SECTION TWENTY-NINE
HUNDRED NINETY-FOUR-DD OF THE PUBLIC HEALTH LAW.
S 35. Paragraph (a) of subdivision 5 of section 1750-b of the surro-
gate's court procedure act is amended by adding a new closing paragraph
to read as follows:
NOTWITHSTANDING THE FOREGOING, IN CASES WHERE THE ATTENDING PHYSICIAN
HAS NOTIFIED THE CHIEF EXECUTIVE OFFICER OF AN AGENCY AND THE MENTAL
HYGIENE LEGAL SERVICE OF THE ENTRY OF AN ORDER NOT TO RESUSCITATE PURSU-
ANT TO SUBPARAGRAPH (II) OF PARAGRAPH (E) OF SUBDIVISION FOUR OF THIS
SECTION, AND IF SUCH NOTICE INCLUDES EITHER THE PHYSICIAN'S STATEMENT OF
THE DIAGNOSTIC AND PROGNOSTIC BASIS FOR THE MEDICAL DETERMINATION IN
SUPPORT OF THE ORDER OR AN EXCERPT FROM THE PATIENT'S MEDICAL RECORD
THAT IS SUFFICIENT TO SUPPORT SUCH DETERMINATION, AN ORDER NOT TO RESUS-
CITATE SHALL NOT BE STAYED BY AN OBJECTION BY THE PERSONS DESCRIBED IN
SUBPARAGRAPHS (V) OR (VI) OF THIS PARAGRAPH UNLESS THE OBJECTION IS
ACCOMPANIED BY (A) A WRITTEN STATEMENT BY THE OBJECTING PARTY SETTING
FORTH A BASIS FOR ASSERTING THAT A STANDARD IN THIS ARTICLE FOR ENTERING
SUCH AN ORDER HAS NOT BEEN MET; AND (B) IF THE BASIS RELATES TO THE
FAILURE TO MEET MEDICAL CRITERIA IN THIS ARTICLE FOR THE ISSUANCE OF THE
ORDER, A WRITTEN STATEMENT BY A HEALTH OR SOCIAL SERVICES PRACTITIONER,
AS DEFINED IN SUBDIVISION SEVENTEEN OF SECTION TWENTY-NINE HUNDRED NINE-
TY-FOUR-A OF THE PUBLIC HEALTH LAW SETTING FORTH THE PROFESSIONAL'S
OPINION, BASED ON HIS OR HER REVIEW OF THE AFOREMENTIONED STATEMENT OR
MEDICAL RECORD EXCERPT AND CONSULTATION WITH THE PATIENT'S ATTENDING
PHYSICIAN, THAT THE MEDICAL CRITERIA IN THIS ARTICLE FOR ENTERING SUCH
ORDER HAS NOT BEEN MET.
S 36. Paragraph (d) of subdivision 5 of section 1750-b of the surro-
gate's court procedure act, as added by chapter 262 of the laws of 2008,
is amended to read as follows:
A. 7571 13
(d) Dispute mediation. In the event of an objection pursuant to this
subdivision, at the request of the objecting party or person or entity
authorized to act as a guardian under this section, except a surrogate
decision making committee established pursuant to article eighty of the
mental hygiene law, such objection shall be referred to [a dispute medi-
ation system, established pursuant to section two thousand nine hundred
seventy-two] AN ETHICS REVIEW COMMITTEE, ESTABLISHED PURSUANT TO SECTION
TWENTY-NINE HUNDRED NINETY-FOUR-M of the public health law or similar
entity for mediating disputes in a hospice, such as a patient's advo-
cate's office[,] OR hospital chaplain's office [or ethics committee], as
described in writing and adopted by the governing authority of such
hospice, for non-binding mediation. In the event that such dispute
cannot be resolved within seventy-two hours or no such mediation entity
exists or is reasonably available for mediation of a dispute, the
objection [shall] MAY proceed to judicial review pursuant to this subdi-
vision. The party requesting mediation shall provide notification to
those parties entitled to notice pursuant to paragraph (a) of this
subdivision.
S 37. This act shall take effect on the ninetieth day after it shall
have become a law, provided that the amendments to article 29-C of the
public health law, made by sections two through ten of this act shall
apply to decisions made pursuant to health care proxies created prior to
the effective date of this act as well as those created thereafter.