S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4841
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 27, 2019
                                ___________
 
 Introduced  by  Sen.  RIVERA -- 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  execution  of
   orders  not  to  resuscitate  and orders pertaining to life sustaining
   treatments; and to repeal certain  provisions  of  such  law  relating
   thereto

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 2960 of the public health law, as amended by  chap-
 ter 430 of the laws of 2017, is amended to read as follows:
   §  2960. Legislative findings and purpose. The legislature finds that,
 although cardiopulmonary resuscitation  has  proved  invaluable  in  the
 prevention of sudden, unexpected death, it is appropriate for an attend-
 ing  [physician  or  attending  nurse]  practitioner, in certain circum-
 stances, to issue an order not to attempt cardiopulmonary  resuscitation
 of  a patient where appropriate consent has been obtained.  The legisla-
 ture further finds that there is a need to  clarify  and  establish  the
 rights  and  obligations  of  patients,  their families, and health care
 providers regarding cardiopulmonary resuscitation and  the  issuance  of
 orders not to resuscitate.
   §  2.  Subdivisions  2,  5 and 20 of section 2961 of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:
   2.  "Attending  [physician]  PRACTITIONER"  means the physician, NURSE
 PRACTITIONER, OR PHYSICIAN ASSISTANT, LICENSED OR CERTIFIED PURSUANT  TO
 TITLE  EIGHT  OF THE EDUCATION LAW, selected by or assigned to a patient
 in a hospital who has primary responsibility for the treatment and  care
 of  the  patient.  Where more than one physician [and/or], nurse practi-
 tioner, OR PHYSICIAN ASSISTANT  shares  such  responsibility,  any  such
 physician  [or],  nurse  practitioner, OR PHYSICIAN ASSISTANT may act as
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03858-04-9
              

 S. 4841                             2
 
 the attending [physician or attending nurse]  practitioner  pursuant  to
 this article.
   5.  "Close  friend"  means any person, eighteen years of age or older,
 who is a close friend of the patient, or relative of the patient  (other
 than  a  spouse,  adult  child, parent, brother or sister) who has main-
 tained such regular contact with the patient as to be familiar with  the
 patient's  activities,  health,  and  religious or moral beliefs and who
 presents a signed statement to that effect to the  attending  [physician
 or attending nurse] practitioner.
   20.  "Reasonably available" means that a person to be contacted can be
 contacted with diligent efforts by an  attending  [physician,  attending
 nurse]  practitioner or another person acting on behalf of the attending
 [physician, attending nurse] practitioner or the hospital.
   § 3. Subdivision 2-a of section 2961  of  the  public  health  law  is
 REPEALED.
   § 4. Subdivisions 2 and 3 of section 2962 of the public health law, as
 amended  by  chapter  430  of  the  laws of 2017, are amended to read as
 follows:
   2. It shall be lawful for the attending [physician or attending nurse]
 practitioner to issue an order not to resuscitate  a  patient,  provided
 that  the  order  has  been  issued pursuant to the requirements of this
 article. The order shall be included in writing in the patient's  chart.
 An order not to resuscitate shall be effective upon issuance.
   3.  Before  obtaining,  pursuant  to  this article, the consent of the
 patient, or of the surrogate of the patient, or parent or legal guardian
 of the minor patient, to an order  not  to  resuscitate,  the  attending
 [physician  or attending nurse] practitioner shall provide to the person
 giving consent information about the patient's diagnosis and  prognosis,
 the  reasonably foreseeable risks and benefits of cardiopulmonary resus-
 citation for the patient, and the consequences of an order not to resus-
 citate.
   § 5. Section 2963 of the public health law, as amended by chapter  430
 of the laws of 2017, is amended to read as follows:
   §  2963.  Determination  of  capacity  to  make  a  decision regarding
 cardiopulmonary resuscitation. 1. Every adult shall be presumed to  have
 the  capacity to make a decision regarding cardiopulmonary resuscitation
 unless determined otherwise pursuant to this section or  pursuant  to  a
 court  order  or  unless a guardian is authorized to decide about health
 care for the adult pursuant to article eighty-one of the mental  hygiene
 law  or  article seventeen-A of the surrogate's court procedure act. The
 attending [physician or attending nurse] practitioner shall not rely  on
 the  presumption stated in this subdivision if clinical indicia of inca-
 pacity are present.
   2. A determination that an adult patient lacks capacity shall be  made
 by  the  attending  [physician  or  attending  nurse]  practitioner to a
 reasonable 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
 patient's  incapacity  as  well as its extent and probable duration. The
 determination shall be included in the patient's medical chart.
   3. (a) At least one other physician, selected by a  person  authorized
 by the hospital to make such selection, must concur in the determination
 that an adult lacks capacity. The concurring determination shall be made
 in  writing  after personal examination of the patient and shall contain
 the physician's opinion regarding the cause and nature of the  patient's

 S. 4841                             3
 
 incapacity  as well as its extent and probable duration. Each concurring
 determination shall be included in the patient's medical chart.
   (b)  If  the  attending  [physician  or  attending nurse] practitioner
 determines that a patient lacks capacity because of mental illness,  the
 concurring  determination  required by paragraph (a) of this subdivision
 shall be provided by 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.
   (c)  If  the  attending  [physician  or  attending nurse] practitioner
 determines that a patient lacks  capacity  because  of  a  developmental
 disability,  the  concurring  determination required by paragraph (a) of
 this subdivision shall  be  provided  by  a  physician  or  psychologist
 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
 who 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  psychologist  possess
 specialized training or three years experience in treating developmental
 disabilities.
   4.  Notice  of  a  determination that the patient lacks capacity shall
 promptly be given (a) to the patient, where there is any  indication  of
 the patient's ability to comprehend such notice, together with a copy of
 a  statement  prepared  in  accordance  with section twenty-nine hundred
 seventy-eight of this article, and (b) to the person  on  the  surrogate
 list highest in order of priority listed, when persons in prior subpara-
 graphs  are  not reasonably available. Nothing in this subdivision shall
 preclude or require notice to more than  one  person  on  the  surrogate
 list.
   5.  A  determination  that a patient lacks capacity to make a decision
 regarding an order not to resuscitate pursuant to this section shall not
 be construed as a finding that the patient lacks capacity for any  other
 purpose.
   §  6.  Subdivision  2  of  section  2964  of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
 follows:
   2.  (a)  During  hospitalization, an adult with capacity may express a
 decision consenting to an order not to resuscitate orally in  the  pres-
 ence  of  at  least two witnesses eighteen years of age or older, one of
 whom is a physician [or], nurse  practitioner,  OR  PHYSICIAN  ASSISTANT
 affiliated  with the hospital in which the patient is being treated. Any
 such decision shall be recorded in the patient's medical chart.
   (b) Prior to or during hospitalization, an  adult  with  capacity  may
 express a decision consenting to an order not to resuscitate in writing,
 dated  and  signed  in  the  presence of at least two witnesses eighteen
 years of age or older who shall sign the decision.
   (c) An attending [physician or attending nurse]  practitioner  who  is
 provided  with  or  informed  of a decision pursuant to this subdivision
 shall record or include the decision in the patient's medical  chart  if
 the decision has not been recorded or included, and either:
   (i) promptly issue an order not to resuscitate the patient or issue an
 order  at such time as the conditions, if any, specified in the decision

 S. 4841                             4
 
 are met, and inform the hospital staff  responsible  for  the  patient's
 care of the order; or
   (ii)  promptly  make  his  or her objection to the issuance of such an
 order and the reasons therefor known to the patient and either make  all
 reasonable efforts to arrange for the transfer of the patient to another
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT, if necessary,
 or promptly submit the matter to the dispute mediation system.
   (d)  Prior  to  issuing  an order not to resuscitate a patient who has
 expressed a decision consenting to an order  not  to  resuscitate  under
 specified  medical  conditions,  the  attending  [physician or attending
 nurse] practitioner must make a determination, to a reasonable degree of
 medical certainty, that such conditions exist, and include the  determi-
 nation in the patient's medical chart.
   § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
 amended  by  chapter  430  of  the  laws of 2017, are amended to read as
 follows:
   3. (a) The surrogate shall make a decision  regarding  cardiopulmonary
 resuscitation  on  the  basis  of the adult patient's wishes including a
 consideration of the patient's religious and moral beliefs, or,  if  the
 patient's  wishes are unknown and cannot be ascertained, on the basis of
 the patient's best interests.
   (b) Notwithstanding any law to the contrary, the surrogate shall  have
 the same right as the patient to receive medical information and medical
 records.
   (c)  A  surrogate may consent to an order not to resuscitate on behalf
 of an adult patient only if there has been a determination by an attend-
 ing [physician or attending nurse] practitioner with the concurrence  of
 another  physician  [or],  nurse  practitioner  OR  PHYSICIAN  ASSISTANT
 selected by a person authorized by the hospital to make such  selection,
 given  after  personal  examination of the patient that, to a reasonable
 degree of medical certainty:
   (i) the patient has a terminal condition; or
   (ii) the patient is permanently unconscious; or
   (iii) resuscitation would be medically futile; or
   (iv) resuscitation would impose an extraordinary burden on the patient
 in light of the patient's medical condition and the expected outcome  of
 resuscitation for the patient.
   Each determination shall be included in the patient's medical chart.
   4. (a) A surrogate shall express a decision consenting to an order not
 to  resuscitate either (i) in writing, dated, and signed in the presence
 of one witness eighteen years of age or older who shall sign  the  deci-
 sion, or (ii) orally, to two persons eighteen years of age or older, one
 of  whom  is a physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
 affiliated with the hospital in which the patient is being treated.  Any
 such decision shall be recorded in the patient's medical chart.
   (b)  The  attending [physician or attending nurse] practitioner who is
 provided with the decision of a surrogate shall include the decision  in
 the  patient's  medical chart and, if the surrogate has consented to the
 issuance of an order not to resuscitate, shall either:
   (i) promptly issue an order not to resuscitate the patient and  inform
 the hospital staff responsible for the patient's care of the order; or
   (ii)  promptly  make  the  attending  [physician's or attending nurse]
 practitioner's objection to the issuance of such an order known  to  the
 surrogate  and  either  make  all  reasonable efforts to arrange for the
 transfer of the patient to another physician [or], nurse practitioner OR

 S. 4841                             5
 
 PHYSICIAN ASSISTANT, if necessary, or promptly refer the matter  to  the
 dispute mediation system.
   (c)  If  the attending [physician or attending nurse] practitioner has
 actual notice of opposition to a surrogate's consent to an order not  to
 resuscitate  by  any  person  on the surrogate list, the physician [or],
 nurse practitioner OR PHYSICIAN ASSISTANT shall submit the matter to the
 dispute mediation system and such order shall not be issued or shall  be
 revoked  in  accordance  with  the  provisions  of  subdivision three of
 section twenty-nine hundred seventy-two of this article.
   § 8. Section 2966 of the public health law, as amended by chapter  430
 of the laws of 2017, is amended to read as follows:
   § 2966. Decision-making on behalf of an adult patient without capacity
 for  whom  no  surrogate  is available. 1. If no surrogate is reasonably
 available, willing to make a decision regarding issuance of an order not
 to resuscitate, and competent to make a decision regarding  issuance  of
 an  order  not  to  resuscitate  on behalf of an adult patient who lacks
 capacity and who had  not  previously  expressed  a  decision  regarding
 cardiopulmonary  resuscitation,  an  attending  [physician  or attending
 nurse] practitioner (a) may  issue  an  order  not  to  resuscitate  the
 patient,  provided  that  the  attending  [physician or attending nurse]
 practitioner determines, in writing, that, to  a  reasonable  degree  of
 medical  certainty, resuscitation would be medically futile, and another
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT selected by  a
 person authorized by the hospital to make such selection, after personal
 examination  of  the  patient,  reviews and concurs in writing with such
 determination, or, (b) shall issue  an  order  not  to  resuscitate  the
 patient,  provided  that, pursuant to subdivision one of section twenty-
 nine hundred seventy-six of this article, a court has granted a judgment
 directing the issuance of such an order.
   2. Notwithstanding any other provision of this section, where a  deci-
 sion  to consent to an order not to resuscitate has been made, notice of
 the decision shall be given to the patient where there is any indication
 of the patient's ability to  comprehend  such  notice.  If  the  patient
 objects, an order not to resuscitate shall not be issued.
   §  9. Section 2967 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   § 2967. Decision-making on behalf of a minor patient. 1. An  attending
 [physician  or  attending  nurse]  practitioner,  in consultation with a
 minor's parent or legal guardian, shall determine whether  a  minor  has
 the capacity to make a decision regarding resuscitation.
   2.  (a)  The  consent  of  a  minor's parent or legal guardian and the
 consent of the minor, if the minor has capacity, must be obtained  prior
 to issuing an order not to resuscitate the minor.
   (b)  Where  the  attending [physician or attending nurse] practitioner
 has reason to believe that there is another parent  or  a  non-custodial
 parent  who has not been informed of a decision to issue an order not to
 resuscitate the minor, the  attending  [physician  or  attending  nurse]
 practitioner, or someone acting on behalf of the [attending physician or
 attending  nurse]  practitioner, shall make reasonable efforts to deter-
 mine if the uninformed parent or  non-custodial  parent  has  maintained
 substantial and continuous contact with the minor and, if so, shall make
 diligent  efforts  to  notify that parent or non-custodial parent of the
 decision prior to issuing the order.
   3. A parent or legal guardian may consent to an order not to  resusci-
 tate on behalf of a minor only if there has been a written determination
 by  the  attending [physician or attending nurse] practitioner, with the

 S. 4841                             6
 
 written concurrence of another physician  [or],  nurse  practitioner  OR
 PHYSICIAN  ASSISTANT  selected by a person authorized by the hospital to
 make such selections given after personal examination  of  the  patient,
 that,  to  a  reasonable  degree of medical certainty, the minor suffers
 from one of the medical conditions set forth in paragraph (c) of  subdi-
 vision  three of section twenty-nine hundred sixty-five of this article.
 Each determination shall be included in the patient's medical chart.
   4. (a) A parent or legal guardian of a minor,  in  making  a  decision
 regarding   cardiopulmonary  resuscitation,  shall  consider  the  minor
 patient's wishes, including a consideration of the minor patient's reli-
 gious and moral beliefs, and shall  express  a  decision  consenting  to
 issuance of an order not to resuscitate either (i) in writing, dated and
 signed in the presence of one witness eighteen years of age or older who
 shall  sign  the decision, or (ii) orally, to two persons eighteen years
 of age or older, one of whom is a physician [or], nurse practitioner  OR
 PHYSICIAN ASSISTANT affiliated with the hospital in which the patient is
 being  treated.  Any  such  decision  shall be recorded in the patient's
 medical chart.
   (b) The attending [physician or attending nurse] practitioner  who  is
 provided  with  the  decision  of  a  minor's  parent or legal guardian,
 expressed pursuant to this subdivision, and of the minor  if  the  minor
 has  capacity,  shall  include such decision or decisions in the minor's
 medical chart and shall comply with the provisions of paragraph  (b)  of
 subdivision four of section twenty-nine hundred sixty-five of this arti-
 cle.
   (c)  If  the attending [physician or attending nurse] practitioner has
 actual notice of the opposition of a parent or non-custodial  parent  to
 consent  by  another  parent to an order not to resuscitate a minor, the
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT  shall  submit
 the  matter  to the dispute mediation system and such order shall not be
 issued or shall be revoked in accordance with the provisions of subdivi-
 sion three of section twenty-nine hundred seventy-two of this article.
   § 10. Section 2969 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   § 2969. Revocation of consent to order not to resuscitate. 1. A person
 may, at any time, revoke his or her consent to an order not to  resusci-
 tate  himself  or herself by making either a written or an oral declara-
 tion to a physician or member of the nursing staff at the hospital where
 he or she is being treated, or by any other act  evidencing  a  specific
 intent to revoke such consent.
   2. Any surrogate, parent, or legal guardian may at any time revoke his
 or her consent to an order not to resuscitate a patient by (a) notifying
 a  physician or member of the nursing staff of the revocation of consent
 in writing, dated and signed, or  (b)  orally  notifying  the  attending
 [physician or attending nurse] practitioner in the presence of a witness
 eighteen years of age or older.
   3.  Any  physician [or], nurse practitioner OR PHYSICIAN ASSISTANT who
 is informed of or provided with a revocation of consent pursuant to this
 section shall immediately include the revocation in the patient's chart,
 cancel the order, and notify the  hospital  staff  responsible  for  the
 patient's  care  of  the  revocation and cancellation. Any member of the
 nursing staff, other than a nurse practitioner OR  PHYSICIAN  ASSISTANT,
 who  is informed of or provided with a revocation of consent pursuant to
 this section shall immediately notify a physician  [or],  nurse  practi-
 tioner OR PHYSICIAN ASSISTANT of such revocation.

 S. 4841                             7
 
   § 11. Section 2970 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   §  2970.  Physician  [and], nurse practitioner AND PHYSICIAN ASSISTANT
 review of the order not to resuscitate. 1. For each patient for whom  an
 order  not  to  resuscitate has been issued, the attending [physician or
 attending nurse] practitioner shall review the patient's chart to deter-
 mine if the order is still appropriate in light of the patient's  condi-
 tion  and  shall indicate on the patient's chart that the order has been
 reviewed each time the patient is required to be seen by a physician but
 at least every sixty days.
   Failure to comply with this subdivision shall not render an order  not
 to resuscitate ineffective.
   2.  (a)  If  the attending [physician or attending nurse] practitioner
 determines at any time that an order not to  resuscitate  is  no  longer
 appropriate  because  the  patient's medical condition has improved, the
 physician [or], nurse practitioner OR PHYSICIAN  ASSISTANT  shall  imme-
 diately notify the person who consented to the order. Except as provided
 in  paragraph (b) of this subdivision, if such person declines to revoke
 consent to the order, the physician [or], nurse practitioner  OR  PHYSI-
 CIAN ASSISTANT shall promptly (i) make reasonable efforts to arrange for
 the  transfer  of  the  patient  to another physician or (ii) submit the
 matter to the dispute mediation system.
   (b) If the order not to resuscitate was entered upon the consent of  a
 surrogate,  parent,  or  legal  guardian and the attending [physician or
 attending nurse] practitioner who issued the order, or, if  unavailable,
 another  attending  [physician  or  attending nurse] practitioner at any
 time determines that the patient does not suffer from one of the medical
 conditions set forth in paragraph (c) of subdivision  three  of  section
 twenty-nine hundred sixty-five of this article, the attending [physician
 or attending nurse] practitioner shall immediately include such determi-
 nation  in  the patient's chart, cancel the order, and notify the person
 who consented to the order and all hospital staff  responsible  for  the
 patient's care of the cancellation.
   (c)  If  an order not to resuscitate was entered upon the consent of a
 surrogate and the patient at any time gains  or  regains  capacity,  the
 attending  [physician  or  attending  nurse] practitioner who issued the
 order, or, if unavailable, another  attending  [physician  or  attending
 nurse]  practitioner  shall  immediately cancel the order and notify the
 person who consented to  the  order  and  all  hospital  staff  directly
 responsible for the patient's care of the cancellation.
   §  12.  The opening paragraph and subdivision 2 of section 2971 of the
 public health law, as amended by chapter 430 of the laws  of  2017,  are
 amended to read as follows:
   If  a  patient for whom an order not to resuscitate has been issued is
 transferred from a hospital to a  different  hospital  the  order  shall
 remain  effective,  unless  revoked  pursuant to this article, until the
 attending [physician or attending nurse] practitioner first examines the
 transferred patient, whereupon the  attending  [physician  or  attending
 nurse] practitioner must either:
   2. Cancel the order not to resuscitate, provided the attending [physi-
 cian  or  attending  nurse] practitioner immediately notifies the person
 who consented to the order and the hospital staff  directly  responsible
 for  the  patient's care of the cancellation. Such cancellation does not
 preclude the entry of a new order pursuant to this article.

 S. 4841                             8
 
   § 13. Subdivisions 1, 2 and 4 of section 2972  of  the  public  health
 law,  as amended by chapter 430 of the laws of 2017, are amended to read
 as follows:
   1.  (a)  Each  hospital  shall  establish  a  mediation system for the
 purpose of mediating disputes regarding the issuance of  orders  not  to
 resuscitate.
   (b)  The  dispute  mediation  system shall be described in writing and
 adopted by the hospital's governing authority. It may  utilize  existing
 hospital  resources,  such  as  a  patient advocate's office or hospital
 chaplain's office, or it may utilize a  body  created  specifically  for
 this  purpose,  but, in the event a dispute involves a patient deemed to
 lack capacity pursuant to (i) paragraph  (b)  of  subdivision  three  of
 section twenty-nine hundred sixty-three of this article, the system must
 include  a  physician  [or],  nurse  practitioner OR PHYSICIAN ASSISTANT
 eligible to provide a concurring determination pursuant to such subdivi-
 sion, or a family member or guardian of the person of a  person  with  a
 mental  illness  of the same or similar nature, or (ii) paragraph (c) of
 subdivision three of section twenty-nine  hundred  sixty-three  of  this
 article, the system must include a physician [or], nurse practitioner OR
 PHYSICIAN  ASSISTANT  eligible  to  provide  a  concurring determination
 pursuant to such subdivision, or a family  member  or  guardian  of  the
 person  of a person with a developmental disability of the same or simi-
 lar nature.
   2. The dispute mediation system shall be  authorized  to  mediate  any
 dispute, including disputes regarding the determination of the patient's
 capacity,  arising under this article between the patient and an attend-
 ing [physician, attending nurse] practitioner or the  hospital  that  is
 caring  for  the  patient  and, if the patient is a minor, the patient's
 parent, or among an attending [physician, an  attending  nurse]  practi-
 tioner,  a  parent,  non-custodial  parent, or legal guardian of a minor
 patient, any person on the surrogate list,  and  the  hospital  that  is
 caring for the patient.
   4.  If  a dispute between a patient who expressed a decision rejecting
 cardiopulmonary resuscitation and  an  attending  [physician,  attending
 nurse]  practitioner  or  the hospital that is caring for the patient is
 submitted to the dispute mediation system, and either:
   (a) the dispute mediation system has concluded its efforts to  resolve
 the dispute, or
   (b) seventy-two hours have elapsed from the time of submission without
 resolution  of  the  dispute, whichever shall occur first, the attending
 [physician or attending nurse] practitioner shall either:  (i)  promptly
 issue an order not to resuscitate the patient or issue the order at such
 time  as  the conditions, if any, specified in the decision are met, and
 inform the hospital staff responsible for  the  patient's  care  of  the
 order;  or  (ii)  promptly  arrange  for  the transfer of the patient to
 another physician, nurse practitioner, PHYSICIAN ASSISTANT or hospital.
   § 14. Subdivision 1 of section 2973  of  the  public  health  law,  as
 amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
 follows:
   1. The patient, an attending [physician, attending nurse]  practition-
 er,  a  parent,  non-custodial  parent,  or  legal  guardian  of a minor
 patient, any person on the surrogate list, the hospital that  is  caring
 for  the  patient  and  the  facility  director,  may commence a special
 proceeding pursuant to article four of the civil practice law and rules,
 in a court of competent jurisdiction, with respect to any dispute  aris-
 ing  under  this  article,  except that the decision of a patient not to

 S. 4841                             9
 
 consent to issuance of an order not to resuscitate may not be  subjected
 to  judicial review. In any proceeding brought pursuant to this subdivi-
 sion challenging a decision regarding issuance of an order not to resus-
 citate  on  the  ground  that  the decision is contrary to the patient's
 wishes or best interests, the person or entity challenging the  decision
 must  show,  by  clear  and  convincing  evidence,  that the decision is
 contrary  to  the  patient's  wishes  including  consideration  of   the
 patient's religious and moral beliefs, or, in the absence of evidence of
 the  patient's  wishes,  that  the decision is contrary to the patient's
 best interests. In any other proceeding brought pursuant to this  subdi-
 vision, the court shall make its determination based upon the applicable
 substantive standards and procedures set forth in this article.
   § 15. Section 2976 of the public health law, as amended by chapter 430
 of the laws of 2017, is amended to read as follows:
   §  2976. Judicially approved order not to resuscitate. 1. If no surro-
 gate is reasonably available, willing to make a decision regarding issu-
 ance of an order not to resuscitate, and competent to  make  a  decision
 regarding  issuance of an order not to resuscitate on behalf of an adult
 patient who lacks capacity and who had not previously expressed a  deci-
 sion  regarding  cardiopulmonary resuscitation pursuant to this article,
 an attending [physician or attending nurse] practitioner or hospital may
 commence a special proceeding pursuant to  article  four  of  the  civil
 practice  law  and  rules,  in  a court of competent jurisdiction, for a
 judgment directing the physician [or], nurse practitioner  OR  PHYSICIAN
 ASSISTANT  to  issue an order not to resuscitate where the patient has a
 terminal condition, is permanently unconscious, or  resuscitation  would
 impose  an extraordinary burden on the patient in light of the patient's
 medical condition and the expected  outcome  of  resuscitation  for  the
 patient,  and issuance of an order not to resuscitate is consistent with
 the patient's wishes including a consideration of  the  patient's  reli-
 gious  and moral beliefs or, in the absence of evidence of the patient's
 wishes, the patient's best interests.
   2. Nothing in this article shall be construed to preclude a  court  of
 competent  jurisdiction  from  approving the issuance of an order not to
 resuscitate under circumstances other than those  under  which  such  an
 order may be issued pursuant to this article.
   §  16. Subdivisions 2, 9-a and 13 of section 2980 of the public health
 law, subdivisions 2 and 13 as added by chapter 752 of the laws of  1990,
 subdivision  9-a  as added by chapter 8 of the laws of 2010, are amended
 to read as follows:
   2. "Attending [physician] PRACTITIONER" means the physician, PHYSICIAN
 ASSISTANT, OR NURSE PRACTITIONER,  LICENSED  OR  CERTIFIED  PURSUANT  TO
 TITLE  EIGHT OF THE EDUCATION LAW, selected by or assigned to a patient,
 who has primary  responsibility  for  the  treatment  and  care  of  the
 patient.  Where  more  than one physician, PHYSICIAN ASSISTANT, OR NURSE
 PRACTITIONER shares such responsibility, or where a physician, PHYSICIAN
 ASSISTANT, OR NURSE PRACTITIONER is  acting  on  the  attending  [physi-
 cian's]  PRACTITIONER'S  behalf, any such physician, NURSE PRACTITIONER,
 OR PHYSICIAN ASSISTANT may act as the attending [physician] PRACTITIONER
 pursuant to this article.
   9-a. "Life-sustaining treatment" means any medical treatment or proce-
 dure without which the patient will die within a relatively short  time,
 as  determined  by an attending [physician] PRACTITIONER to a reasonable
 degree of medical certainty. For purposes of this article,  cardiopulmo-
 nary resuscitation is presumed to be a life sustaining treatment without

 S. 4841                            10
 
 the necessity of a determination by an attending [physician] PRACTITION-
 ER.
   13.  "Reasonably available" means that a person to be contacted can be
 contacted with diligent efforts by an attending [physician] PRACTITIONER
 or another person acting on behalf of the attending [physician]  PRACTI-
 TIONER or the hospital.
   §  17.  Subdivision  2-c  of  section 2980 of the public health law is
 REPEALED.
   § 18. Subdivisions 2, 3 and 6 of section 2981  of  the  public  health
 law,  as amended by chapter 342 of the laws of 2018, 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
 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,  PHYSICIAN  ASSISTANT  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 approved by  the  commissioner.  Such  regu-
 lations  shall  require  that a physician, nurse practitioner, PHYSICIAN
 ASSISTANT, 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, PHYSICIAN ASSISTANT, 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  principal  residing in or being treated by such facility or unit

 S. 4841                            11
 
 unless the physician is related to the principal by blood,  marriage  or
 adoption.
   (c)  If  a  physician,  PHYSICIAN  ASSISTANT, or nurse practitioner is
 appointed agent, the physician, PHYSICIAN ASSISTANT,  or  nurse  practi-
 tioner  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, PHYSICIAN ASSISTANT, or nurse practi-
 tioner 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
 determined in a writing signed by the physician, PHYSICIAN ASSISTANT, or
 nurse practitioner (A) that the person appointed as agent is not reason-
 ably  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 circum-
 stances;
   (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.
   § 19. Subdivisions 1, 2, 6 and 7 of section 2983 of the public  health
 law,  as amended by chapter 342 of the laws of 2018, are amended to read
 as follows:
   1. Determination by attending [physician or attending  nurse]  practi-
 tioner.  (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 reasonable degree of medical certain-
 ty.  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 determination shall be included in
 the patient's medical record. For a decision  to  withdraw  or  withhold
 life-sustaining  treatment, the attending [physician or attending nurse]
 practitioner who makes the determination that a principal lacks capacity
 to make health care  decisions  must  consult  with  another  physician,
 PHYSICIAN  ASSISTANT,  or  nurse  practitioner  to confirm such determi-
 nation. 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
 [physician  or attending nurse] practitioner who makes the determination

 S. 4841                            12
 
 must be, or must consult, for the purpose  of  confirming  the  determi-
 nation,  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
 determines that a patient lacks  capacity  because  of  a  developmental
 disability,  the  attending  [physician or attending nurse] practitioner
 who makes the determination must be, or must consult, for the purpose of
 confirming the determination,  with  a  physician,  nurse  practitioner,
 PHYSICIAN  ASSISTANT, 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, nurse practitioner, PHYSICIAN ASSISTANT,
 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,  PHYSICIAN ASSISTANT, or nurse practitioner who has
 been appointed as a patient's agent shall not make the determination  of
 the patient's capacity 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  determi-
 nation  regarding the principal's capacity to make health care decisions
 for the purposes of this article.
   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.
   § 20. Subdivision 2 of section 2985  of  the  public  health  law,  as
 amended  by  chapter  342  of  the  laws  of 2018, is amended to read as
 follows:
   2. Duty to record revocation. (a) A physician, PHYSICIAN ASSISTANT, 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,  PHYSICIAN  ASSISTANT,  or
 nurse practitioner of such revocation.
   § 21. Subdivisions 2 and 4 of section 2994-a of the public health law,
 as  amended  by  chapter 430 of the laws of 2017, are amended to read as
 follows:

 S. 4841                            13
 
   2. "Attending [physician"]  PRACTITIONER"  means  a  physician,  NURSE
 PRACTITIONER  OR  PHYSICIAN  ASSISTANT,  selected  by  or  assigned to a
 patient pursuant to hospital policy, who has primary responsibility  for
 the  treatment  and  care  of the patient. Where more than one physician
 [and/or],  nurse practitioner OR PHYSICIAN ASSISTANT shares such respon-
 sibility, or where a physician [or],  nurse  practitioner  OR  PHYSICIAN
 ASSISTANT  is  acting  on the attending [physician's or attending nurse]
 practitioner's behalf, any such physician [or],  nurse  practitioner  OR
 PHYSICIAN  ASSISTANT  may  act  as  an attending [physician or attending
 nurse] practitioner pursuant to this article.
   4. "Close friend" means any person, eighteen years of  age  or  older,
 who  is  a  close  friend  of  the patient, or a relative of the patient
 (other than a spouse, adult child, parent, brother or sister),  who  has
 maintained  such regular contact with the patient as to be familiar with
 the patient's activities, health, and religious or  moral  beliefs,  and
 who  presents a signed statement to that effect to the attending [physi-
 cian or attending nurse] practitioner.
   § 22. Subdivisions 2 and 3 of section 2994-b of the public health law,
 as amended by chapter 430 of the laws of 2017, are amended  to  read  as
 follows:
   2. Prior to seeking or relying upon a health care decision by a surro-
 gate  for  a  patient  under  this  article, the attending [physician or
 attending nurse] practitioner shall make reasonable efforts to determine
 whether the patient has a health care agent appointed pursuant to  arti-
 cle  twenty-nine-C of this chapter. If so, health care decisions for the
 patient shall be governed by such article, and shall have priority  over
 decisions  by  any  other  person  except  the  patient  or as otherwise
 provided in the health care proxy.
   3. Prior to seeking or relying upon a health care decision by a surro-
 gate for a patient under this article, if the  attending  [physician  or
 attending nurse] practitioner has reason to believe that the patient has
 a  history  of  receiving  services for mental retardation or a develop-
 mental disability; it reasonably appears to the attending [physician  or
 attending nurse] practitioner that the patient has mental retardation or
 a  developmental  disability;  or  the [attending physician or attending
 nurse] practitioner has reason to believe  that  the  patient  has  been
 transferred  from  a mental hygiene facility operated or licensed by the
 office of mental health, then such physician [or], nurse practitioner OR
 PHYSICIAN ASSISTANT shall make reasonable efforts to  determine  whether
 paragraphs (a), (b) or (c) of this subdivision are applicable:
   (a)  If  the  patient  has a guardian appointed by a court pursuant to
 article seventeen-A of the surrogate's court procedure act, health  care
 decisions for the patient shall be governed by section seventeen hundred
 fifty-b of the surrogate's court procedure act and not by this article.
   (b)  If a patient does not have a guardian appointed by a court pursu-
 ant to article seventeen-A of the surrogate's court  procedure  act  but
 falls within the class of persons described in paragraph (a) of subdivi-
 sion  one of section seventeen hundred fifty-b of such act, decisions to
 withdraw or withhold life-sustaining treatment for the patient shall  be
 governed  by  section seventeen hundred fifty-b of the surrogate's court
 procedure act and not by this article.
   (c) If a health care decision for a patient cannot be made under para-
 graphs (a) or (b) of this subdivision, but consent for the decision  may
 be  provided  pursuant  to  the mental hygiene law or regulations of the
 office of mental health or the  office  for  people  with  developmental

 S. 4841                            14
 
 disabilities,  then  the  decision  shall be governed by such statute or
 regulations and not by this article.
   §  23.  Subdivisions 2, 3 and 7 of section 2994-c of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:
   2.  Initial  determination by attending [physician or attending nurse]
 practitioner. An attending [physician or attending  nurse]  practitioner
 shall  make  an  initial determination that an adult patient lacks deci-
 sion-making capacity to a reasonable degree of medical certainty.   Such
 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.
   3. Concurring determinations. (a)  An  initial  determination  that  a
 patient  lacks decision-making capacity shall be subject to a concurring
 determination, independently made, where required by this subdivision. 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 identi-
 fying  the training and credentials of health or social services practi-
 tioners 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 or attending nurse] practitioner
 makes an initial determination  that  a  patient  lacks  decision-making
 capacity  because of mental illness, either such physician must have the
 following qualifications, or another physician with the following quali-
 fications 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  or  attending  nurse]  practitioner
 makes  an  initial  determination  that  a patient lacks decision-making
 capacity because of a developmental disability,  either  such  physician
 [or],  nurse practitioner OR PHYSICIAN ASSISTANT must have the following
 qualifications, or another professional with  the  following  qualifica-
 tions  must  independently determine whether the patient lacks decision-
 making capacity: 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

 S. 4841                            15

 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)  If  an  attending [physician or attending nurse] practitioner has
 determined that the patient lacks decision-making capacity  and  if  the
 health or social services practitioner consulted for a concurring deter-
 mination  disagrees  with  the  attending  [physician's or the attending
 nurse] practitioner's determination, the matter shall be referred to the
 ethics review committee if it cannot otherwise be resolved.
   7. Confirmation of continued  lack  of  decision-making  capacity.  An
 attending  [physician or attending nurse] practitioner shall confirm the
 adult  patient's  continued  lack  of  decision-making  capacity  before
 complying  with  health  care  decisions  made pursuant to this article,
 other than those decisions made at or about  the  time  of  the  initial
 determination.  A  concurring  determination  of the patient's continued
 lack of decision-making capacity shall be  required  if  the  subsequent
 health care decision concerns the withholding or withdrawal of life-sus-
 taining treatment. Health care providers shall not be required to inform
 the patient or surrogate of the confirmation.
   §  24.  Subdivisions 2, 3 and 5 of section 2994-d of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:
   2. Restrictions on who may be a surrogate. An operator, administrator,
 or  employee  of  a hospital or a mental hygiene facility from which the
 patient was transferred, or a  physician  [or],  nurse  practitioner  OR
 PHYSICIAN  ASSISTANT who has privileges at the hospital or a health care
 provider under contract with the hospital may not serve as the surrogate
 for any adult who is a patient of such hospital, unless such  individual
 is  related  to the patient by blood, marriage, domestic partnership, or
 adoption, or is a close friend of the patient whose friendship with  the
 patient preceded the patient's admission to the facility. If a physician
 [or], nurse practitioner OR PHYSICIAN ASSISTANT serves as surrogate, the
 physician  [or], nurse practitioner OR PHYSICIAN ASSISTANT shall not act
 as the patient's attending [physician or attending  nurse]  practitioner
 after his or her authority as surrogate begins.
   3. Authority and duties of surrogate. (a) Scope of surrogate's author-
 ity.
   (i)  Subject  to  the  standards  and limitations of this article, the
 surrogate shall have the authority to make any and all health care deci-
 sions on the adult patient's behalf that the patient could make.
   (ii) Nothing in this article shall obligate health care  providers  to
 seek  the  consent of a surrogate if an adult patient has already made a
 decision about the proposed health care, expressed orally or in  writing
 or,  with  respect to a decision to withdraw or withhold life-sustaining
 treatment expressed either orally during hospitalization in the presence
 of two witnesses eighteen years of age or older, at least one of whom is
 a health or social services practitioner affiliated with  the  hospital,
 or  in  writing.  If an attending [physician or attending nurse] practi-
 tioner relies on the patient's prior decision, the physician [or], nurse
 practitioner OR PHYSICIAN ASSISTANT shall record the prior  decision  in
 the patient's medical record. If a surrogate has already been designated
 for  the  patient,  the attending [physician or attending nurse] practi-

 S. 4841                            16
 
 tioner shall make reasonable efforts to notify the  surrogate  prior  to
 implementing  the  decision;  provided that in the case of a decision to
 withdraw or withhold life-sustaining treatment, the attending [physician
 or  attending  nurse] practitioner shall make diligent efforts to notify
 the surrogate and, if unable to notify the surrogate, shall document the
 efforts that were made to do so.
   (b) Commencement of surrogate's authority. The  surrogate's  authority
 shall  commence  upon  a determination, made pursuant to section twenty-
 nine hundred ninety-four-c of this article, that the adult patient lacks
 decision-making capacity and upon identification of a surrogate pursuant
 to subdivision one of this section. In the event an attending [physician
 or nurse] practitioner determines that the patient  has  regained  deci-
 sion-making capacity, the authority of the surrogate shall cease.
   (c)  Right  and  duty  to  be informed. Notwithstanding any law to the
 contrary, the surrogate shall have the right to receive medical informa-
 tion and medical records necessary to make informed decisions about  the
 patient's  health  care.  Health  care  providers  shall provide and the
 surrogate shall seek information necessary to make an informed decision,
 including information about  the  patient's  diagnosis,  prognosis,  the
 nature  and  consequences  of proposed health care, and the benefits and
 risks of and [alternative] ALTERNATIVES to proposed health care.
   5. Decisions to withhold or  withdraw  life-sustaining  treatment.  In
 addition to the standards set forth in subdivision four of this section,
 decisions  by  surrogates to withhold or withdraw life-sustaining treat-
 ment (including decisions to accept a hospice plan of care that provides
 for the withdrawal or withholding of life-sustaining treatment) shall be
 authorized only if the following conditions are satisfied,  as  applica-
 ble:
   (a)(i)  Treatment  would be an extraordinary burden to the patient and
 an attending [physician or  attending  nurse]  practitioner  determines,
 with  the independent concurrence of another physician [or], nurse prac-
 titioner OR PHYSICIAN ASSISTANT, that, to a reasonable degree of medical
 certainty and in accord with accepted medical standards, (A) the patient
 has an illness or injury which can be expected to cause death within six
 months, whether or not treatment is provided;  or  (B)  the  patient  is
 permanently unconscious; or
   (ii)  The provision of treatment would involve such pain, suffering or
 other burden that it would reasonably be  deemed  inhumane  or  extraor-
 dinarily burdensome under the circumstances and the patient has an irre-
 versible  or  incurable condition, as determined by an attending [physi-
 cian or attending nurse] practitioner with the  independent  concurrence
 of  another physician [or], nurse practitioner OR PHYSICIAN ASSISTANT to
 a reasonable degree of medical certainty and  in  accord  with  accepted
 medical standards.
   (b)  In a residential health care facility, a surrogate shall have the
 authority to refuse life-sustaining treatment under subparagraph (ii) of
 paragraph (a) of this subdivision only if the ethics  review  committee,
 including  at  least one physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT who is not directly responsible for the patient's care,  or  a
 court  of  competent  jurisdiction,  reviews the decision and determines
 that it meets the standards set forth in this article. This  requirement
 shall not apply to a decision to withhold cardiopulmonary resuscitation.
   (c)  In  a  general hospital, if the attending [physician or attending
 nurse] practitioner objects to a surrogate's  decision,  under  subpara-
 graph (ii) of paragraph (a) of this subdivision, to withdraw or withhold
 nutrition  and  hydration  provided  by  means of medical treatment, the

 S. 4841                            17
 
 decision shall not be implemented until  the  ethics  review  committee,
 including  at  least one physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT who is not directly responsible for the patient's care,  or  a
 court  of  competent  jurisdiction,  reviews the decision and determines
 that it meets the standards set forth in this subdivision  and  subdivi-
 sion four of this section.
   (d)  Providing  nutrition  and  hydration  orally, without reliance on
 medical treatment, is not health care under  this  article  and  is  not
 subject to this article.
   (e) Expression of decisions. The surrogate shall express a decision to
 withdraw  or  withhold  life-sustaining  treatment  either  orally to an
 attending [physician or attending nurse] practitioner or in writing.
   § 25. Subdivisions 2 and 3 of section 2994-e of the public health law,
 as amended by chapter 430 of the laws of 2017, are amended  to  read  as
 follows:
   2. Decision-making standards and procedures for minor patient. (a) The
 parent or guardian of a minor patient shall make decisions in accordance
 with the minor's best interests, consistent with the standards set forth
 in subdivision four of section twenty-nine hundred ninety-four-d of this
 article, taking into account the minor's wishes as appropriate under the
 circumstances.
   (b)  An  attending  [physician  or  attending  nurse] practitioner, in
 consultation with a minor's parent or guardian, shall determine  whether
 a  minor patient has decision-making capacity for a decision to withhold
 or withdraw life-sustaining treatment. If the minor has such capacity, a
 parent's or guardian's decision to withhold or withdraw  life-sustaining
 treatment  for  the  minor  may  not  be implemented without the minor's
 consent.
   (c) Where a parent or guardian of a minor patient has made a  decision
 to  withhold  or  withdraw  life-sustaining  treatment  and an attending
 [physician or attending nurse] practitioner has reason to  believe  that
 the  minor patient has a parent or guardian who has not been informed of
 the decision, including a non-custodial parent or guardian, an attending
 [physician,attending nurse] practitioner or someone acting on his or her
 behalf, shall make reasonable efforts to  determine  if  the  uninformed
 parent  or  guardian  has  maintained substantial and continuous contact
 with the minor and, if so, shall make diligent efforts  to  notify  that
 parent or guardian prior to implementing the decision.
   3.  Decision-making  standards  and  procedures  for emancipated minor
 patient. (a) If an attending [physician or attending nurse] practitioner
 determines that a patient is an emancipated  minor  patient  with  deci-
 sion-making  capacity,  the  patient  shall have the authority to decide
 about life-sustaining treatment. Such authority shall include a decision
 to withhold  or  withdraw  life-sustaining  treatment  if  an  attending
 [physician  or  attending  nurse]  practitioner  and  the  ethics review
 committee determine that the decision accords  with  the  standards  for
 surrogate decisions for adults, and the ethics review committee approves
 the decision.
   (b) If the hospital can with reasonable efforts ascertain the identity
 of the parents or guardian of an emancipated minor patient, the hospital
 shall  notify such persons prior to withholding or withdrawing life-sus-
 taining treatment pursuant to this subdivision.
   § 26. Section 2994-f of the public health law, as amended  by  chapter
 430 of the laws of 2017, is amended to read as follows:
   §  2994-f.  Obligations  of  attending  [physician or attending nurse]
 practitioner. 1. An attending [physician or attending nurse] practition-

 S. 4841                            18
 
 er informed of a decision to withdraw or withhold life-sustaining treat-
 ment made pursuant to the standards of this  article  shall  record  the
 decision  in  the patient's medical record, review the medical basis for
 the  decision,  and  shall  either:  (a)  implement the decision, or (b)
 promptly make his or her objection to the decision and the  reasons  for
 the  objection  known to the decision-maker, and either make all reason-
 able efforts to arrange for the  transfer  of  the  patient  to  another
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT, if necessary,
 or promptly refer the matter to the ethics review committee.
   2.  If  an  attending  [physician or attending nurse] practitioner has
 actual notice of the following objections or disagreements,  he  or  she
 shall  promptly  refer  the matter to the ethics review committee if the
 objection or disagreement cannot otherwise be resolved:
   (a) A health or social services practitioner consulted for  a  concur-
 ring  determination that an adult patient lacks decision-making capacity
 disagrees with the attending [physician's or  attending  nurse]  practi-
 tioner's determination; or
   (b) Any person on the surrogate list objects to the designation of the
 surrogate  pursuant  to  subdivision  one of section twenty-nine hundred
 ninety-four-d of this article; or
   (c) Any person on the surrogate list objects to  a  surrogate's  deci-
 sion; or
   (d) A parent or guardian of a minor patient objects to the decision by
 another parent or guardian of the minor; or
   (e) A minor patient refuses life-sustaining treatment, and the minor's
 parent  or  guardian  wishes  the treatment to be provided, or the minor
 patient objects to an attending [physician's or attending nurse] practi-
 tioner's determination about decision-making capacity or  recommendation
 about life-sustaining treatment.
   3.  Notwithstanding  the provisions of this section or subdivision one
 of section twenty-nine hundred  ninety-four-q  of  this  article,  if  a
 surrogate directs the provision of life-sustaining treatment, the denial
 of which in reasonable medical judgment would be likely to result in the
 death of the patient, a hospital or individual health care provider that
 does  not  wish  to provide such treatment shall nonetheless comply with
 the surrogate's decision pending either transfer of  the  patient  to  a
 willing  hospital or individual health care provider, or judicial review
 in accordance with section twenty-nine  hundred  ninety-four-r  of  this
 article.
   §  27. Subdivisions 3, 4, 5, 5-a and 6 of section 2994-g of the public
 health law, as amended by chapter 430 of the laws of 2017,  are  amended
 to read as follows:
   3.  Routine  medical  treatment. (a) For purposes of this subdivision,
 "routine medical treatment" means any treatment, service,  or  procedure
 to  diagnose or treat an individual's physical or mental condition, such
 as the administration of medication, the extraction of bodily fluids for
 analysis, or dental care performed with a local  anesthetic,  for  which
 health  care  providers ordinarily do not seek specific consent from the
 patient or authorized representative. It shall not include the long-term
 provision of treatment such as ventilator support or a nasogastric  tube
 but shall include such treatment when provided as part of post-operative
 care  or  in  response  to  an  acute illness and recovery is reasonably
 expected within one month or less.
   (b) An attending [physician or attending nurse] practitioner shall  be
 authorized  to  decide  about  routine  medical  treatment  for an adult
 patient who has been determined to lack decision-making capacity  pursu-

 S. 4841                            19
 
 ant to section twenty-nine hundred ninety-four-c of this article.  Noth-
 ing  in  this  subdivision shall require health care providers to obtain
 specific consent for treatment where specific consent is  not  otherwise
 required by law.
   4.  Major  medical  treatment.  (a)  For purposes of this subdivision,
 "major medical treatment" means any treatment, service or  procedure  to
 diagnose  or  treat  an  individual's  physical or mental condition: (i)
 where general anesthetic is used; or (ii) which involves any significant
 risk; or (iii) which involves any significant invasion of bodily  integ-
 rity  requiring  an  incision,  producing  substantial pain, discomfort,
 debilitation or having a significant  recovery  period;  or  (iv)  which
 involves  the  use  of  physical restraints, as specified in regulations
 promulgated by the commissioner, except in an emergency;  or  (v)  which
 involves  the  use  of psychoactive medications, except when provided as
 part of post-operative care or in  response  to  an  acute  illness  and
 treatment  is  reasonably  expected  to be administered over a period of
 forty-eight hours or less, or when provided in an emergency.
   (b) A decision to provide major medical treatment, made in  accordance
 with  the  following  requirements,  shall  be  authorized  for an adult
 patient who has been determined to lack decision-making capacity  pursu-
 ant to section twenty-nine hundred ninety-four-c of this article.
   (i)  An  attending  [physician  or attending nurse] practitioner shall
 make a recommendation  in  consultation  with  hospital  staff  directly
 responsible for the patient's care.
   (ii)  In  a general hospital, at least one other physician [or], nurse
 practitioner OR PHYSICIAN ASSISTANT  designated  by  the  hospital  must
 independently  determine  that he or she concurs that the recommendation
 is appropriate.
   (iii) In a residential health care facility, and for a hospice patient
 not in a general hospital, the  medical  director  of  the  facility  or
 hospice,  or a physician [or], nurse practitioner OR PHYSICIAN ASSISTANT
 designated by the medical director, must independently determine that he
 or she concurs that the recommendation is appropriate; provided that  if
 the  medical director is the patient's attending [physician or attending
 nurse] practitioner, a different physician [or], nurse  practitioner  OR
 PHYSICIAN  ASSISTANT  designated by the residential health care facility
 or hospice must make  this  independent  determination.  Any  health  or
 social  services  practitioner  employed by or otherwise formally affil-
 iated with the facility or hospice may  provide  a  second  opinion  for
 decisions about physical restraints made pursuant to this subdivision.
   5.  Decisions to withhold or withdraw life-sustaining treatment. (a) A
 court of competent jurisdiction may make a decision to withhold or with-
 draw life-sustaining treatment for an adult patient who has been  deter-
 mined  to  lack decision-making capacity pursuant to section twenty-nine
 hundred ninety-four-c of this article if the court finds that the  deci-
 sion accords with standards for decisions for adults set forth in subdi-
 visions  four  and  five of section twenty-nine hundred ninety-four-d of
 this article.
   (b) If the attending [physician or attending nurse] practitioner, with
 independent concurrence of a second physician [or],  nurse  practitioner
 OR  PHYSICIAN  ASSISTANT  designated  by  the  hospital, determines to a
 reasonable degree of medical certainty that:
   (i) life-sustaining treatment offers the patient  no  medical  benefit
 because  the  patient  will  die  imminently,  even  if the treatment is
 provided; and

 S. 4841                            20
 
   (ii) the provision of life-sustaining treatment would violate accepted
 medical standards, then such treatment may be withdrawn or withheld from
 an adult patient who has been determined to lack decision-making capaci-
 ty pursuant to section twenty-nine hundred ninety-four-c of  this  arti-
 cle,  without  judicial  approval. This paragraph shall not apply to any
 treatment necessary to alleviate pain or discomfort.
   5-a. Decisions regarding hospice  care.  An  attending  [physician  or
 attending  nurse]  practitioner  shall  be  authorized to make decisions
 regarding hospice care and execute appropriate documents for such  deci-
 sions  (including  a  hospice  election form) for an adult patient under
 this section who is hospice eligible in accordance  with  the  following
 requirements.
   (a)  The  attending  [physician or attending nurse] practitioner shall
 make decisions under this section in consultation  with  staff  directly
 responsible  for the patient's care, and shall base his or her decisions
 on the standards for surrogate decisions set forth in subdivisions  four
 and five of section twenty-nine hundred ninety-four-d of this article;
   (b) There is a concurring opinion as follows:
   (i)  in  a  general hospital, at least one other physician [or], nurse
 practitioner OR PHYSICIAN ASSISTANT  designated  by  the  hospital  must
 independently  determine  that he or she concurs that the recommendation
 is consistent with such standards for surrogate decisions;
   (ii) in a residential health care facility, the  medical  director  of
 the  facility,  or  a  physician  [or],  nurse practitioner OR PHYSICIAN
 ASSISTANT designated by the medical director, must independently  deter-
 mine  that  he or she concurs that the recommendation is consistent with
 such standards for surrogate decisions; provided  that  if  the  medical
 director is the patient's attending [physician or attending nurse] prac-
 titioner,  a  different  physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT designated by the residential health care facility  must  make
 this independent determination; or
   (iii)  in settings other than a general hospital or residential health
 care facility, the medical director  of  the  hospice,  or  a  physician
 designated by the medical director, must independently determine that he
 or  she  concurs  that  the  recommendation is medically appropriate and
 consistent with such standards for surrogate decisions; provided that if
 the medical director is the patient's attending physician,  a  different
 physician  designated by the hospice must make this independent determi-
 nation; and
   (c) The ethics review committee of the general  hospital,  residential
 health  care  facility or hospice, as applicable, including at least one
 physician [or], nurse practitioner OR PHYSICIAN ASSISTANT who is not the
 patient's attending [physician or attending nurse]  practitioner,  or  a
 court  of competent jurisdiction, must review the decision and determine
 that it is consistent with such standards for surrogate decisions.
   6.  Physician  [or],  nurse  practitioner   OR   PHYSICIAN   ASSISTANT
 objection.  If a physician [or], nurse practitioner OR PHYSICIAN ASSIST-
 ANT consulted for a concurring opinion objects to an  attending  [physi-
 cian's  or  attending  nurse]  practitioner's recommendation or determi-
 nation made pursuant to this section, or a member of the hospital  staff
 directly  responsible  for  the  patient's  care objects to an attending
 [physician's or attending  nurse]  practitioner's  recommendation  about
 major medical treatment or treatment without medical benefit, the matter
 shall  be referred to the ethics review committee if it cannot be other-
 wise resolved.

 S. 4841                            21
 
   § 28. Section 2994-j of the public health law, as amended  by  chapter
 430 of the laws of 2017, is amended to read as follows:
   § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
 guardian of a minor patient may at any time revoke his or her consent to
 withhold or withdraw life-sustaining treatment by informing an attending
 [physician,  attending nurse] practitioner or a member of the medical or
 nursing staff of the revocation.
   2. An attending [physician or attending nurse]  practitioner  informed
 of  a  revocation  of  consent made pursuant to this section shall imme-
 diately:
   (a) record the revocation in the patient's medical record;
   (b) cancel any orders implementing the decision to withhold  or  with-
 draw treatment; and
   (c)  notify  the hospital staff directly responsible for the patient's
 care of the revocation and any cancellations.
   3. Any member of the medical or nursing  staff,  other  than  a  nurse
 practitioner  OR  PHYSICIAN  ASSISTANT,  informed  of  a revocation made
 pursuant to this section shall immediately notify an  attending  [physi-
 cian or attending nurse] practitioner of the revocation.
   §  29. The opening paragraph of subdivision 2 of section 2994-k of the
 public health law, as amended by chapter 430 of the  laws  of  2017,  is
 amended to read as follows:
   If  a  decision  to withhold or withdraw life-sustaining treatment has
 been made pursuant to this  article,  and  an  attending  [physician  or
 attending  nurse]  practitioner determines at any time that the decision
 is no longer appropriate or authorized because the patient has  regained
 decision-making  capacity  or because the patient's condition has other-
 wise improved, the  physician  [or],  nurse  practitioner  OR  PHYSICIAN
 ASSISTANT shall immediately:
   §  30.  Section 2994-l of the public health law, as amended by chapter
 430 of the laws of 2017, is amended to read as follows:
   § 2994-l. Interinstitutional transfers. If a patient with an order  to
 withhold  or  withdraw  life-sustaining  treatment is transferred from a
 mental hygiene facility to a hospital or from a hospital to a  different
 hospital, any such order or plan shall remain effective until an attend-
 ing  [physician  or  attending  nurse]  practitioner  first examines the
 transferred patient, whereupon  an  attending  [physician  or  attending
 nurse] practitioner must either:
   1.  Issue appropriate orders to continue the prior order or plan. Such
 orders may be issued without obtaining another consent  to  withhold  or
 withdraw life-sustaining treatment pursuant to this article; or
   2.  Cancel such order, if the attending [physician or attending nurse]
 practitioner determines that the  order  is  no  longer  appropriate  or
 authorized.  Before  canceling  the  order  the  attending [physician or
 attending nurse] practitioner shall make reasonable  efforts  to  notify
 the  person  who made the decision to withhold or withdraw treatment and
 the hospital staff directly responsible for the patient's  care  of  any
 such  cancellation.  If  such  notice cannot reasonably be made prior to
 canceling the order or  plan,  the  attending  [physician  or  attending
 nurse] practitioner shall make such notice as soon as reasonably practi-
 cable after cancellation.
   § 31. Subdivisions 3 and 4 of section 2994-m of the public health law,
 as  amended  by  chapter 430 of the laws of 2017, are amended to read as
 follows:
   3. Committee membership. The membership of  ethics  review  committees
 must  be  interdisciplinary  and  must include at least five members who

 S. 4841                            22
 
 have demonstrated an interest in or commitment to patient's rights or to
 the medical, public health, or social needs of those  who  are  ill.  At
 least  three  ethics  review  committee members must be health or social
 services  practitioners, at least one of whom must be a registered nurse
 and one of whom must be a physician [or], nurse practitioner  OR  PHYSI-
 CIAN  ASSISTANT. At least one member must be a person without any gover-
 nance, employment or contractual relationship with the  hospital.  In  a
 residential  health care facility the facility must offer the residents'
 council of the facility (or of another facility that participates in the
 committee) the opportunity to appoint up to two persons  to  the  ethics
 review  committee,  none of whom may be a resident of or a family member
 of a resident of such facility, and both of whom shall  be  persons  who
 have  expertise  in or a demonstrated commitment to patient rights or to
 the care and treatment of the elderly or nursing home residents  through
 professional or community activities, other than activities performed as
 a health care provider.
   4.  Procedures  for  ethics review committee. (a) These procedures are
 required only when: (i) the  ethics  review  committee  is  convened  to
 review a decision by a surrogate to withhold or withdraw life-sustaining
 treatment  for:  (A)  a  patient  in  a residential health care facility
 pursuant to paragraph (b) of subdivision  five  of  section  twenty-nine
 hundred ninety-four-d of this article; (B) a patient in a general hospi-
 tal pursuant to paragraph (c) of subdivision five of section twenty-nine
 hundred  ninety-four-d  of  this  article;  or  (C) an emancipated minor
 patient pursuant to subdivision three  of  section  twenty-nine  hundred
 ninety-four-e  of this article; or (ii) when a person connected with the
 case requests the ethics  review  committee  to  provide  assistance  in
 resolving  a  dispute about proposed care. Nothing in this section shall
 bar health care  providers  from  first  striving  to  resolve  disputes
 through  less  formal  means,  including  the  informal  solicitation of
 ethical advice from any source.
   (b)(i) A person connected with the case  may  not  participate  as  an
 ethics review committee member in the consideration of that case.
   (ii)  The  ethics review committee shall respond promptly, as required
 by the circumstances, to any  request  for  assistance  in  resolving  a
 dispute or consideration of a decision to withhold or withdraw life-sus-
 taining treatment pursuant to paragraphs (b) and (c) of subdivision five
 of  section  twenty-nine hundred ninety-four-d of this article made by a
 person connected with the  case.  The  committee  shall  permit  persons
 connected  with the case to present their views to the committee, and to
 have the option of being accompanied by an advisor when participating in
 a committee meeting.
   (iii) The ethics review committee shall promptly provide the  patient,
 where there is any indication of the patient's ability to comprehend the
 information, the surrogate, other persons on the surrogate list directly
 involved  in  the  decision or dispute regarding the patient's care, any
 parent or guardian of a minor patient directly involved in the  decision
 or  dispute regarding the minor patient's care, an attending [physician,
 an attending nurse] practitioner, the hospital, and  other  persons  the
 committee deems appropriate, with the following:
   (A)  notice  of any pending case consideration concerning the patient,
 including, for patients, persons on  the  surrogate  list,  parents  and
 guardians,  information  about the ethics review committee's procedures,
 composition and function; and
   (B) the committee's response to the case, including a  written  state-
 ment  of  the  reasons  for approving or disapproving the withholding or

 S. 4841                            23
 
 withdrawal of life-sustaining treatment for decisions considered  pursu-
 ant to subparagraph (ii) of paragraph (a) of subdivision five of section
 twenty-nine  hundred  ninety-four-d  of  this  article.  The committee's
 response to the case shall be included in the patient's medical record.
   (iv)  Following  ethics  review  committee  consideration  of  a  case
 concerning the withdrawal or withholding of  life-sustaining  treatment,
 treatment  shall  not be withdrawn or withheld until the persons identi-
 fied in subparagraph (iii) of this paragraph have been informed  of  the
 committee's response to the case.
   (c)  When  an  ethics review committee is convened to review decisions
 regarding hospice care for a patient in a general hospital  or  residen-
 tial health care facility, the responsibilities of this section shall be
 carried  out  by  the ethics review committee of the general hospital or
 residential health care facility, provided  that  such  committee  shall
 invite a representative from hospice to participate.
   §  32.  Paragraph (b) of subdivision 4 of section 2994-r of the public
 health law, as amended by chapter 430 of the laws of 2017, is amended to
 read as follows:
   (b) The following persons may commence a special proceeding in a court
 of competent jurisdiction to seek appointment as the health care guardi-
 an of a minor patient solely for the purpose of deciding about life-sus-
 taining treatment pursuant to this article:
   (i) the hospital administrator;
   (ii) an attending [physician or attending nurse] practitioner;
   (iii) the local commissioner of social services or the  local  commis-
 sioner of health, authorized to make medical treatment decisions for the
 minor  pursuant  to  section  three hundred eighty-three-b of the social
 services law; or
   (iv) an individual, eighteen years of age or older,  who  has  assumed
 care of the minor for a substantial and continuous period of time.
   §  33.  Subdivision  1  of section 2994-s of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
 follows:
   1.  Any  hospital,  attending  [physician  or nurse] practitioner that
 refuses to honor a health care decision by a surrogate made pursuant  to
 this  article and in accord with the standards set forth in this article
 shall not be entitled to compensation for treatment, services, or proce-
 dures refused by the surrogate, except that this subdivision  shall  not
 apply:
   (a)  when  a hospital, physician [or], nurse practitioner OR PHYSICIAN
 ASSISTANT exercises the rights granted by  section  twenty-nine  hundred
 ninety-four-n  of this article, provided that the physician, nurse prac-
 titioner, PHYSICIAN ASSISTANT or hospital promptly  fulfills  the  obli-
 gations  set  forth in section twenty-nine hundred ninety-four-n of this
 article;
   (b) while a matter is under consideration by the ethics review commit-
 tee, provided that the matter is promptly referred to and considered  by
 the committee;
   (c)  in  the  event  of a dispute between individuals on the surrogate
 list; or
   (d) if the  physician,  nurse  practitioner,  PHYSICIAN  ASSISTANT  or
 hospital  prevails in any litigation concerning the surrogate's decision
 to refuse the treatment, services or procedure. Nothing in this  section
 shall  determine  or affect how disputes among individuals on the surro-
 gate list are resolved.

 S. 4841                            24
 
   § 34. Subdivision 2 of section 2994-aa of the public  health  law,  as
 amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
 follows:
   2.  "Attending  [physician"]  PRACTITIONER" means the physician, NURSE
 PRACTITIONER OR PHYSICIAN ASSISTANT who has primary  responsibility  for
 the  treatment  and  care  of the patient. Where more than one physician
 [or], nurse practitioner OR PHYSICIAN ASSISTANT shares such responsibil-
 ity, any such physician [or], nurse practitioner OR PHYSICIAN  ASSISTANT
 may  act  as  the  attending [physician or attending nurse] practitioner
 pursuant to this article.
   § 35. Section 2994-cc of the public health law, as amended by  chapter
 430 of the laws of 2017, is amended to read as follows:
   §  2994-cc.  Consent  to a nonhospital order not to resuscitate. 1. An
 adult with decision-making capacity, a health care agent, or a surrogate
 may consent to a nonhospital order not  to  resuscitate  orally  to  the
 attending  [physician or attending nurse] practitioner or in writing. If
 a patient consents to a nonhospital order not to resuscitate while in  a
 correctional facility, notice of the patient's consent shall be given to
 the  facility director and reasonable efforts shall be made to notify an
 individual designated by the patient to receive such notice prior to the
 issuance of the nonhospital order not to  resuscitate.  Notification  to
 the  facility director or the individual designated by the patient shall
 not delay issuance of a nonhospital order not to resuscitate.
   2. Consent by a health care agent shall be governed by  article  twen-
 ty-nine-C of this chapter.
   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.
   4. (a) When the concurrence of a second physician [or], nurse  practi-
 tioner  OR PHYSICIAN ASSISTANT 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 [or], nurse practitioner OR
 PHYSICIAN ASSISTANT shall be selected by the chief  medical  officer  of
 the  department  of  corrections and community supervision or his or her
 designee.
   (b) When the concurrence of a second physician [or], nurse practition-
 er OR PHYSICIAN ASSISTANT 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 [or] , nurse practitioner OR PHYSI-
 CIAN ASSISTANT 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.
   5.  Consent  by  a  patient  or  a surrogate for a patient in a mental
 hygiene facility shall be governed  by  article  twenty-nine-B  of  this
 chapter.
   §  36. Section 2994-dd of the public health law, as amended by chapter
 430 of the laws of 2017, is amended to read as follows:
   § 2994-dd. Managing a nonhospital order not  to  resuscitate.  1.  The
 attending  [physician  or attending nurse] practitioner shall record the
 issuance of a nonhospital order not  to  resuscitate  in  the  patient's
 medical record.

 S. 4841                            25
 
   2. A nonhospital order not to resuscitate shall be issued upon a stan-
 dard  form  prescribed  by the commissioner. The commissioner shall also
 develop a standard bracelet that may be worn by a patient with a nonhos-
 pital order not to resuscitate to identify that status; provided, howev-
 er,  that  no  person  may require a patient to wear such a bracelet and
 that no person may require a patient to wear such a bracelet as a condi-
 tion for honoring a nonhospital order not to resuscitate or for  provid-
 ing health care services.
   3.  An  attending  [physician or attending nurse] practitioner who has
 issued a nonhospital order not to resuscitate, and who transfers care of
 the patient to another physician [or], nurse practitioner  OR  PHYSICIAN
 ASSISTANT, shall inform the physician [or], nurse practitioner OR PHYSI-
 CIAN ASSISTANT of the order.
   4.  For  each  patient for whom a nonhospital order not to resuscitate
 has been issued, the attending [physician or  attending  nurse]  practi-
 tioner  shall  review whether the order is still appropriate in light of
 the patient's condition each time he or she examines the patient, wheth-
 er in the hospital  or  elsewhere,  but  at  least  every  ninety  days,
 provided that the review need not occur more than once every seven days.
 The  attending  [physician or attending nurse] practitioner shall record
 the review in the patient's medical record  provided,  however,  that  a
 PHYSICIAN  ASSISTANT  OR  A  registered  nurse, other than the attending
 nurse practitioner, who provides direct care to the patient  may  record
 the  review  in the medical record at the direction of the physician. In
 such case, the attending [physician  or  attending  nurse]  practitioner
 shall  include  a  confirmation  of  the review in the patient's medical
 record within fourteen days of such review. Failure to comply with  this
 subdivision  shall  not  render  a  nonhospital order not to resuscitate
 ineffective.
   5. A person who has consented to a nonhospital order not  to  resusci-
 tate  may  at any time revoke his or her consent to the order by any act
 evidencing a specific intent to revoke such  consent.  Any  health  care
 professional,  other  than  the attending [physician or attending nurse]
 practitioner, informed of a revocation of consent to a nonhospital order
 not to resuscitate shall notify the attending  [physician  or  attending
 nurse]  practitioner  of  the  revocation.  An  attending  [physician or
 attending nurse] practitioner who is informed that a  nonhospital  order
 not  to  resuscitate has been revoked shall record the revocation in the
 patient's medical record, cancel the order and make diligent efforts  to
 retrieve the form issuing the order, and the standard bracelet, if any.
   6.  The  commissioner may authorize the use of one or more alternative
 forms for issuing a nonhospital order not to resuscitate  (in  place  of
 the  standard  form prescribed by the commissioner under subdivision two
 of this section). Such alternative form or forms may  also  be  used  to
 issue  a  non-hospital do not intubate order. Any such alternative forms
 intended for use for persons with developmental disabilities or  persons
 with  mental  illness  who are incapable of making their own health care
 decisions or who have a guardian of the  person  appointed  pursuant  to
 article  eighty-one  of the mental hygiene law or article seventeen-A of
 the surrogate's court procedure act must also be approved by the commis-
 sioner of developmental  disabilities  or  the  commissioner  of  mental
 health, as appropriate. An alternative form under this subdivision shall
 otherwise  conform  with applicable federal and state law. This subdivi-
 sion does not limit, restrict or impair the use of an  alternative  form
 for  issuing  an order not to resuscitate in a general hospital or resi-
 dential health care facility under article twenty-eight of this  chapter

 S. 4841                            26
 
 or  a  hospital  under  subdivision  ten  of  section 1.03 of the mental
 hygiene law.
   §  37.  Subdivision  2 of section 2994-ee of the public health law, as
 amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
 follows:
   2.  Hospital  emergency  services  physicians  and  hospital emergency
 services nurse practitioners AND PHYSICIAN ASSISTANTS  may  direct  that
 the  order  be  disregarded if other significant and exceptional medical
 circumstances warrant disregarding the order.
   § 38. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall have become a law; provided, however that if chapter 342
 of the laws of 2018 shall not have taken effect on or before such  date,
 then sections seventeen, eighteen, nineteen and twenty of this act shall
 take  effect on the same date and in the same manner as such chapter 342
 of the laws of 2018, takes effect. 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.