S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1150
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 14, 2019
                                ___________
 
 Introduced  by M. of A. GOTTFRIED, ABINANTI -- read once and referred to
   the Committee on Health
 
 AN ACT to amend the public health law, in relation to protecting patient
   health care decisions
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  The  public health law is amended by adding a new section
 2999-a-1 to read as follows:
   § 2999-A-1. PROTECTION OF PATIENT HEALTH CARE  DECISIONS.  1.    DEFI-
 NITIONS. AS USED IN THIS SECTION, THE FOLLOWING TERMS HAVE THE FOLLOWING
 MEANING:
   (A)  "PATIENT  HEALTH  CARE  DECISION"  MEANS AN INDIVIDUAL'S DECISION
 (HOWEVER EXPRESSED OR RECORDED) TO CONSENT TO, REFUSE CONSENT TO,  WITH-
 DRAW  CONSENT  TO,  OR  DEMAND  ANY  HEALTH CARE SERVICE OR TREATMENT OR
 HEALTH CARE RESEARCH TO BE PROVIDED TO OR PARTICIPATED IN BY  THE  INDI-
 VIDUAL, WHICH A HEALTH CARE PROVIDER IS LEGALLY REQUIRED TO ADHERE TO OR
 ACCOMMODATE,  AND  OF WHICH THE HEALTH CARE PROVIDER KNOWS OR REASONABLY
 SHOULD KNOW.
   (B) "PATIENT" MEANS THE INDIVIDUAL WHO IS OR WOULD BE THE RECIPIENT OF
 THE HEALTH CARE SERVICE OR TREATMENT OR THE SUBJECT OF THE  HEALTH  CARE
 RESEARCH.  WHERE  A PATIENT LACKS CAPACITY TO MAKE A PATIENT HEALTH CARE
 DECISION AND AN INDIVIDUAL WHO HAS LEGAL AUTHORITY  TO  DO  SO  LAWFULLY
 MAKES THE PATIENT HEALTH CARE DECISION, THE PATIENT HEALTH CARE DECISION
 SHALL  BE DEEMED, FOR PURPOSES OF THIS SECTION, TO BE THE PATIENT HEALTH
 CARE DECISION OF THE PATIENT.
   (C) "HEALTH CARE" INCLUDES BOTH PHYSICAL AND MENTAL HEALTH CARE.
   (D) "HEALTH CARE PROVIDER"  MEANS  AN  INDIVIDUAL  OR  ENTITY  LEGALLY
 AUTHORIZED  TO  PROVIDE  A HEALTH CARE SERVICE OR TREATMENT OR ENGAGE IN
 HEALTH CARE RESEARCH.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03495-01-9

              

 A. 1150                             2
 
   2. IN A JUDICIAL OR ADMINISTRATIVE ACTION OR PROCEEDING RELATING TO  A
 HEALTH  CARE PROVIDER'S FAILURE OR REFUSAL TO ADHERE TO OR ACCOMMODATE A
 PATIENT'S PATIENT HEALTH CARE DECISION:
   (A)  THE  ACTION  OR PROCEEDING SHALL NOT BE BARRED BECAUSE THE HEALTH
 CARE PROVIDER'S FAILURE  OR  REFUSAL  TO  ADHERE  TO  OR  ACCOMMODATE  A
 PATIENT'S  HEALTH  CARE  DECISION  (I)  DID  NOT CAUSE PHYSICAL, MENTAL,
 EMOTIONAL, OR ECONOMIC INJURY TO THE PATIENT OR (II) IMPROVED THE  PHYS-
 ICAL,  MENTAL, OR EMOTIONAL CONDITION OF THE PATIENT. HOWEVER, THE PRES-
 ENCE OR ABSENCE OF SUCH INJURY OR IMPROVEMENT MAY BE CONSIDERED  IN  THE
 MEASURE OF DAMAGES, PENALTY OR OTHER RELIEF.
   (B)  A COURT MAY AWARD DAMAGES FOR EACH DAY THE HEALTH CARE PROVIDER'S
 FAILURE OR REFUSAL TO ADHERE TO OR ACCOMMODATE A PATIENT'S  HEALTH  CARE
 DECISION  IN  THE  AMOUNT  OF  TWO THOUSAND DOLLARS FOR EACH DAY OR SUCH
 OTHER AMOUNT AS THE COURT MAY DEEM JUST.
   (C) A WAIVER BY OR ON BEHALF OF A PATIENT OF THE  RIGHT  TO  BRING  AN
 ACTION  OR  PROCEEDING  UNDER  THIS  SUBDIVISION SHALL BE AGAINST PUBLIC
 POLICY AND SHALL BE VOID.
   (D) LAWS AND RULES RELATING TO  CIVIL  ACTIONS  OR  PROCEEDINGS  SHALL
 APPLY, EXCEPT AS EXPLICITLY PROVIDED OTHERWISE IN THIS SECTION.
   3.  THIS  SECTION  SHALL  NOT  CHANGE  THE  AUTHORITY OF A HEALTH CARE
 PROVIDER TO PROVIDE A HEALTH CARE SERVICE OR TREATMENT IN THE ABSENCE OF
 OR CONTRARY TO A PATIENT'S CONSENT, WHERE AUTHORIZED BY LAW.
   4. NO HEALTH CARE PROVIDER SHALL SEEK OR ACCEPT PAYMENT OR  REIMBURSE-
 MENT  FROM  OR  ON  BEHALF  OF  THE PATIENT OR A THIRD-PARTY PAYER FOR A
 HEALTH CARE SERVICE OR TREATMENT THAT IS PROVIDED IN THE ABSENCE  OF  OR
 CONTRARY TO THE PATIENT'S CONSENT, UNLESS IT WAS AUTHORIZED BY LAW TO BE
 PROVIDED IN THE ABSENCE OF OR CONTRARY TO THE PATIENT'S CONSENT.
   § 2. This act shall take effect immediately.