senate Bill S2908

2013-2014 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 - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to health
returned to senate
died in assembly
Jun 13, 2013 referred to health
delivered to assembly
passed senate
Jun 12, 2013 ordered to third reading cal.1322
committee discharged and committed to rules
Jan 24, 2013 referred to health

Votes

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Jun 17, 2013 - Rules committee Vote

S2908
24
0
committee
24
Aye
0
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Jun 12, 2013 - Rules committee Vote

S2908
24
0
committee
24
Aye
0
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

S2908 - Bill Details

Current Committee:
Law Section:
Public Health Law
Laws Affected:
Amd ยงยง2981 & 2983, Pub Health L
Versions Introduced in 2011-2012 Legislative Session:
S5014A

S2908 - Bill Texts

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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 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.

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

                                  2908

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 24, 2013
                               ___________

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.    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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06391-01-3

S. 2908                             2

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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