S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                 10345--A
                                                         Cal. No. 823
 
                           I N  A S S E M B L Y
 
                              April 13, 2018
                                ___________
 
 Introduced  by M. of A. GOTTFRIED, D'URSO, SKOUFIS, STECK, STIRPE, McDO-
   NALD, McDONOUGH -- Multi-Sponsored by -- M. of A. THIELE -- read  once
   and  referred  to the Committee on Health -- advanced to a third read-
   ing, amended and ordered reprinted, retaining its place on  the  order
   of third reading

 AN  ACT to amend the public health law, in relation to authorizing nurse
   practitioners to witness a health care proxy, act  as  a  health  care
   agent and determine competency of the principal of such a proxy
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 2980 of the public health law is amended by  adding
 three new subdivisions 2-a, 2-b and 2-c to read as follows:
   2-A.  "NURSE  PRACTITIONER" MEANS A NURSE PRACTITIONER CERTIFIED UNDER
 SECTION SIXTY-NINE HUNDRED TEN OF THE EDUCATION LAW,  PRACTICING  WITHIN
 HIS OR HER SCOPE OF PRACTICE.
   2-B.  "PSYCHIATRIC  NURSE  PRACTITIONER"  MEANS  A  NURSE PRACTITIONER
 CERTIFIED BY THE DEPARTMENT OF EDUCATION AS A PSYCHIATRIC NURSE  PRACTI-
 TIONER.
   2-C.  "ATTENDING  NURSE  PRACTITIONER"  MEANS  THE NURSE PRACTITIONER,
 SELECTED BY OR ASSIGNED TO A PATIENT, WHO HAS PRIMARY RESPONSIBILITY FOR
 THE TREATMENT AND CARE OF THE PATIENT. WHERE MORE THAN ONE NURSE PRACTI-
 TIONER SHARES SUCH RESPONSIBILITY, OR  WHERE  A  NURSE  PRACTITIONER  IS
 ACTING  ON  THE  ATTENDING  NURSE  PRACTITIONER'S BEHALF, ANY SUCH NURSE
 PRACTITIONER MAY ACT AS THE ATTENDING  NURSE  PRACTITIONER  PURSUANT  TO
 THIS ARTICLE.
   § 2. Subdivisions 2, 3 and 6 of section 2981 of the public health law,
 as  added  by chapter 752 of the laws of 1990, paragraph (b) of subdivi-
 sion 2 as amended by chapter 23 of the laws of 1994 and paragraph (c) of
 subdivision 2 as amended by section 6 of part J of  chapter  56  of  the
 laws of 2012, are amended to read as follows:
   2.  Health care proxy; execution; witnesses. (a) A competent adult may
 appoint a health care agent by a health care proxy, signed and dated  by
 the adult in the presence of two adult witnesses who shall also sign the
 proxy.  Another  person  may sign and date the health care proxy for the
 adult if the adult is unable to do so, at the adult's direction  and  in
              

 the  adult's  presence,  and  in the presence of two adult witnesses who
 shall sign the proxy. The  witnesses  shall  state  that  the  principal
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14616-04-8

 A. 10345--A                         2
 
 appeared to execute the proxy willingly and free from duress. The person
 appointed  as  agent shall not act as witness to execution of the health
 care proxy.
   (b)  For  persons  who reside in a mental hygiene facility operated or
 licensed by the office of mental health, at least one witness  shall  be
 an individual who is not affiliated with the facility and, if the mental
 hygiene  facility  is  also  a hospital as defined in subdivision ten of
 section 1.03 of the mental hygiene law, at least one witness shall be  a
 qualified psychiatrist OR PSYCHIATRIC NURSE PRACTITIONER.
   (c)  For  persons  who reside in a mental hygiene facility operated or
 licensed by the office for people with  developmental  disabilities,  at
 least  one witness shall be an individual who is not affiliated with the
 facility and at least one witness shall be a  physician,  NURSE  PRACTI-
 TIONER  or  clinical  psychologist  who either is employed by a develop-
 mental 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  regu-
 lations  approved  by  the  commissioner. Such regulations shall require
 that a physician, NURSE PRACTITIONER or  clinical  psychologist  possess
 specialized training or three years experience in treating developmental
 disabilities.
   3.  Restrictions on who may be and limitations on a health care agent.
 (a) An operator, administrator or employee of  a  hospital  may  not  be
 appointed  as  a health care agent by any person who, at the time of the
 appointment, is a patient or resident of, or has applied  for  admission
 to, such hospital.
   (b)  The  restriction  in  paragraph (a) of this subdivision shall not
 apply to:
   (i) an operator, administrator  or  employee  of  a  hospital  who  is
 related to the principal by blood, marriage or adoption; or
   (ii)  a physician OR NURSE PRACTITIONER, subject to the limitation set
 forth in paragraph (c) of this subdivision, except that no physician  OR
 NURSE  PRACTITIONER  affiliated  with  a  mental  hygiene  facility or a
 psychiatric unit of a general hospital may serve as agent for a  princi-
 pal  residing  in  or  being treated by such facility or unit unless the
 physician is related to the principal by blood, marriage or adoption.
   (c) If a physician OR  NURSE  PRACTITIONER  is  appointed  agent,  the
 physician OR NURSE PRACTITIONER shall not act as the patient's attending
 physician  OR ATTENDING NURSE PRACTITIONER after the authority under the
 health care proxy commences, unless the physician OR NURSE  PRACTITIONER
 declines the appointment as agent at or before such time.
   (d) No person who is not the spouse, child, parent, brother, sister or
 grandparent  of  the  principal, or is the issue of, or married to, such
 person, shall be appointed as a health care agent if,  at  the  time  of
 appointment,  he or she is presently appointed health care agent for ten
 principals.
   6. Alternate agent. (a) A competent adult may designate  an  alternate
 agent in the health care proxy to serve in place of the agent when:
   (i) the attending physician OR ATTENDING NURSE PRACTITIONER has deter-
 mined  in  a  writing  signed by the physician OR NURSE PRACTITIONER (A)
 that the person appointed as agent is not reasonably available,  willing
 and  competent  to  serve  as  agent,  and  (B)  that such person is not
 expected to become reasonably available, willing and competent to make a
 timely decision given the patient's medical circumstances;

 A. 10345--A                         3
 
   (ii) the agent is disqualified from acting on the  principal's  behalf
 pursuant  to  subdivision  three  of  this section or subdivision two of
 section two thousand nine hundred ninety-two of this article, or
   (iii) under conditions set forth in the proxy.
   (b)  If,  after  an  alternate agent's authority commences, the person
 appointed as agent becomes available, willing and competent to serve  as
 agent:
   (i) the authority of the alternate agent shall cease and the authority
 of the agent shall commence; and
   (ii)  the  attending  physician  OR ATTENDING NURSE PRACTITIONER shall
 record the change in agent and the reasons therefor in  the  principal's
 medical record.
   § 3. Section 2983 of the public health law, as added by chapter 752 of
 the  laws  of 1990, paragraph (b) of subdivision 1 as amended by chapter
 23 of the laws of 1994 and paragraph (c) of subdivision 1 as amended  by
 section  7  of  part  J of chapter 56 of the laws of 2012, is amended to
 read as follows:
   § 2983. Determination of lack of capacity to make  health  care  deci-
 sions  for the purpose of empowering agent. 1.  Determination by attend-
 ing physician OR ATTENDING NURSE PRACTITIONER. (a) A determination  that
 a  principal  lacks capacity to make health care decisions shall be made
 by the attending physician OR ATTENDING NURSE PRACTITIONER to a  reason-
 able  degree  of  medical  certainty. The determination shall be made in
 writing and shall contain such attending physician's OR ATTENDING  NURSE
 PRACTITIONER'S opinion regarding the cause and nature of the principal's
 incapacity  as  well  as  its extent and probable duration. The determi-
 nation shall be included in the patient's medical record. For a decision
 to withdraw or withhold life-sustaining treatment, the attending  physi-
 cian  OR ATTENDING NURSE PRACTITIONER who makes the determination that a
 principal lacks capacity to make health care decisions must consult with
 another physician OR NURSE PRACTITIONER to confirm  such  determination.
 Such  consultation  shall  also be included within the patient's medical
 record.
   (b) If an attending physician OR ATTENDING  NURSE  PRACTITIONER  of  a
 patient in a general hospital or mental hygiene facility determines that
 a patient lacks capacity because of mental illness, the attending physi-
 cian  OR  ATTENDING  NURSE PRACTITIONER who makes the determination must
 be, or must consult, for the purpose of  confirming  the  determination,
 with  a  qualified  psychiatrist. A record of such consultation shall be
 included in the patient's medical record.
   (c) If the attending physician OR ATTENDING NURSE PRACTITIONER  deter-
 mines that a patient lacks capacity because of a developmental disabili-
 ty,  the  attending  physician OR ATTENDING NURSE PRACTITIONER who makes
 the determination must be, or must consult, for the purpose of  confirm-
 ing  the determination, with a physician, NURSE PRACTITIONER 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  devel-
 opmental  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,
 NURSE PRACTITIONER 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.

 A. 10345--A                         4
 
   (d)  A  physician  OR  NURSE  PRACTITIONER who has been appointed as a
 patient's agent shall not make the determination of the patient's capac-
 ity to make health care decisions.
   2.  Request for a determination. If requested by the agent, an attend-
 ing physician OR ATTENDING NURSE PRACTITIONER shall make a determination
 regarding the principal's capacity to make health care decisions for the
 purposes of this article.
   3. 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;  (c)  if  the  principal  is  in  or is transferred from a mental
 hygiene facility, to the facility director; and (d) to  the  conservator
 for, or committee of, the principal.
   4.  Limited purpose of determination. A determination made pursuant to
 this section that a principal lacks capacity to make health  care  deci-
 sions shall not be construed as a finding that the patient lacks capaci-
 ty for any other purpose.
   5.  Priority  of principal's decision. Notwithstanding a determination
 pursuant to this section that  the  principal  lacks  capacity  to  make
 health care decisions, where a principal objects to the determination of
 incapacity  or  to  a health care decision made by an agent, the princi-
 pal's objection or decision shall prevail unless the principal is deter-
 mined by a court of competent jurisdiction  to  lack  capacity  to  make
 health care decisions.
   6.  Confirmation  of  lack of capacity. (a) The attending physician OR
 ATTENDING NURSE PRACTITIONER shall  confirm  the  principal's  continued
 incapacity before complying with an agent's health care decisions, other
 than  those  decisions made at or about the time of the initial determi-
 nation made pursuant to subdivision one of this section.  The  confirma-
 tion shall be stated in writing and shall be included in the principal's
 medical record.
   (b)  The  notice  requirements  set forth in subdivision three of this
 section shall not apply to the confirmation required  by  this  subdivi-
 sion.
   7.  Effect  of recovery of capacity. In the event the attending physi-
 cian OR ATTENDING NURSE PRACTITIONER determines that the  principal  has
 regained  capacity,  the  authority  of the agent shall cease, but shall
 recommence if the principal subsequently loses  capacity  as  determined
 pursuant to this section.
   §  4. Subdivision 2 of section 2985 of the public health law, as added
 by chapter 752 of the laws of 1990, is amended to read as follows:
   2. Duty to record revocation.  (a) A physician OR  NURSE  PRACTITIONER
 who  is informed of or provided with a revocation of a health care proxy
 shall immediately (i) record the revocation in the  principal's  medical
 record  and  (ii) notify the agent and the medical staff responsible for
 the principal's care of the revocation.
   (b) Any member of the staff of a health care provider informed  of  or
 provided  with  a  revocation  of  a  health care proxy pursuant to this
 section shall immediately notify a physician OR  NURSE  PRACTITIONER  of
 such revocation.
   §  5.  This  act shall take effect on the ninetieth day after it shall
 have become a law.   Effective immediately, any  rules  and  regulations
 necessary  to implement the provisions of this act on its effective date
 are authorized and directed to be amended, repealed  and/or  promulgated
 on or before such date.