senate Bill S7153

2013-2014 Legislative Session

Relates to conforming and improving the process for determining incapacity

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  • Introduced
  • In Committee
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    • Passed Assembly
  • Delivered to Governor
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May 01, 2014 referred to health

S7153 - Bill Details

See Assembly Version of this Bill:
A9671
Current Committee:
Law Section:
Public Health Law
Laws Affected:
Amd §§2983, 2994-c, 2994-cc, 2982 & 2984, Pub Health L; amd §1750-b, SCPA

S7153 - Bill Texts

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Relates to conforming and improving the process for determining incapacity.

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BILL NUMBER:S7153

TITLE OF BILL: An act to amend the public health law and the
surrogate's court procedure act, in relation to conforming and
improving the process for determining incapacity

PURPOSE OR GENERAL IDEA OF BILL:

This is one of a series of seven bills, informally referred to as the
"Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the NYS laws that govern health care decisions,
including life-sustaining treatment decisions, for patients who lack
decision-making capacity. The SDMIAs address these topics:

*SDMIA 1 Technical / Minor Amendments

*SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients
in Mental Hygiene Facilities

*SDMIA 3 Determining Patient Incapacity

*SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition
and Hydration

*SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision

*SDMIA 6 Restore Medical Futility as a Basis for a DNR Order

*SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally
Disabled Persons

This bill, SDMIA 3, amends Public Health Law Articles 29-C, 29-CC and
29-CCC, and Surrogate Court Procedure Act § 1750-b, to conform and
improve procedures for determining patient incapacity to make health
care decisions.

SUMMARY OF SPECIFIC PROVISIONS:

Amendments to PHL Article 29-C
Health Care Proxies and Agents

Section 1 amends PHL Section 2983 to renumber subdivisions 2 - 7 in
order to make room for a new subdivision 2.

Section 2:

*Amends PHL § 2983.1 to make the language and process for determining
incapacity under the health care proxy law more consistent with the
language and process under the Family Health Care Decisions Act.

*Clarifies that a concurring determination is required only for
life-sustaining treatment decisions, even if the determination is
based on a patient's mental illness or developmental disability.


*Adds § 2983.2 to change the qualifications necessary for a
professional to determine that a patient lacks capacity as a result of
a developmental disability by providing that, for a patient in a
hospital, nursing home or hospice, either the attending physician must
be or must consult with either a health or social services
practitioner qualified by training or experience to make such
determination in accordance with written policies adopted by the
hospital, nursing home or hospice, or a person who met the previous
qualification requirements.

Amendments to PHL Article 29-CC
Family Health Care Decisions Act

Section 3 amends PHL § 2994-c.3 to clarify that a concurring
determination is required only for a surrogate decision to withdraw or
withhold life-sustaining treatment, including for cases in nursing
homes, and including cases in which the determination is based on a
patient's mental illness or developmental disability. The section also
changes the qualifications needed to determine that a patient lacks
capacity as a result of a developmental disability, consistent with
Section 2.

Amendments to PHL Article 29-CCC
Non-Hospital Orders Not to
Resuscitate

Section 4 amends PHL § 2994-cc.3, 4 and 5 to eliminate redundant
language and to change "concurrence of a second physician" to
"concurrence of a health or social services practitioner."

Amendments to SCPA § 1750-b
Health Care Decisions For Persons With Mental
Retardation

Section 5 amends SCPA § 1750-b.4(a) to:

*clarify that the attending physician is providing an "initial"
determination of incapacity, not a confirming determination;

*clarify that either the attending physician or the concurring
physician must have special qualifications related to developmental
disabilities only if the attending physician initially determined that
the patient lacked capacity because of the developmental disability;

*change the qualifications necessary for a professional to determine
that a patient in a hospital, nursing home or hospice lacks capacity
as a result of a developmental disability, consistent with Section 2.

Sections 6, 7 and 8 make technical conforming changes to sections
2982, 2984 and 2983 of the public health law.


Effective Date

Section 9 is the effective date.

JUSTIFICATION:

By enacting Chapter 8 of the Laws of 2010, including the Family Health
Care Decisions Act, the Legislature significantly improved the laws in
New York relating to decision-making for patients who lack capacity
and who do not have a health care agent. Specifically, the FHCDA
clarified the authority of a close family member or close friend to
consent to treatment for such patients, and allowed such person to
direct the withdrawal or withholding of life-sustaining treatment in
limited and clearly defined circumstances, based on sound standards.

This bill draws upon growing experience with the FHCDA, and its
interaction with other health care decision-making laws. It makes
technical and coordinating amendments and other improvements to those
laws with respect to determining the incapacity of patients to make
health care decisions.

One important improvement relates o the qualifications of
professionals who can determine the incapacity of a patient based on
developmental disability. Hospitals and nursing homes have found it
extremely difficult to locate professionals with the special
qualifications now required by this law for a determining the
incapacity of a patient with a developmental disability - especially
in urgent or off-hours situations. This amendment would let those
types of providers establish the necessary qualifications for that
service, just as they determine qualifications for other professional
services in their institutions and programs.

PRIOR LEGISLATIVE HISTORY:

S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A. Gottfried)(2013)
included all of these provisions, as well as other provisions.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect ninety days after the date on which this
act shall have become a law. The amendments to article 29-C of the
public health law shall apply to decisions made pursuant to health
care proxies created prior to this act becoming law as well as those
created thereafter.

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

                                  7153

                            I N  S E N A T E

                               May 1, 2014
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law and the surrogate's  court  proce-
  dure  act,  in  relation  to  conforming and improving the process for
  determining incapacity

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

  Section  1.  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 2. 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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13621-02-4

S. 7153                             2

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 PHYSI-
CIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE
OR  ELIGIBLE  TO  BE  CERTIFIED  BY THE AMERICAN BOARD OF PSYCHIATRY 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
QUALIFIED 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  3.  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

S. 7153                             3

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
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 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
subdivision 3 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 chapter 62 of the
laws of 2011, are amended to read as follows:

S. 7153                             4

  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].
  S  5.  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]
SHALL INITIALLY DETERMINE to a reasonable degree  of  medical  certainty
that  the  [mentally  retarded]  DEVELOPMENTALLY  DISABLED  person lacks
capacity to make health care decisions. The determination thereof  shall
be included in the [mentally retarded] DEVELOPMENTALLY DISABLED person's
medical  record,  and  shall  contain such attending physician's opinion
regarding the cause and  nature  of  the  [mentally  retarded]  DEVELOP-
MENTALLY DISABLED person's incapacity as well as its extent and probable
duration.  The  attending  physician  who  makes [the confirmation] SUCH
INITIAL  DETERMINATION  shall  consult  with  another  physician,  or  a
licensed psychologist, to further confirm the [mentally retarded] DEVEL-
OPMENTALLY  DISABLED  person's  lack of capacity. [The] IF THE ATTENDING
PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT  LACKS  CAPACITY
TO  MAKE HEALTH CARE DECISIONS BECAUSE OF DEVELOPMENTAL DISABILITY, 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 GENERAL 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 retardation  and]  developmental
disabilities  in accordance with regulations promulgated by such commis-

S. 7153                             5

sioner. Such regulations shall require  that  a  physician  or  licensed
psychologist  possess  specialized training or three years experience in
treating [mental retardation] DEVELOPMENTAL DISABILITIES.  A  record  of
such  consultation shall be included in the [mentally retarded] DEVELOP-
MENTALLY DISABLED person's medical record.
  S 6. Subdivision 4 of section  2982  of  the  public  health  law,  as
amended  by  chapter  370  of  the  laws  of 1991, is amended to read as
follows:
  4. Priority over other surrogates. Health care decisions by  an  agent
on  a  principal's  behalf  pursuant to this article shall have priority
over decisions by any other person, except as otherwise provided in  the
health  care  proxy or in subdivision [five] SIX of section two thousand
nine hundred eighty-three of this article.
  S 7. Subdivision 2 of section 2984 of the public health law, as  added
by chapter 752 of the laws of 1990, is amended to read as follows:
  2. A health care provider shall comply with health care decisions made
by  an  agent in good faith under a health care proxy to the same extent
as if such decisions had been made by  the  principal,  subject  to  any
limitations  in  the health care proxy and pursuant to the provisions of
subdivision [five] SIX of section two thousand nine hundred eighty-three
of this article.
  S 8.  Paragraph (b) of subdivision 7 of section  2983  of  the  public
health  law, as added by chapter 752 of the laws of 1990 and such subdi-
vision as renumbered by section one of this act, is amended to  read  as
follows:
  (b)  The  notice requirements set forth in subdivision [three] FOUR of
this section shall not apply to the confirmation required by this subdi-
vision.
  S 9.  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 section two of this act  shall  apply  to  the
decisions  made  pursuant  to  health  care proxies created prior to the
effective date of this act as well as those created thereafter.

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