The New York State Senate

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

                                  7713

                            I N  S E N A T E

                            February 9, 2018
                               ___________

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, 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
a new subdivision 2-a to read as follows:
  2-A. "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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD14616-01-8

S. 7713                             2

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 QUALIFIED 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;
  (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.

S. 7713                             3

  (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 OR QUALIFIED PSYCHIATRIC NURSE PRACTITION-
ER.  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.
  (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.

S. 7713                             4

  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  same  date  and  in  the  same
manner  as  chapter 430 of the laws of 2017 takes effect; provided that,
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.

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

                                 7713--A

                            I N  S E N A T E

                            February 9, 2018
                               ___________

Introduced  by  Sen.  HANNON -- 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 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD14616-02-8

S. 7713--A                          2

the  adult's  presence,  and  in the presence of two adult witnesses who
shall sign the proxy. The  witnesses  shall  state  that  the  principal
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

S. 7713--A                          3

expected to become reasonably available, willing and competent to make a
timely decision given the patient's medical circumstances;
  (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

S. 7713--A                          4

record of such consultation shall be included in the  patient's  medical
record.
  (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  same  date  and  in  the  same
manner  as  chapter 430 of the laws of 2017 takes effect; provided that,
effective immediately, any rules and regulations necessary to  implement

S. 7713--A                          5

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.