NY State Senate Bill 2019-S5940

Senate Bill S5940

2019-2020 Legislative Session

Relates to health care agents and proxies, decisions under the family health care decisions act and non-hospital orders not to resuscitate

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Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to health
May 16, 2019	referred to health

2019-S5940 (ACTIVE) - Details

See Assembly Version of this Bill:: A5973
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd Pub Health L, generally
Versions Introduced in Other Legislative Sessions:: 2021-2022: S5327, A175
2023-2024: S3283, A7184

2019-S5940 (ACTIVE) - Summary

Makes technical, minor and coordinating amendments regarding health care agents and proxies, decisions under the family health care decisions act, and nonhospital orders not to resuscitate.

2019-S5940 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5940

SPONSOR: RIVERA
 
TITLE OF BILL:  An act to amend the public health law, in relation to
making technical, minor and coordinating amendments regarding health
care agents and proxies, decisions under the family health care deci-
sions act, and nonhospital orders not to resuscitate

 
PURPOSE OF GENERAL IDEA OF BILL:

This is one of a series of seven bills, informally referred to as the
"Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8,
Laws of 2010) and other laws that govern health care decisions, includ-
ing life-sustaining treatment decisions, for patients who lack deci-
sion-making capacity. This bill makes technical changes to the FHCDA and
other laws.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends PHL § 2980, subdivision 10, to substitute the name
"office for people with developmental disabilities" (hereinafter
OPWDD)for the former name, office of mental retardation and develop-
mental disabilities" (hereinafter, OMRDD).

Section 2 amends PHL § 2981(b) to delete the outdated term "committee"
and to insert the correct reference to MPL Article 81.

Section 3 amends PHL § 2982(2) to add "physician assistant" to the list
of professionals, one of whom an agent must consult with before making a
decision.

Section 4 amends PHL § 2983(4) to eliminate outdated references to "the
conservator for, or committee of a principal with the correct reference
to "the guardian" of the principal.

Section 5 amends PHL § 2991 to substitute OPWDD for OMRDD.

Section 6 amends PHL § 2992 to replace outdated references to "the
conservator for, or committee of a principal with the correct reference
to "the guardian" of the principal.

Section 7 amends § 2993 to substitute OPWDD for OMRDD.

Section 8 amends three subdivisions in PHL § 2994-a (Definitions):
Amends "Health or social services practitioner" to include "licens ed
master social worker." Substitutes OPWDD for OMRDD. Changes "the hospi-
tal administrator" to "a hospital administrator."

Section 9 amends PHL § 2994-b(3)(a) to change "mental retardation or a
developmental disability" to "a developmental disability." Corrects a
spelling error.

Section 10 amends PHL § 2994-e to clarify that the obligation a hospital
has to notify the parents or guardian of an emancipated minor is to make
"diligent efforts" to notify such persons.


Section 11 amends PHL § 2994-m(4)(b)(iv) to clarify that the obligation
an ethics committee has to notify certain persons is to make "diligent
efforts" to notify such persons. Section 20 amends PHL § 29944(2) to
substitute OPWDD for OMRDD.

Section 12 amends PHL § 2994-t to correct references to the commission-
ers of OMH and OPWDD.

Section 13 amends PHL § 2994-u to direct the commissioner of health to
require that a copy of the statement of rights under this article be
furnished "to a patient or to the surrogate, or to the parent or guardi-
an of a minor patient, at or prior to admission to the hospital, or
within a reasonable time thereafter, and to any person on the surrogate
list who requests a copy of such statement from the hospital. The state-
ment shall also be made available to the hospital clinical staff."

Section 14 directs the commissioner of health to revise the statement of
rights that hospitals are required to post (known as the Patient's Bill
of Rights) by replacing the clause regarding orders not to resuscitate
with a statement about a broader range health care decision-making
rights.

Section 15 amends § 2994-aa subdivisions 12 and 13 and adds 14-a: to,
substitute OPWDD for OMRDD, to provide that a nonhospital order not to
resuscitate also applies to home care services agency personnel and
school health personnel, and to define "school health personnel.

Section 16 amends PHL § 2994-dd (2 and 6) to make the nonhospital DNR
provisions applicable to school health personnel.

Section 17 amends PHL § 2994-gg to substitute the word "article" for the
word "section" in two places.

Section 18 is the effective date: ninety days after it becomes a law.

 
JUSTIFICATION:

This bill amends the Family Health Care Decisions Act (Ch.8, Laws of
2010) (FHCDA). It makes technical, minor and coordinating amendments to
related laws.

 
BILL HISTORY:

New Bill

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect ninety days after the date on which this act
shall have become a law. The amendments to article 29-C of th e public
health law shall apply to decisions made pursuant to health care proxies
created prior to this act becoming law as well as those created there-
after.

2019-S5940 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5940
 
                        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, in relation to making  technical,
   minor  and  coordinating  amendments  regarding health care agents and
   proxies, decisions under the family health  care  decisions  act,  and
   nonhospital orders not to resuscitate
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 10 of section 2980 of the public health law, as
 amended by chapter 23 of the  laws  of  1994,  is  amended  to  read  as
 follows:
   10.  "Mental hygiene facility" means a residential facility, excluding
 family care homes, operated or licensed by the office of  mental  health
 or  the office [of mental retardation and] FOR PEOPLE WITH developmental
 disabilities.
   § 2. Paragraph (b) of subdivision 1 of  section  2981  of  the  public
 health  law,  as added by chapter 752 of the laws of 1990, is amended to
 read as follows:
   (b) For the purposes of this section, every adult  shall  be  presumed
 competent  to  appoint  a  health care agent unless such person has been
 adjudged incompetent or otherwise adjudged not competent  to  appoint  a
 health care agent, or unless a [committee or] guardian of the person has
 been  appointed for the adult pursuant to article [seventy-eight] EIGHT-
 Y-ONE of the mental hygiene law or article  seventeen-A  of  the  surro-
 gate's court procedure act.
   §  3.  Subdivision  2  of  section  2982  of the public health law, as
 amended by chapter 230 of the laws  of  2004,  is  amended  to  read  as
 follows:
   2. Decision-making standard. After consultation with a licensed physi-
 cian,   registered   nurse,  PHYSICIAN  ASSISTANT,  NURSE  PRACTITIONER,
 licensed psychologist, licensed master  social  worker,  or  a  licensed

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

                                                            LBD09564-03-9

 S. 5940                             2
 
 clinical  social worker, the agent shall make health care decisions: (a)
 in accordance with the principal's  wishes,  including  the  principal's
 religious  and  moral  beliefs; or (b) if the principal's wishes are not
 reasonably known and cannot with reasonable diligence be ascertained, in
 accordance  with the principal's best interests; provided, however, that
 if the principal's wishes regarding  the  administration  of  artificial
 nutrition and hydration are not reasonably known and cannot with reason-
 able diligence be ascertained, the agent shall not have the authority to
 make decisions regarding these measures.
   §  4.  Subdivision  3  of  section  2983  of the public health law, as
 amended by chapter 342 of the laws  of  2018,  is  amended  to  read  as
 follows:
   3. Notice of determination. Notice of a determination that a principal
 lacks  capacity  to  make health care decisions shall promptly be given:
 (a) to the principal, orally and in writing, where there  is  any  indi-
 cation  of the principal's ability to comprehend such notice; (b) to the
 agent; (c) if the principal is  in  or  is  transferred  from  a  mental
 hygiene  facility, to the facility director; and (d) to the [conservator
 for, or committee of, the principal] GUARDIAN, IF ANY.
   § 5. Subdivision 2 of section 2991 of the public health law, as  added
 by chapter 752 of the laws of 1990, is amended to read as follows:
   2. Such procedures shall be established in accordance with regulations
 issued by the commissioners of health, mental health, and [mental retar-
 dation  and]  developmental disabilities for facilities subject to their
 respective regulatory authorities.
   § 6. The opening paragraph of section 2992 of the public  health  law,
 as  amended  by  chapter  93  of the laws of 2014, is amended to read as
 follows:
   The health care provider[, the conservator for, or committee]  of  the
 principal  UNDER ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR ARTICLE
 SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT, members of the prin-
 cipal's family, a close friend of the principal as defined  in  subdivi-
 sion  [five]  FOUR  of  section  [two thousand nine] TWENTY-NINE hundred
 [sixty-one] NINETY-FOUR-A of  this  chapter,  or  the  commissioner  [of
 health],  THE  COMMISSIONER  OF  mental  health,  or THE COMMISSIONER OF
 developmental disabilities may commence a special proceeding pursuant to
 article four of the civil practice law and rules, in a court  of  compe-
 tent  jurisdiction, with respect to any dispute arising under this arti-
 cle, including, but not limited to, a proceeding to:
   § 7. Section 2993 of the public health law, as added by chapter 752 of
 the laws of 1990, is amended to read as follows:
   § 2993. Regulations. The commissioner  [of  health],  in  consultation
 with  the commissioners of [the office of] mental health and [the office
 of mental retardation and] developmental disabilities,  shall  establish
 such  regulations  as  may  be  necessary for the implementation of this
 article, subject to the provisions of subdivision two  of  section  [two
 thousand nine] TWENTY-NINE hundred ninety-one of this article.
   § 8. Subdivisions 17, 20 and 26 of section 2994-a of the public health
 law,  as  added by chapter 8 of the laws of 2010, are amended to read as
 follows:
   17. "Health or social [service] SERVICES practitioner" means a  regis-
 tered  professional  nurse,  nurse  practitioner,  physician,  physician
 assistant, psychologist, LICENSED MASTER SOCIAL WORKER or licensed clin-
 ical social worker, licensed or certified pursuant to the education  law
 acting within his or her scope of practice.

 S. 5940                             3

   20. "Mental hygiene facility" means a facility operated or licensed by
 the  office  of  mental health or the office [of mental retardation and]
 FOR PEOPLE WITH developmental disabilities as defined in subdivision six
 of section 1.03 of the mental hygiene law.
   26.  "Person connected with the case" means the patient, any person on
 the surrogate list, a parent or guardian of a  minor  patient,  [the]  A
 hospital  administrator,  an  attending  physician,  any other health or
 social services practitioner who is or has been directly involved in the
 patient's care, and any duly  authorized  state  agency,  including  the
 facility  director or regional director for a patient transferred from a
 mental hygiene facility and the facility director for a  patient  trans-
 ferred from a correctional facility.
   §  9.  The opening paragraph of subdivision 3 of section 2994-b of the
 public health law, as amended by chapter 430 of the  laws  of  2017,  is
 amended to read as follows:
   Prior to seeking or relying upon a health care decision by a surrogate
 for  a patient under this article, if the attending physician or attend-
 ing 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 shall
 make  reasonable efforts to determine whether paragraphs (a), (b) or (c)
 of this subdivision are applicable:
   § 10. Subdivision 3 of section 2994-e of the  public  health  law,  as
 amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
 follows:
   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  AND DOCUMENTS THE BASIS FOR SUCH DETERMINATION IN
 THE PATIENT'S MEDICAL RECORD, 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 attend-
 ing 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 MAKE DILIGENT EFFORTS TO notify such persons,  AND  DOCUMENT  SUCH
 DILIGENT  EFFORTS  IN THE PATIENT'S MEDICAL RECORD, prior to withholding
 or withdrawing life-sustaining treatment pursuant to this subdivision.
   § 11. Subparagraph (iv) of paragraph (b) of subdivision 4  of  section
 2994-m  of  the public health law, as amended by chapter 430 of the laws
 of 2017, is amended to read as follows:
   (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  HOSPITAL  MAKES
 DILIGENT  EFFORTS TO INFORM the persons identified in subparagraph (iii)
 of this paragraph [have been informed] of the  committee's  response  to
 the  case  AND  DOCUMENTS SUCH DILIGENT EFFORTS IN THE PATIENT'S MEDICAL
 RECORD.

 S. 5940                             4
 
   § 12. Subdivision 2 of section 2994-t of the  public  health  law,  as
 added by chapter 8 of the laws of 2010, is amended to read as follows:
   2.  The  commissioner,  in consultation with the commissioners of [the
 office of] mental health and [the  office  of  mental  retardation  and]
 developmental disabilities, shall promulgate regulations identifying the
 credentials  of  health care professionals qualified to provide an inde-
 pendent determination, pursuant to subdivision three of section  twenty-
 nine  hundred  ninety-four-c of this article, that a patient lacks deci-
 sion-making  capacity  because  of  mental  illness   or   developmental
 disability.
   §  13.  Section 2994-u of the public health law, as added by chapter 8
 of the laws of 2010, is amended to read as follows:
   § 2994-u. Rights to be publicized. The commissioner  shall  prepare  a
 statement summarizing the rights, duties, and requirements of this arti-
 cle  and  shall  require  that  a copy of such statement be furnished to
 [patients] A PATIENT or to [persons on] the surrogate [list known to the
 hospital], or to the [parents or guardians]  PARENT  OR  GUARDIAN  of  A
 minor  [patients]  PATIENT, at or prior to admission to the hospital, or
 within a reasonable time thereafter, and to [each member of  the  hospi-
 tal's  staff  directly  involved  with  patient  care] ANY PERSON ON THE
 SURROGATE LIST WHO REQUESTS A COPY OF SUCH STATEMENT FROM THE  HOSPITAL.
 THE  STATEMENT  SHALL  ALSO  BE  MADE AVAILABLE TO THE HOSPITAL CLINICAL
 STAFF.
   § 14. The commissioner of health shall revise the statement of  rights
 that  hospitals  are  required  to  post (known as the Patient's Bill of
 Rights) pursuant to paragraph (g) of subdivision 1 of  section  2803  of
 the  public  health law, by replacing the clause regarding orders not to
 resuscitate with a statement that more  generally  informs  patients  of
 their  right  to  receive  from  the  hospital  upon admission, and upon
 request, a more complete statement  of  their  rights  with  respect  to
 deciding  about  health  care, including appointing a health care agent,
 consenting to do-not-resuscitate orders and making other life-sustaining
 treatment decisions. The clause should also state in substance that  the
 hospital  will  also  provide  such statement upon request to any family
 member or friend of a patient who lacks decision-making capacity.
   § 15. Subdivisions 12 and 13 of section 2994-aa of the  public  health
 law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
 vision 13 as amended  by chapter 167 of the laws of 2011, are amended to
 read as follows:
   12. "Mental hygiene facility" means a residential facility operated or
 licensed  by the office of mental health [or the office of mental retar-
 dation and developmental disabilities].
   13. "Nonhospital order not to resuscitate" means an order that directs
 emergency medical  services  personnel,  hospice  personnel,  HOME  CARE
 SERVICES  AGENCY PERSONNEL and hospital emergency services personnel not
 to attempt cardiopulmonary resuscitation in the event a patient  suffers
 cardiac or respiratory arrest.
   §  16.  Subdivisions  2  and 6 of section 2994-dd of the public health
 law, as amended by chapter 430 of the laws of 2017, are amended to  read
 as follows:
   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] A standard bracelet [that] OR OTHER ARTICLE may be worn by  a
 patient  with  a  nonhospital  order not to resuscitate to identify that
 status; provided, however, that no person may require a patient to  wear
 such  a  bracelet  OR  OTHER  ARTICLE  and  that no person may require a

 S. 5940                             5
 
 patient to wear such a bracelet as a condition for honoring a  nonhospi-
 tal order not to resuscitate or for providing health care services.
   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
 or  a  hospital  under  subdivision  ten  of  section 1.03 of the mental
 hygiene law  OR  A  DEVELOPMENTAL  DISABILITIES  SERVICES  OFFICE  UNDER
 SECTION 13.17 OF THE MENTAL HYGIENE LAW.
   §  17. Section 2994-gg of the public health law, as added by chapter 8
 of the laws of 2010, is amended to read as follows:
   § 2994-gg. Immunity. No person shall be subjected to  criminal  prose-
 cution  or  civil  liability,  or be deemed to have engaged in unprofes-
 sional conduct, for honoring reasonably and in good  faith  pursuant  to
 this  [section]  ARTICLE  a  nonhospital  order  not to resuscitate, for
 disregarding a nonhospital order pursuant to section twenty-nine hundred
 ninety-four-ee of this article, or for other  actions  taken  reasonably
 and in good faith pursuant to this [section] ARTICLE.
   §  18.  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 shall apply to decisions made pursuant to health care
 proxies created prior to the effective date of this act as well as those
 created thereafter.

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