S T A T E O F N E W Y O R K
________________________________________________________________________
5938
2019-2020 Regular Sessions
I N S E N A T E
May 16, 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 and the surrogate's court proce-
dure act, in relation to conforming and improving the process for
determining incapacity
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 2, 3, 4, 5, 6 and 7 of section 2983 of the
public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
§ 2. Subdivision 1 of section 2983 of the public health law, as
amended by chapter 342 of the laws of 2018, is amended to read as
follows:
1. [Determination] INITIAL DETERMINATION by attending physician or
attending nurse practitioner. [(a) A] AN INITIAL 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 certainty. The determination shall be made in writing
and shall contain such attending physician's or attending nurse practi-
tioner's opinion regarding the cause and nature of the principal's inca-
pacity 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 prin-
cipal lacks capacity to make health care decisions must consult with
another physician or nurse practitioner to confirm such determination.
Such consultation shall also be included within the patient's medical
record.] A PHYSICIAN WHO HAS BEEN APPOINTED AS A PATIENT'S AGENT SHALL
NOT MAKE THE DETERMINATION OF THE PATIENT'S CAPACITY TO MAKE HEALTH CARE
DECISIONS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08610-01-9
S. 5938 2
2. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT DECISIONS.
FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE
FOLLOWING SHALL APPLY:
(A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY SHALL BE
SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR
SOCIAL SERVICES PRACTITIONER. A CONCURRING DETERMINATION SHALL INCLUDE
AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE PATIENT'S INCAPACITY AND
THE LIKELIHOOD THAT THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY,
AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. HOSPITALS SHALL
ADOPT WRITTEN POLICIES IDENTIFYING THE TRAINING AND CREDENTIALS OF
HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE CONCURRING
DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS.
(b) If an attending physician 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
must be, or must consult, for the purpose of confirming the determi-
nation, with a qualified psychiatrist] EITHER SUCH PHYSICIAN OR THE
CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A PHYSI-
CIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE
OR ELIGIBLE TO BE CERTIFIED BY THE AMERICAN BOARD OF PSYCHIATRY AND
NEUROLOGY OR WHO IS CERTIFIED BY THE AMERICAN OSTEOPATHIC BOARD OF
NEUROLOGY AND PSYCHIATRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD. A
record of such consultation shall be included in the patient's medical
record.
(c) If the attending physician or attending nurse practitioner deter-
mines that a patient lacks capacity because of a developmental disabili-
ty, [the attending physician or attending nurse practitioner who makes
the determination must be, or must consult, for the purpose of confirm-
ing the determination, with] EITHER SUCH PHYSICIAN, NURSE PRACTITIONER
OR THE CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS:
EITHER (I) FOR A PATIENT IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES
PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMI-
NATION IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL;
OR (II) FOR A PATIENT IN ANY SETTING, a physician, nurse practitioner or
clinical psychologist who either is employed by a developmental disabil-
ities 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 or clinical psychologist possess specialized training
or three years experience in treating developmental disabilities. A
record of such consultation shall be included in the patient's medical
record.
[(d) A physician or nurse practitioner who has been appointed as a
patient's agent shall not make the determination of the patient's capac-
ity to make health care decisions.]
§ 3. Subdivision 3 of section 2994-c of the public health law, as
amended by chapter 430 of the laws of 2017, is amended to read as
follows:
3. Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS.
FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THEN
THE FOLLOWING SHALL APPLY: (a) An initial determination that a patient
lacks decision-making capacity shall be subject to a concurring determi-
S. 5938 3
nation, independently made, [where required by this subdivision] BY A
HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED OR OTHERWISE FORMALLY
AFFILIATED WITH THE HOSPITAL. A concurring determination shall include
an assessment of the cause and extent of the patient's incapacity and
the likelihood that the patient will regain decision-making capacity,
and shall be included in the patient's medical record. Hospitals shall
adopt written policies identifying the training and credentials of
health or social services practitioners qualified to provide concurring
determinations of incapacity.
(b) [(i) In a residential health care facility, a health or social
services practitioner employed by or otherwise formally affiliated with
the facility must independently determine whether an adult patient lacks
decision-making capacity.
(ii) In a general hospital a health or social services practitioner
employed by or otherwise formally affiliated with the facility must
independently determine whether an adult patient lacks decision-making
capacity if the surrogate's decision concerns the withdrawal or with-
holding of life-sustaining treatment.
(iii)] With respect to decisions regarding hospice care for a patient
in a general hospital or residential health care facility, the health or
social services practitioner must be employed by or otherwise formally
affiliated with the general hospital or residential health care facili-
ty.
(c) (i) If the attending physician or attending nurse practitioner
makes an initial determination that a patient lacks decision-making
capacity because of mental illness, either such physician OR THE CONCUR-
RING PRACTITIONER must have the following qualifications[, or another
physician with the following qualifications must independently determine
whether the patient lacks decision-making capacity]: a physician
licensed to practice medicine in New York state, who is a diplomate or
eligible to be certified by the American Board of Psychiatry and Neurol-
ogy or who is certified by the American Osteopathic Board of Neurology
and Psychiatry or is eligible to be certified by that board. A record of
such consultation shall be included in the patient's medical record.
(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 THE CONCURRING PRACTITIONER must have the following
qualifications[, or another professional with the following qualifica-
tions must independently determine whether the patient lacks decision-
making capacity]: EITHER (A) A HEALTH OR SOCIAL SERVICES PRACTITIONER
QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMINATION IN
ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL, OR (B) a
physician or clinical psychologist who either is employed by a develop-
mental disabilities services office named in section 13.17 of the mental
hygiene law, or who has been employed for a minimum of two years to
render care and service in a facility operated or licensed by the office
for people with developmental disabilities, or has been approved by the
commissioner of developmental disabilities in accordance with regu-
lations promulgated by such commissioner. Such regulations 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
S. 5938 4
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.
§ 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
as amended by chapter 430 of the laws of 2017, are amended to read as
follows:
3. Consent by a surrogate shall be governed by article twenty-nine-CC
of this chapter, except that[: (a) a second determination of capacity
shall be made by a health or social services practitioner; and (b)] the
authority of the ethics review committee set forth in article
twenty-nine-CC of this chapter shall apply only to nonhospital orders
issued in a hospital OR HOSPICE.
4. (a) When the concurrence of a second [physician or nurse practi-
tioner] HEALTH OR SOCIAL SERVICES PRACTITIONER is sought to fulfill the
requirements for the issuance of a nonhospital order not to resuscitate
for patients in a correctional facility, such second [physician or nurse
practitioner] HEALTH OR SOCIAL SERVICES PRACTITIONER shall be selected
by the chief medical officer of the department of corrections and commu-
nity supervision or his or her designee.
(b) When the concurrence of a second [physician or nurse practitioner]
HEALTH OR SOCIAL SERVICES PRACTITIONER is sought to fulfill the require-
ments for the issuance of a nonhospital order not to resuscitate for
[hospice and] home care patients, such second [physician or nurse prac-
titioner] HEALTH OR SOCIAL SERVICES PRACTITIONER shall be selected [by
the hospice medical director or hospice nurse coordinator designated by
the medical director or] by the home care services agency director of
patient care services[, as appropriate to the patient].
§ 5. Paragraph (a) of subdivision 4 of section 1750-b of the surro-
gate's court procedure act, as amended by chapter 198 of the laws of
2016, is amended to read as follows:
(a) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, [must confirm]
SHALL INITIALLY DETERMINE to a reasonable degree of medical certainty
that the person who is intellectually disabled lacks capacity to make
health care decisions. The determination thereof shall be included in
the person who is intellectually disabled's medical record, and shall
contain such attending physician's opinion regarding the cause and
nature of the person who is intellectually disabled's incapacity as well
as its extent and probable duration. The attending physician who makes
[the confirmation] SUCH INITIAL DETERMINATION shall consult with another
physician, or a licensed psychologist, to further confirm the person who
is intellectually disabled's lack of capacity. [The] IF THE ATTENDING
PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY
TO MAKE HEALTH CARE DECISIONS BECAUSE OF INTELLECTUAL DISABILITY, THEN
THE attending physician [who makes the confirmation,] or the physician
or licensed psychologist with whom the attending physician
consults[,]EITHER (I) FOR A PATIENT IN A GENERAL HOSPITAL, RESIDENTIAL
HEALTH CARE FACILITY OR HOSPICE, must [(i)] BE QUALIFIED BY TRAINING OR
EXPERIENCE TO MAKE SUCH DETERMINATION, IN ACCORDANCE WITH POLICIES
ADOPTED BY THE GENERAL HOSPITAL, RESIDENTIAL HEALTH CARE FACILITY OR
HOSPICE; OR (II) FOR A PATIENT IN ANY SETTING, MUST (A) be employed by a
developmental disabilities services office named in section 13.17 of the
mental hygiene law or employed by the office for people with develop-
mental disabilities to provide treatment and care to people with devel-
opmental disabilities, or [(ii)] (B) have been employed for a minimum of
S. 5938 5
two years to render care and service in a facility or program operated,
licensed or authorized by the office for people with developmental disa-
bilities, or [(iii)] (C) have been approved by the commissioner of the
office for people with developmental disabilities in accordance with
regulations promulgated by such commissioner. Such regulations shall
require that a physician or licensed psychologist possess specialized
training or three years experience in treating intellectual disability.
A record of such consultation shall be included in the person who is
intellectually disabled's medical record.
§ 6. Subdivision 4 of section 2982 of the public health law, as
amended by chapter 370 of the laws of 1991, is amended to read as
follows:
4. Priority over other surrogates. Health care decisions by an agent
on a principal's behalf pursuant to this article shall have priority
over decisions by any other person, except as otherwise provided in the
health care proxy or in subdivision [five] SIX of section two thousand
nine hundred eighty-three of this article.
§ 7. Subdivision 2 of section 2984 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
2. A health care provider shall comply with health care decisions made
by an agent in good faith under a health care proxy to the same extent
as if such decisions had been made by the principal, subject to any
limitations in the health care proxy and pursuant to the provisions of
subdivision [five] SIX of section two thousand nine hundred eighty-three
of this article.
§ 8. Paragraph (b) of subdivision 7 of section 2983 of the public
health law, as amended by chapter 342 of the laws of 2018 and such
subdivision as renumbered by section one of this act, is amended to read
as follows:
(b) The notice requirements set forth in subdivision [three] FOUR of
this section shall not apply to the confirmation required by this subdi-
vision.
§ 9. This act shall take effect on the ninetieth day after it shall
have become a law, provided that the amendments to article 29-C of the
public health law made by section two of this act shall apply to the
decisions made pursuant to health care proxies created prior to the
effective date of this act as well as those created thereafter.
