Bill Text: NY A07277 | 2017-2018 | General Assembly | Amended
Bill Title: Authorizes nurse practitioners to execute orders not to resuscitate and orders relating to life sustaining treatments.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2017-06-13 - substituted by s1869a [A07277 Detail]
Download: New_York-2017-A07277-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7277--A Cal. No. 245 2017-2018 Regular Sessions IN ASSEMBLY April 17, 2017 ___________ Introduced by M. of A. GOTTFRIED, D'URSO, LUPARDO, McDONALD, LIFTON, HUNTER -- read once and referred to the Committee on Health -- reported from committee, advanced to a third reading, amended and ordered reprinted, retaining its place on the order of third reading AN ACT to amend the public health law, in relation to authorizing nurse practitioners to execute orders not to resuscitate and orders pertain- ing to life sustaining treatments The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2960 of the public health law, as added by chapter 2 818 of the laws of 1987, is amended to read as follows: 3 § 2960. Legislative findings and purpose. The legislature finds that, 4 although cardiopulmonary resuscitation has proved invaluable in the 5 prevention of sudden, unexpected death, it is appropriate for an attend- 6 ing physician or attending nurse practitioner, in certain circumstances, 7 to issue an order not to attempt cardiopulmonary resuscitation of a 8 patient where appropriate consent has been obtained. The legislature 9 further finds that there is a need to clarify and establish the rights 10 and obligations of patients, their families, and health care providers 11 regarding cardiopulmonary resuscitation and the issuance of orders not 12 to resuscitate. 13 § 2. Subdivisions 2, 5 and 20 of section 2961 of the public health 14 law, subdivisions 2 and 5 as amended by chapter 8 of the laws of 2010, 15 and subdivision 20 as added by chapter 818 of the laws of 1987 and as 16 renumbered by chapter 370 of the laws of 1991, are amended and two new 17 subdivisions 2-a and 16 are added to read as follows: 18 2. "Attending physician" means the physician selected by or assigned 19 to a patient in a hospital who has primary responsibility for the treat- 20 ment and care of the patient. Where more than one physician and/or nurse 21 practitioner shares such responsibility, any such physician or nurse EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02551-02-7A. 7277--A 2 1 practitioner may act as the attending physician or attending nurse prac- 2 titioner pursuant to this article. 3 2-a. "Attending nurse practitioner" means the nurse practitioner 4 selected by or assigned to a patient in a hospital who has primary 5 responsibility for the treatment and care of the patient. Where more 6 than one physician and/or nurse practitioner shares such responsibility, 7 any such physician or nurse practitioner may act as the attending physi- 8 cian or attending nurse practitioner pursuant to this article. 9 5. "Close friend" means any person, eighteen years of age or older, 10 who is a close friend of the patient, or relative of the patient (other 11 than a spouse, adult child, parent, brother or sister) who has main- 12 tained such regular contact with the patient as to be familiar with the 13 patient's activities, health, and religious or moral beliefs and who 14 presents a signed statement to that effect to the attending physician or 15 attending nurse practitioner. 16 16. "Nurse practitioner" means a nurse practitioner certified pursuant 17 to section sixty-nine hundred ten of the education law who is practicing 18 in accordance with subdivision three of section sixty-nine hundred two 19 of the education law. 20 20. "Reasonably available" means that a person to be contacted can be 21 contacted with diligent efforts by an attending physician, attending 22 nurse practitioner or another person acting on behalf of the attending 23 physician, attending nurse practitioner or the hospital. 24 § 3. Subdivisions 2 and 3 of section 2962 of the public health law, as 25 added by chapter 818 of the laws of 1987, are amended to read as 26 follows: 27 2. It shall be lawful for the attending physician or attending nurse 28 practitioner to issue an order not to resuscitate a patient, provided 29 that the order has been issued pursuant to the requirements of this 30 article. The order shall be included in writing in the patient's chart. 31 An order not to resuscitate shall be effective upon issuance. 32 3. Before obtaining, pursuant to this article, the consent of the 33 patient, or of the surrogate of the patient, or parent or legal guardian 34 of the minor patient, to an order not to resuscitate, the attending 35 physician or attending nurse practitioner shall provide to the person 36 giving consent information about the patient's diagnosis and prognosis, 37 the reasonably foreseeable risks and benefits of cardiopulmonary resus- 38 citation for the patient, and the consequences of an order not to resus- 39 citate. 40 § 4. Section 2963 of the public health law, as added by chapter 818 of 41 the laws of 1987, subdivision 1, paragraph (b) of subdivision 3 and 42 subdivision 4 as amended by chapter 8 of the laws of 2010, paragraph (c) 43 of subdivision 3 as amended by section 5 of part J of chapter 56 of the 44 laws of 2012, is amended to read as follows: 45 § 2963. Determination of capacity to make a decision regarding 46 cardiopulmonary resuscitation. 1. Every adult shall be presumed to have 47 the capacity to make a decision regarding cardiopulmonary resuscitation 48 unless determined otherwise pursuant to this section or pursuant to a 49 court order or unless a guardian is authorized to decide about health 50 care for the adult pursuant to article eighty-one of the mental hygiene 51 law or article seventeen-A of the surrogate's court procedure act. The 52 attending physician or attending nurse practitioner shall not rely on 53 the presumption stated in this subdivision if clinical indicia of inca- 54 pacity are present. 55 2. A determination that an adult patient lacks capacity shall be made 56 by the attending physician or attending nurse practitioner to a reason-A. 7277--A 3 1 able degree of medical certainty. The determination shall be made in 2 writing and shall contain such attending physician's or attending nurse 3 practitioner's opinion regarding the cause and nature of the patient's 4 incapacity as well as its extent and probable duration. The determi- 5 nation shall be included in the patient's medical chart. 6 3. (a) At least one other physician, selected by a person authorized 7 by the hospital to make such selection, must concur in the determination 8 that an adult lacks capacity. The concurring determination shall be made 9 in writing after personal examination of the patient and shall contain 10 the physician's opinion regarding the cause and nature of the patient's 11 incapacity as well as its extent and probable duration. Each concurring 12 determination shall be included in the patient's medical chart. 13 (b) If the attending physician or attending nurse practitioner deter- 14 mines that a patient lacks capacity because of mental illness, the 15 concurring determination required by paragraph (a) of this subdivision 16 shall be provided by a physician licensed to practice medicine in New 17 York state, who is a diplomate or eligible to be certified by the Ameri- 18 can Board of Psychiatry and Neurology or who is certified by the Ameri- 19 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 20 certified by that board. 21 (c) If the attending physician or attending nurse practitioner deter- 22 mines that a patient lacks capacity because of a developmental disabili- 23 ty, the concurring determination required by paragraph (a) of this 24 subdivision shall be provided by a physician or psychologist employed by 25 a developmental disabilities services office named in section 13.17 of 26 the mental hygiene law, or who has been employed for a minimum of two 27 years to render care and service in a facility operated or licensed by 28 the office for people with developmental disabilities, or who has been 29 approved by the commissioner of developmental disabilities in accordance 30 with regulations promulgated by such commissioner. Such regulations 31 shall require that a physician or psychologist possess specialized 32 training or three years experience in treating developmental disabili- 33 ties. 34 4. Notice of a determination that the patient lacks capacity shall 35 promptly be given (a) to the patient, where there is any indication of 36 the patient's ability to comprehend such notice, together with a copy of 37 a statement prepared in accordance with section twenty-nine hundred 38 seventy-eight of this article, and (b) to the person on the surrogate 39 list highest in order of priority listed, when persons in prior subpara- 40 graphs are not reasonably available. Nothing in this subdivision shall 41 preclude or require notice to more than one person on the surrogate 42 list. 43 5. A determination that a patient lacks capacity to make a decision 44 regarding an order not to resuscitate pursuant to this section shall not 45 be construed as a finding that the patient lacks capacity for any other 46 purpose. 47 § 5. Subdivision 2 of section 2964 of the public health law, as added 48 by chapter 818 of the laws of 1987, is amended to read as follows: 49 2. (a) During hospitalization, an adult with capacity may express a 50 decision consenting to an order not to resuscitate orally in the pres- 51 ence of at least two witnesses eighteen years of age or older, one of 52 whom is a physician or nurse practitioner affiliated with the hospital 53 in which the patient is being treated. Any such decision shall be 54 recorded in the patient's medical chart. 55 (b) Prior to or during hospitalization, an adult with capacity may 56 express a decision consenting to an order not to resuscitate in writing,A. 7277--A 4 1 dated and signed in the presence of at least two witnesses eighteen 2 years of age or older who shall sign the decision. 3 (c) An attending physician or attending nurse practitioner who is 4 provided with or informed of a decision pursuant to this subdivision 5 shall record or include the decision in the patient's medical chart if 6 the decision has not been recorded or included, and either: 7 (i) promptly issue an order not to resuscitate the patient or issue an 8 order at such time as the conditions, if any, specified in the decision 9 are met, and inform the hospital staff responsible for the patient's 10 care of the order; or 11 (ii) promptly make his or her objection to the issuance of such an 12 order and the reasons therefor known to the patient and either make all 13 reasonable efforts to arrange for the transfer of the patient to another 14 physician or nurse practitioner, if necessary, or promptly submit the 15 matter to the dispute mediation system. 16 (d) Prior to issuing an order not to resuscitate a patient who has 17 expressed a decision consenting to an order not to resuscitate under 18 specified medical conditions, the attending physician or attending nurse 19 practitioner must make a determination, to a reasonable degree of 20 medical certainty, that such conditions exist, and include the determi- 21 nation in the patient's medical chart. 22 § 6. Subdivision 5 of section 2964 of the public health law is renum- 23 bered subdivision 3. 24 § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as 25 added by chapter 818 of the laws of 1987 and as renumbered by chapter 26 370 of the laws of 1991, paragraph (a) of subdivision 4 as amended by 27 chapter 370 of the laws of 1991 and paragraph (c) of subdivision 4 as 28 amended by chapter 8 of the laws of 2010, are amended to read as 29 follows: 30 3. (a) The surrogate shall make a decision regarding cardiopulmonary 31 resuscitation on the basis of the adult patient's wishes including a 32 consideration of the patient's religious and moral beliefs, or, if the 33 patient's wishes are unknown and cannot be ascertained, on the basis of 34 the patient's best interests. 35 (b) Notwithstanding any law to the contrary, the surrogate shall have 36 the same right as the patient to receive medical information and medical 37 records. 38 (c) A surrogate may consent to an order not to resuscitate on behalf 39 of an adult patient only if there has been a determination by an attend- 40 ing physician or attending nurse practitioner with the concurrence of 41 another physician or nurse practitioner selected by a person authorized 42 by the hospital to make such selection, given after personal examination 43 of the patient that, to a reasonable degree of medical certainty: 44 (i) the patient has a terminal condition; or 45 (ii) the patient is permanently unconscious; or 46 (iii) resuscitation would be medically futile; or 47 (iv) resuscitation would impose an extraordinary burden on the patient 48 in light of the patient's medical condition and the expected outcome of 49 resuscitation for the patient. 50 Each determination shall be included in the patient's medical chart. 51 4. (a) A surrogate shall express a decision consenting to an order not 52 to resuscitate either (i) in writing, dated, and signed in the presence 53 of one witness eighteen years of age or older who shall sign the deci- 54 sion, or (ii) orally, to two persons eighteen years of age or older, one 55 of whom is a physician or nurse practitioner affiliated with the hospi-A. 7277--A 5 1 tal in which the patient is being treated. Any such decision shall be 2 recorded in the patient's medical chart. 3 (b) The attending physician or attending nurse practitioner who is 4 provided with the decision of a surrogate shall include the decision in 5 the patient's medical chart and, if the surrogate has consented to the 6 issuance of an order not to resuscitate, shall either: 7 (i) promptly issue an order not to resuscitate the patient and inform 8 the hospital staff responsible for the patient's care of the order; or 9 (ii) promptly make the attending physician's or attending nurse prac- 10 titioner's objection to the issuance of such an order known to the 11 surrogate and either make all reasonable efforts to arrange for the 12 transfer of the patient to another physician or nurse practitioner, if 13 necessary, or promptly refer the matter to the dispute mediation system. 14 (c) If the attending physician or attending nurse practitioner has 15 actual notice of opposition to a surrogate's consent to an order not to 16 resuscitate by any person on the surrogate list, the physician or nurse 17 practitioner shall submit the matter to the dispute mediation system and 18 such order shall not be issued or shall be revoked in accordance with 19 the provisions of subdivision three of section twenty-nine hundred 20 seventy-two of this article. 21 § 8. Section 2966 of the public health law, as added by chapter 818 of 22 the laws of 1987, subdivision 3 as amended by chapter 8 of the laws of 23 2010, is amended to read as follows: 24 § 2966. Decision-making on behalf of an adult patient without capacity 25 for whom no surrogate is available. 1. If no surrogate is reasonably 26 available, willing to make a decision regarding issuance of an order not 27 to resuscitate, and competent to make a decision regarding issuance of 28 an order not to resuscitate on behalf of an adult patient who lacks 29 capacity and who had not previously expressed a decision regarding 30 cardiopulmonary resuscitation, an attending physician or attending nurse 31 practitioner (a) may issue an order not to resuscitate the patient, 32 provided that the attending physician or attending nurse practitioner 33 determines, in writing, that, to a reasonable degree of medical certain- 34 ty, resuscitation would be medically futile, and another physician or 35 nurse practitioner selected by a person authorized by the hospital to 36 make such selection, after personal examination of the patient, reviews 37 and concurs in writing with such determination, or, (b) shall issue an 38 order not to resuscitate the patient, provided that, pursuant to subdi- 39 vision one of section twenty-nine hundred seventy-six of this article, a 40 court has granted a judgment directing the issuance of such an order. 41 [3] 2. Notwithstanding any other provision of this section, where a 42 decision to consent to an order not to resuscitate has been made, notice 43 of the decision shall be given to the patient where there is any indi- 44 cation of the patient's ability to comprehend such notice. If the 45 patient objects, an order not to resuscitate shall not be issued. 46 § 9. Section 2967 of the public health law, as added by chapter 818 of 47 the laws of 1987, paragraph (b) of subdivision 2, subdivision 3 and 48 paragraphs (a) and (b) of subdivision 4 as amended by chapter 370 of the 49 laws of 1991, is amended to read as follows: 50 § 2967. Decision-making on behalf of a minor patient. 1. An attending 51 physician or attending nurse practitioner, in consultation with a 52 minor's parent or legal guardian, shall determine whether a minor has 53 the capacity to make a decision regarding resuscitation. 54 2. (a) The consent of a minor's parent or legal guardian and the 55 consent of the minor, if the minor has capacity, must be obtained prior 56 to issuing an order not to resuscitate the minor.A. 7277--A 6 1 (b) Where the attending physician or attending nurse practitioner has 2 reason to believe that there is another parent or a non-custodial parent 3 who has not been informed of a decision to issue an order not to resus- 4 citate the minor, the attending physician or attending nurse practition- 5 er, or someone acting on behalf of the attending physician or attending 6 nurse practitioner, shall make reasonable efforts to determine if the 7 uninformed parent or non-custodial parent has maintained substantial and 8 continuous contact with the minor and, if so, shall make diligent 9 efforts to notify that parent or non-custodial parent of the decision 10 prior to issuing the order. 11 3. A parent or legal guardian may consent to an order not to resusci- 12 tate on behalf of a minor only if there has been a written determination 13 by the attending physician or attending nurse practitioner, with the 14 written concurrence of another physician or nurse practitioner selected 15 by a person authorized by the hospital to make such selections given 16 after personal examination of the patient, that, to a reasonable degree 17 of medical certainty, the minor suffers from one of the medical condi- 18 tions set forth in paragraph (c) of subdivision three of section twen- 19 ty-nine hundred sixty-five of this article. Each determination shall be 20 included in the patient's medical chart. 21 4. (a) A parent or legal guardian of a minor, in making a decision 22 regarding cardiopulmonary resuscitation, shall consider the minor 23 patient's wishes, including a consideration of the minor patient's reli- 24 gious and moral beliefs, and shall express a decision consenting to 25 issuance of an order not to resuscitate either (i) in writing, dated and 26 signed in the presence of one witness eighteen years of age or older who 27 shall sign the decision, or (ii) orally, to two persons eighteen years 28 of age or older, one of whom is a physician or nurse practitioner affil- 29 iated with the hospital in which the patient is being treated. Any such 30 decision shall be recorded in the patient's medical chart. 31 (b) The attending physician or attending nurse practitioner who is 32 provided with the decision of a minor's parent or legal guardian, 33 expressed pursuant to this subdivision, and of the minor if the minor 34 has capacity, shall include such decision or decisions in the minor's 35 medical chart and shall comply with the provisions of paragraph (b) of 36 subdivision four of section twenty-nine hundred sixty-five of this arti- 37 cle. 38 (c) If the attending physician or attending nurse practitioner has 39 actual notice of the opposition of a parent or non-custodial parent to 40 consent by another parent to an order not to resuscitate a minor, the 41 physician or nurse practitioner shall submit the matter to the dispute 42 mediation system and such order shall not be issued or shall be revoked 43 in accordance with the provisions of subdivision three of section twen- 44 ty-nine hundred seventy-two of this article. 45 § 10. Section 2969 of the public health law, as added by chapter 818 46 of the laws of 1987, subdivision 2 as amended by chapter 370 of the laws 47 of 1991, is amended to read as follows: 48 § 2969. Revocation of consent to order not to resuscitate. 1. A person 49 may, at any time, revoke his or her consent to an order not to resusci- 50 tate himself or herself by making either a written or an oral declara- 51 tion to a physician or member of the nursing staff at the hospital where 52 he or she is being treated, or by any other act evidencing a specific 53 intent to revoke such consent. 54 2. Any surrogate, parent, or legal guardian may at any time revoke his 55 or her consent to an order not to resuscitate a patient by (a) notifying 56 a physician or member of the nursing staff of the revocation of consentA. 7277--A 7 1 in writing, dated and signed, or (b) orally notifying the attending 2 physician or attending nurse practitioner in the presence of a witness 3 eighteen years of age or older. 4 3. Any physician or nurse practitioner who is informed of or provided 5 with a revocation of consent pursuant to this section shall immediately 6 include the revocation in the patient's chart, cancel the order, and 7 notify the hospital staff responsible for the patient's care of the 8 revocation and cancellation. Any member of the nursing staff, other than 9 a nurse practitioner, who is informed of or provided with a revocation 10 of consent pursuant to this section shall immediately notify a physician 11 or nurse practitioner of such revocation. 12 § 11. Section 2970 of the public health law, as added by chapter 818 13 of the laws of 1987, subdivision 1 as amended by chapter 8 of the laws 14 of 2010, paragraph (b) of subdivision 2 as amended by chapter 370 of the 15 laws of 1991, is amended to read as follows: 16 § 2970. Physician and nurse practitioner review of the order not to 17 resuscitate. 1. For each patient for whom an order not to resuscitate 18 has been issued, the attending physician or attending nurse practitioner 19 shall review the patient's chart to determine if the order is still 20 appropriate in light of the patient's condition and shall indicate on 21 the patient's chart that the order has been reviewed each time the 22 patient is required to be seen by a physician but at least every sixty 23 days. 24 Failure to comply with this subdivision shall not render an order not 25 to resuscitate ineffective. 26 2. (a) If the attending physician or attending nurse practitioner 27 determines at any time that an order not to resuscitate is no longer 28 appropriate because the patient's medical condition has improved, the 29 physician or nurse practitioner shall immediately notify the person who 30 consented to the order. Except as provided in paragraph (b) of this 31 subdivision, if such person declines to revoke consent to the order, the 32 physician or nurse practitioner shall promptly (i) make reasonable 33 efforts to arrange for the transfer of the patient to another physician 34 or (ii) submit the matter to the dispute mediation system. 35 (b) If the order not to resuscitate was entered upon the consent of a 36 surrogate, parent, or legal guardian and the attending physician or 37 attending nurse practitioner who issued the order, or, if unavailable, 38 another attending physician or attending nurse practitioner at any time 39 determines that the patient does not suffer from one of the medical 40 conditions set forth in paragraph (c) of subdivision three of section 41 twenty-nine hundred sixty-five of this article, the attending physician 42 or attending nurse practitioner shall immediately include such determi- 43 nation in the patient's chart, cancel the order, and notify the person 44 who consented to the order and all hospital staff responsible for the 45 patient's care of the cancellation. 46 (c) If an order not to resuscitate was entered upon the consent of a 47 surrogate and the patient at any time gains or regains capacity, the 48 attending physician or attending nurse practitioner who issued the 49 order, or, if unavailable, another attending physician or attending 50 nurse practitioner shall immediately cancel the order and notify the 51 person who consented to the order and all hospital staff directly 52 responsible for the patient's care of the cancellation. 53 § 12. The opening paragraph and subdivision 2 of section 2971 of the 54 public health law, as amended by chapter 370 of the laws of 1991, are 55 amended to read as follows:A. 7277--A 8 1 If a patient for whom an order not to resuscitate has been issued is 2 transferred from a hospital to a different hospital the order shall 3 remain effective, unless revoked pursuant to this article, until the 4 attending physician or attending nurse practitioner first examines the 5 transferred patient, whereupon the attending physician or attending 6 nurse practitioner must either: 7 2. Cancel the order not to resuscitate, provided the attending physi- 8 cian or attending nurse practitioner immediately notifies the person who 9 consented to the order and the hospital staff directly responsible for 10 the patient's care of the cancellation. Such cancellation does not 11 preclude the entry of a new order pursuant to this article. 12 § 13. Subdivisions 1, 2 and 4 of section 2972 of the public health 13 law, subdivisions 1 and 4 as added by chapter 818 of the laws of 1987, 14 paragraph (b) of subdivision 1 as amended by chapter 370 of the laws of 15 1991 and subdivision 2 as amended by chapter 8 of the laws of 2010, are 16 amended to read as follows: 17 1. (a) Each hospital shall establish a mediation system for the 18 purpose of mediating disputes regarding the issuance of orders not to 19 resuscitate. 20 (b) The dispute mediation system shall be described in writing and 21 adopted by the hospital's governing authority. It may utilize existing 22 hospital resources, such as a patient advocate's office or hospital 23 chaplain's office, or it may utilize a body created specifically for 24 this purpose, but, in the event a dispute involves a patient deemed to 25 lack capacity pursuant to (i) paragraph (b) of subdivision three of 26 section twenty-nine hundred sixty-three of this article, the system must 27 include a physician or nurse practitioner eligible to provide a concur- 28 ring determination pursuant to such subdivision, or a family member or 29 guardian of the person of a person with a mental illness of the same or 30 similar nature, or (ii) paragraph (c) of subdivision three of section 31 twenty-nine hundred sixty-three of this article, the system must include 32 a physician or nurse practitioner eligible to provide a concurring 33 determination pursuant to such subdivision, or a family member or guard- 34 ian of the person of a person with a developmental disability of the 35 same or similar nature. 36 2. The dispute mediation system shall be authorized to mediate any 37 dispute, including disputes regarding the determination of the patient's 38 capacity, arising under this article between the patient and an attend- 39 ing physician, attending nurse practitioner or the hospital that is 40 caring for the patient and, if the patient is a minor, the patient's 41 parent, or among an attending physician, an attending nurse 42 practitioner, a parent, non-custodial parent, or legal guardian of a 43 minor patient, any person on the surrogate list, and the hospital that 44 is caring for the patient. 45 4. If a dispute between a patient who expressed a decision rejecting 46 cardiopulmonary resuscitation and an attending physician, attending 47 nurse practitioner or the hospital that is caring for the patient is 48 submitted to the dispute mediation system, and either: 49 (a) the dispute mediation system has concluded its efforts to resolve 50 the dispute, or 51 (b) seventy-two hours have elapsed from the time of submission without 52 resolution of the dispute, whichever shall occur first, the attending 53 physician or attending nurse practitioner shall either: (i) promptly 54 issue an order not to resuscitate the patient or issue the order at such 55 time as the conditions, if any, specified in the decision are met, and 56 inform the hospital staff responsible for the patient's care of theA. 7277--A 9 1 order; or (ii) promptly arrange for the transfer of the patient to 2 another physician, nurse practitioner or hospital. 3 § 14. Subdivision 1 of section 2973 of the public health law, as 4 amended by chapter 8 of the laws of 2010, is amended to read as follows: 5 1. The patient, an attending physician, attending nurse practitioner, 6 a parent, non-custodial parent, or legal guardian of a minor patient, 7 any person on the surrogate list, the hospital that is caring for the 8 patient and the facility director, may commence a special proceeding 9 pursuant to article four of the civil practice law and rules, in a court 10 of competent jurisdiction, with respect to any dispute arising under 11 this article, except that the decision of a patient not to consent to 12 issuance of an order not to resuscitate may not be subjected to judicial 13 review. In any proceeding brought pursuant to this subdivision challeng- 14 ing a decision regarding issuance of an order not to resuscitate on the 15 ground that the decision is contrary to the patient's wishes or best 16 interests, the person or entity challenging the decision must show, by 17 clear and convincing evidence, that the decision is contrary to the 18 patient's wishes including consideration of the patient's religious and 19 moral beliefs, or, in the absence of evidence of the patient's wishes, 20 that the decision is contrary to the patient's best interests. In any 21 other proceeding brought pursuant to this subdivision, the court shall 22 make its determination based upon the applicable substantive standards 23 and procedures set forth in this article. 24 § 15. Section 2976 of the public health law, as added by chapter 818 25 of the laws of 1987, is amended to read as follows: 26 § 2976. Judicially approved order not to resuscitate. 1. If no surro- 27 gate is reasonably available, willing to make a decision regarding issu- 28 ance of an order not to resuscitate, and competent to make a decision 29 regarding issuance of an order not to resuscitate on behalf of an adult 30 patient who lacks capacity and who had not previously expressed a deci- 31 sion regarding cardiopulmonary resuscitation pursuant to this article, 32 an attending physician or attending nurse practitioner or hospital may 33 commence a special proceeding pursuant to article four of the civil 34 practice law and rules, in a court of competent jurisdiction, for a 35 judgment directing the physician or nurse practitioner to issue an order 36 not to resuscitate where the patient has a terminal condition, is perma- 37 nently unconscious, or resuscitation would impose an extraordinary 38 burden on the patient in light of the patient's medical condition and 39 the expected outcome of resuscitation for the patient, and issuance of 40 an order not to resuscitate is consistent with the patient's wishes 41 including a consideration of the patient's religious and moral beliefs 42 or, in the absence of evidence of the patient's wishes, the patient's 43 best interests. 44 2. Nothing in this article shall be construed to preclude a court of 45 competent jurisdiction from approving the issuance of an order not to 46 resuscitate under circumstances other than those under which such an 47 order may be issued pursuant to this article. 48 § 16. Subdivisions 2 and 4 of section 2994-a of the public health law, 49 as added by chapter 8 of the laws of 2010, are amended and two new 50 subdivisions 2-a and 22-a are added to read as follows: 51 2. "Attending physician" means a physician, selected by or assigned to 52 a patient pursuant to hospital policy, who has primary responsibility 53 for the treatment and care of the patient. Where more than one physician 54 and/or nurse practitioner shares such responsibility, or where a physi- 55 cian or nurse practitioner is acting on the attending physician's or 56 attending nurse practitioner's behalf, any such physician or nurse prac-A. 7277--A 10 1 titioner may act as an attending physician or attending nurse practi- 2 tioner pursuant to this article. 3 2-a. "Attending nurse practitioner" means a nurse practitioner, 4 selected by or assigned to a patient pursuant to hospital policy, who 5 has primary responsibility for the treatment and care of the patient. 6 Where more than one physician and/or nurse practitioner shares such 7 responsibility, or where a physician or nurse practitioner is acting on 8 the attending physician's or attending nurse practitioner's behalf, any 9 such physician or nurse practitioner may act as an attending physician 10 or attending nurse practitioner pursuant to this article. 11 4. "Close friend" means any person, eighteen years of age or older, 12 who is a close friend of the patient, or a relative of the patient 13 (other than a spouse, adult child, parent, brother or sister), who has 14 maintained such regular contact with the patient as to be familiar with 15 the patient's activities, health, and religious or moral beliefs, and 16 who presents a signed statement to that effect to the attending physi- 17 cian or attending nurse practitioner. 18 22-a. "Nurse practitioner" means a nurse practitioner certified pursu- 19 ant to section sixty-nine hundred ten of the education law who is prac- 20 ticing in accordance with subdivision three of section sixty-nine 21 hundred two of the education law. 22 § 17. Subdivisions 2 and 3 of section 2994-b of the public health law, 23 as added by chapter 8 of the laws of 2010, are amended to read as 24 follows: 25 2. Prior to seeking or relying upon a health care decision by a surro- 26 gate for a patient under this article, the attending physician or 27 attending nurse practitioner shall make reasonable efforts to determine 28 whether the patient has a health care agent appointed pursuant to arti- 29 cle twenty-nine-C of this chapter. If so, health care decisions for the 30 patient shall be governed by such article, and shall have priority over 31 decisions by any other person except the patient or as otherwise 32 provided in the health care proxy. 33 3. Prior to seeking or relying upon a health care decision by a surro- 34 gate for a patient under this article, if the attending physician or 35 attending nurse practitioner has reason to believe that the patient has 36 a history of receiving services for mental retardation or a develop- 37 mental disability; it reasonably appears to the attending physician or 38 attending nurse practitioner that the patient has mental retardation or 39 a developmental disability; or the attending physician or attending 40 nurse practitioner has reason to believe that the patient has been 41 transferred from a mental hygiene facility operated or licensed by the 42 office of mental health, then such physician or nurse practitioner shall 43 make reasonable efforts to determine whether paragraphs (a), (b) or (c) 44 of this subdivision are applicable: 45 (a) If the patient has a guardian appointed by a court pursuant to 46 article seventeen-A of the surrogate's court procedure act, health care 47 decisions for the patient shall be governed by section seventeen hundred 48 fifty-b of the surrogate's court [proceedure] procedure act and not by 49 this article. 50 (b) If a patient does not have a guardian appointed by a court pursu- 51 ant to article seventeen-A of the surrogate's court procedure act but 52 falls within the class of persons described in paragraph (a) of subdivi- 53 sion one of section seventeen hundred fifty-b of such act, decisions to 54 withdraw or withhold life-sustaining treatment for the patient shall be 55 governed by section seventeen hundred fifty-b of the surrogate's court 56 procedure act and not by this article.A. 7277--A 11 1 (c) If a health care decision for a patient cannot be made under para- 2 graphs (a) or (b) of this subdivision, but consent for the decision may 3 be provided pursuant to the mental hygiene law or regulations of the 4 office of mental health or the office [of mental retardation and] for 5 people with developmental disabilities, then the decision shall be 6 governed by such statute or regulations and not by this article. 7 § 18. Subdivisions 2, 3 and 7 of section 2994-c of the public health 8 law, as added by chapter 8 of the laws of 2010, paragraph (b) of subdi- 9 vision 3 as amended by chapter 167 of the laws of 2011 and subparagraph 10 (ii) of paragraph (c) of subdivision 3 as amended by section 8 of part J 11 of chapter 56 of the laws of 2012, are amended to read as follows: 12 2. Initial determination by attending physician or attending nurse 13 practitioner. An attending physician or attending nurse practitioner 14 shall make an initial determination that an adult patient lacks deci- 15 sion-making capacity to a reasonable degree of medical certainty. Such 16 determination shall include an assessment of the cause and extent of the 17 patient's incapacity and the likelihood that the patient will regain 18 decision-making capacity. 19 3. Concurring determinations. (a) An initial determination that a 20 patient lacks decision-making capacity shall be subject to a concurring 21 determination, independently made, where required by this subdivision. A 22 concurring determination shall include an assessment of the cause and 23 extent of the patient's incapacity and the likelihood that the patient 24 will regain decision-making capacity, and shall be included in the 25 patient's medical record. Hospitals shall adopt written policies identi- 26 fying the training and credentials of health or social services practi- 27 tioners qualified to provide concurring determinations of incapacity. 28 (b) (i) In a residential health care facility, a health or social 29 services practitioner employed by or otherwise formally affiliated with 30 the facility must independently determine whether an adult patient lacks 31 decision-making capacity. 32 (ii) In a general hospital a health or social services practitioner 33 employed by or otherwise formally affiliated with the facility must 34 independently determine whether an adult patient lacks decision-making 35 capacity if the surrogate's decision concerns the withdrawal or with- 36 holding of life-sustaining treatment. 37 (iii) With respect to decisions regarding hospice care for a patient 38 in a general hospital or residential health care facility, the health or 39 social services practitioner must be employed by or otherwise formally 40 affiliated with the general hospital or residential health care facili- 41 ty. 42 (c) (i) If the attending physician or attending nurse practitioner 43 makes an initial determination that a patient lacks decision-making 44 capacity because of mental illness, either such physician must have the 45 following qualifications, or another physician with the following quali- 46 fications must independently determine whether the patient lacks deci- 47 sion-making capacity: a physician licensed to practice medicine in New 48 York state, who is a diplomate or eligible to be certified by the Ameri- 49 can Board of Psychiatry and Neurology or who is certified by the Ameri- 50 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 51 certified by that board. A record of such consultation shall be included 52 in the patient's medical record. 53 (ii) If the attending physician or attending nurse practitioner makes 54 an initial determination that a patient lacks decision-making capacity 55 because of a developmental disability, either such physician or nurse 56 practitioner must have the following qualifications, or another profes-A. 7277--A 12 1 sional with the following qualifications must independently determine 2 whether the patient lacks decision-making capacity: a physician or clin- 3 ical psychologist who either is employed by a developmental disabilities 4 services office named in section 13.17 of the mental hygiene law, or who 5 has been employed for a minimum of two years to render care and service 6 in a facility operated or licensed by the office for people with devel- 7 opmental disabilities, or has been approved by the commissioner of 8 developmental disabilities in accordance with regulations promulgated by 9 such commissioner. Such regulations shall require that a physician or 10 clinical psychologist possess specialized training or three years expe- 11 rience in treating developmental disabilities. A record of such consul- 12 tation shall be included in the patient's medical record. 13 (d) If an attending physician or attending nurse practitioner has 14 determined that the patient lacks decision-making capacity and if the 15 health or social services practitioner consulted for a concurring deter- 16 mination disagrees with the attending physician's or the attending nurse 17 practitioner's determination, the matter shall be referred to the ethics 18 review committee if it cannot otherwise be resolved. 19 7. Confirmation of continued lack of decision-making capacity. An 20 attending physician or attending nurse practitioner shall confirm the 21 adult patient's continued lack of decision-making capacity before 22 complying with health care decisions made pursuant to this article, 23 other than those decisions made at or about the time of the initial 24 determination. A concurring determination of the patient's continued 25 lack of decision-making capacity shall be required if the subsequent 26 health care decision concerns the withholding or withdrawal of life-sus- 27 taining treatment. Health care providers shall not be required to inform 28 the patient or surrogate of the confirmation. 29 § 19. Subdivisions 2, 3 and 5 of section 2994-d of the public health 30 law, as added by chapter 8 of the laws of 2010, the subdivision heading 31 and the opening paragraph of subdivision 5 as amended by chapter 167 of 32 the laws of 2011, are amended to read as follows: 33 2. Restrictions on who may be a surrogate. An operator, administrator, 34 or employee of a hospital or a mental hygiene facility from which the 35 patient was transferred, or a physician or nurse practitioner who has 36 privileges at the hospital or a health care provider under contract with 37 the hospital may not serve as the surrogate for any adult who is a 38 patient of such hospital, unless such individual is related to the 39 patient by blood, marriage, domestic partnership, or adoption, or is a 40 close friend of the patient whose friendship with the patient preceded 41 the patient's admission to the facility. If a physician or nurse practi- 42 tioner serves as surrogate, the physician or nurse practitioner shall 43 not act as the patient's attending physician or attending nurse practi- 44 tioner after his or her authority as surrogate begins. 45 3. Authority and duties of surrogate. (a) Scope of surrogate's author- 46 ity. 47 (i) Subject to the standards and limitations of this article, the 48 surrogate shall have the authority to make any and all health care deci- 49 sions on the adult patient's behalf that the patient could make. 50 (ii) Nothing in this article shall obligate health care providers to 51 seek the consent of a surrogate if an adult patient has already made a 52 decision about the proposed health care, expressed orally or in writing 53 or, with respect to a decision to withdraw or withhold life-sustaining 54 treatment expressed either orally during hospitalization in the presence 55 of two witnesses eighteen years of age or older, at least one of whom is 56 a health or social services practitioner affiliated with the hospital,A. 7277--A 13 1 or in writing. If an attending physician or attending nurse practitioner 2 relies on the patient's prior decision, the physician or nurse practi- 3 tioner shall record the prior decision in the patient's medical record. 4 If a surrogate has already been designated for the patient, the attend- 5 ing physician or attending nurse practitioner shall make reasonable 6 efforts to notify the surrogate prior to implementing the decision; 7 provided that in the case of a decision to withdraw or withhold life- 8 sustaining treatment, the attending physician or attending nurse practi- 9 tioner shall make diligent efforts to notify the surrogate and, if 10 unable to notify the surrogate, shall document the efforts that were 11 made to do so. 12 (b) Commencement of surrogate's authority. The surrogate's authority 13 shall commence upon a determination, made pursuant to section twenty- 14 nine hundred ninety-four-c of this article, that the adult patient lacks 15 decision-making capacity and upon identification of a surrogate pursuant 16 to subdivision one of this section. In the event an attending physician 17 or nurse practitioner determines that the patient has regained deci- 18 sion-making capacity, the authority of the surrogate shall cease. 19 (c) Right and duty to be informed. Notwithstanding any law to the 20 contrary, the surrogate shall have the right to receive medical informa- 21 tion and medical records necessary to make informed decisions about the 22 patient's health care. Health care providers shall provide and the 23 surrogate shall seek information necessary to make an informed decision, 24 including information about the patient's diagnosis, prognosis, the 25 nature and consequences of proposed health care, and the benefits and 26 risks of and alternative to proposed health care. 27 5. Decisions to withhold or withdraw life-sustaining treatment. In 28 addition to the standards set forth in subdivision four of this section, 29 decisions by surrogates to withhold or withdraw life-sustaining treat- 30 ment (including decisions to accept a hospice plan of care that provides 31 for the withdrawal or withholding of life-sustaining treatment) shall be 32 authorized only if the following conditions are satisfied, as applica- 33 ble: 34 (a)(i) Treatment would be an extraordinary burden to the patient and 35 an attending physician or attending nurse practitioner determines, with 36 the independent concurrence of another physician or nurse practitioner, 37 that, to a reasonable degree of medical certainty and in accord with 38 accepted medical standards, (A) the patient has an illness or injury 39 which can be expected to cause death within six months, whether or not 40 treatment is provided; or (B) the patient is permanently unconscious; or 41 (ii) The provision of treatment would involve such pain, suffering or 42 other burden that it would reasonably be deemed inhumane or extraor- 43 dinarily burdensome under the circumstances and the patient has an irre- 44 versible or incurable condition, as determined by an attending physician 45 or attending nurse practitioner with the independent concurrence of 46 another physician or nurse practitioner to a reasonable degree of 47 medical certainty and in accord with accepted medical standards. 48 (b) In a residential health care facility, a surrogate shall have the 49 authority to refuse life-sustaining treatment under subparagraph (ii) of 50 paragraph (a) of this subdivision only if the ethics review committee, 51 including at least one physician or nurse practitioner who is not 52 directly responsible for the patient's care, or a court of competent 53 jurisdiction, reviews the decision and determines that it meets the 54 standards set forth in this article. This requirement shall not apply to 55 a decision to withhold cardiopulmonary resuscitation.A. 7277--A 14 1 (c) In a general hospital, if the attending physician or attending 2 nurse practitioner objects to a surrogate's decision, under subparagraph 3 (ii) of paragraph (a) of this subdivision, to withdraw or withhold 4 nutrition and hydration provided by means of medical treatment, the 5 decision shall not be implemented until the ethics review committee, 6 including at least one physician or nurse practitioner who is not 7 directly responsible for the patient's care, or a court of competent 8 jurisdiction, reviews the decision and determines that it meets the 9 standards set forth in this subdivision and subdivision four of this 10 section. 11 (d) Providing nutrition and hydration orally, without reliance on 12 medical treatment, is not health care under this article and is not 13 subject to this article. 14 (e) Expression of decisions. The surrogate shall express a decision to 15 withdraw or withhold life-sustaining treatment either orally to an 16 attending physician or attending nurse practitioner or in writing. 17 § 20. Subdivisions 2 and 3 of section 2994-e of the public health law, 18 as added by chapter 8 of the laws of 2010, are amended to read as 19 follows: 20 2. Decision-making standards and procedures for minor patient. (a) The 21 parent or guardian of a minor patient shall make decisions in accordance 22 with the minor's best interests, consistent with the standards set forth 23 in subdivision four of section twenty-nine hundred ninety-four-d of this 24 article, taking into account the minor's wishes as appropriate under the 25 circumstances. 26 (b) An attending physician or attending nurse practitioner, in consul- 27 tation with a minor's parent or guardian, shall determine whether a 28 minor patient has decision-making capacity for a decision to withhold or 29 withdraw life-sustaining treatment. If the minor has such capacity, a 30 parent's or guardian's decision to withhold or withdraw life-sustaining 31 treatment for the minor may not be implemented without the minor's 32 consent. 33 (c) Where a parent or guardian of a minor patient has made a decision 34 to withhold or withdraw life-sustaining treatment and an attending 35 physician or attending nurse practitioner has reason to believe that the 36 minor patient has a parent or guardian who has not been informed of the 37 decision, including a non-custodial parent or guardian, an attending 38 physician,attending nurse practitioner or someone acting on his or her 39 behalf, shall make reasonable efforts to determine if the uninformed 40 parent or guardian has maintained substantial and continuous contact 41 with the minor and, if so, shall make diligent efforts to notify that 42 parent or guardian prior to implementing the decision. 43 3. Decision-making standards and procedures for emancipated minor 44 patient. (a) If an attending physician or attending nurse practitioner 45 determines that a patient is an emancipated minor patient with deci- 46 sion-making capacity, the patient shall have the authority to decide 47 about life-sustaining treatment. Such authority shall include a decision 48 to withhold or withdraw life-sustaining treatment if an attending physi- 49 cian or attending nurse practitioner and the ethics review committee 50 determine that the decision accords with the standards for surrogate 51 decisions for adults, and the ethics review committee approves the deci- 52 sion. 53 (b) If the hospital can with reasonable efforts ascertain the identity 54 of the parents or guardian of an emancipated minor patient, the hospital 55 shall notify such persons prior to withholding or withdrawing life-sus- 56 taining treatment pursuant to this subdivision.A. 7277--A 15 1 § 21. Section 2994-f of the public health law, as added by chapter 8 2 of the laws of 2010, is amended to read as follows: 3 § 2994-f. Obligations of attending physician or attending nurse prac- 4 titioner. 1. An attending physician or attending nurse practitioner 5 informed of a decision to withdraw or withhold life-sustaining treatment 6 made pursuant to the standards of this article shall record the decision 7 in the patient's medical record, review the medical basis for the deci- 8 sion, and shall either: (a) implement the decision, or (b) promptly make 9 his or her objection to the decision and the reasons for the objection 10 known to the decision-maker, and either make all reasonable efforts to 11 arrange for the transfer of the patient to another physician or nurse 12 practitioner, if necessary, or promptly refer the matter to the ethics 13 review committee. 14 2. If an attending physician or attending nurse practitioner has actu- 15 al notice of the following objections or disagreements, he or she shall 16 promptly refer the matter to the ethics review committee if the 17 objection or disagreement cannot otherwise be resolved: 18 (a) A health or social services practitioner consulted for a concur- 19 ring determination that an adult patient lacks decision-making capacity 20 disagrees with the attending physician's or attending nurse practition- 21 er's determination; or 22 (b) Any person on the surrogate list objects to the designation of the 23 surrogate pursuant to subdivision one of section twenty-nine hundred 24 ninety-four-d of this article; or 25 (c) Any person on the surrogate list objects to a surrogate's deci- 26 sion; or 27 (d) A parent or guardian of a minor patient objects to the decision by 28 another parent or guardian of the minor; or 29 (e) A minor patient refuses life-sustaining treatment, and the minor's 30 parent or guardian wishes the treatment to be provided, or the minor 31 patient objects to an attending physician's or attending nurse practi- 32 tioner's determination about decision-making capacity or recommendation 33 about life-sustaining treatment. 34 3. Notwithstanding the provisions of this section or subdivision one 35 of section twenty-nine hundred ninety-four-q of this article, if a 36 surrogate directs the provision of life-sustaining treatment, the denial 37 of which in reasonable medical judgment would be likely to result in the 38 death of the patient, a hospital or individual health care provider that 39 does not wish to provide such treatment shall nonetheless comply with 40 the surrogate's decision pending either transfer of the patient to a 41 willing hospital or individual health care provider, or judicial review 42 in accordance with section twenty-nine hundred ninety-four-r of this 43 article. 44 § 22. Subdivisions 3,4,5, 5-a and 6 of section 2994-g of the public 45 health law, subdivisions 3, 4, 5 and 6 as added by chapter 8 of the laws 46 of 2010, subparagraph (iii) of paragraph (b) of subdivision 4 as amended 47 by chapter 167 of the laws of 2011 and subdivision 5-a as added by chap- 48 ter 107 of the laws of 2015, are amended to read as follows: 49 3. Routine medical treatment. (a) For purposes of this subdivision, 50 "routine medical treatment" means any treatment, service, or procedure 51 to diagnose or treat an individual's physical or mental condition, such 52 as the administration of medication, the extraction of bodily fluids for 53 analysis, or dental care performed with a local anesthetic, for which 54 health care providers ordinarily do not seek specific consent from the 55 patient or authorized representative. It shall not include the long-term 56 provision of treatment such as ventilator support or a nasogastric tubeA. 7277--A 16 1 but shall include such treatment when provided as part of post-operative 2 care or in response to an acute illness and recovery is reasonably 3 expected within one month or less. 4 (b) An attending physician or attending nurse practitioner shall be 5 authorized to decide about routine medical treatment for an adult 6 patient who has been determined to lack decision-making capacity pursu- 7 ant to section twenty-nine hundred ninety-four-c of this article. Noth- 8 ing in this subdivision shall require health care providers to obtain 9 specific consent for treatment where specific consent is not otherwise 10 required by law. 11 4. Major medical treatment. (a) For purposes of this subdivision, 12 "major medical treatment" means any treatment, service or procedure to 13 diagnose or treat an individual's physical or mental condition: (i) 14 where general anesthetic is used; or (ii) which involves any significant 15 risk; or (iii) which involves any significant invasion of bodily integ- 16 rity requiring an incision, producing substantial pain, discomfort, 17 debilitation or having a significant recovery period; or (iv) which 18 involves the use of physical restraints, as specified in regulations 19 promulgated by the commissioner, except in an emergency; or (v) which 20 involves the use of psychoactive medications, except when provided as 21 part of post-operative care or in response to an acute illness and 22 treatment is reasonably expected to be administered over a period of 23 forty-eight hours or less, or when provided in an emergency. 24 (b) A decision to provide major medical treatment, made in accordance 25 with the following requirements, shall be authorized for an adult 26 patient who has been determined to lack decision-making capacity pursu- 27 ant to section twenty-nine hundred ninety-four-c of this article. 28 (i) An attending physician or attending nurse practitioner shall make 29 a recommendation in consultation with hospital staff directly responsi- 30 ble for the patient's care. 31 (ii) In a general hospital, at least one other physician or nurse 32 practitioner designated by the hospital must independently determine 33 that he or she concurs that the recommendation is appropriate. 34 (iii) In a residential health care facility, and for a hospice patient 35 not in a general hospital, the medical director of the facility or 36 hospice, or a physician or nurse practitioner designated by the medical 37 director, must independently determine that he or she concurs that the 38 recommendation is appropriate; provided that if the medical director is 39 the patient's attending physician or attending nurse practitioner, a 40 different physician or nurse practitioner designated by the residential 41 health care facility or hospice must make this independent determi- 42 nation. Any health or social services practitioner employed by or other- 43 wise formally affiliated with the facility or hospice may provide a 44 second opinion for decisions about physical restraints made pursuant to 45 this subdivision. 46 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A 47 court of competent jurisdiction may make a decision to withhold or with- 48 draw life-sustaining treatment for an adult patient who has been deter- 49 mined to lack decision-making capacity pursuant to section twenty-nine 50 hundred ninety-four-c of this article if the court finds that the deci- 51 sion accords with standards for decisions for adults set forth in subdi- 52 visions four and five of section twenty-nine hundred ninety-four-d of 53 this article. 54 (b) If the attending physician or attending nurse practitioner, with 55 independent concurrence of a second physician or nurse practitionerA. 7277--A 17 1 designated by the hospital, determines to a reasonable degree of medical 2 certainty that: 3 (i) life-sustaining treatment offers the patient no medical benefit 4 because the patient will die imminently, even if the treatment is 5 provided; and 6 (ii) the provision of life-sustaining treatment would violate accepted 7 medical standards, then such treatment may be withdrawn or withheld from 8 an adult patient who has been determined to lack decision-making capaci- 9 ty pursuant to section twenty-nine hundred ninety-four-c of this arti- 10 cle, without judicial approval. This paragraph shall not apply to any 11 treatment necessary to alleviate pain or discomfort. 12 5-a. Decisions regarding hospice care. An attending physician or 13 attending nurse practitioner shall be authorized to make decisions 14 regarding hospice care and execute appropriate documents for such deci- 15 sions (including a hospice election form) for an adult patient under 16 this section who is hospice eligible in accordance with the following 17 requirements. 18 (a) The attending physician or attending nurse practitioner shall make 19 decisions under this section in consultation with staff directly respon- 20 sible for the patient's care, and shall base his or her decisions on the 21 standards for surrogate decisions set forth in subdivisions four and 22 five of section twenty-nine hundred ninety-four-d of this article; 23 (b) There is a concurring opinion as follows: 24 (i) in a general hospital, at least one other physician or nurse prac- 25 titioner designated by the hospital must independently determine that he 26 or she concurs that the recommendation is consistent with such standards 27 for surrogate decisions; 28 (ii) in a residential health care facility, the medical director of 29 the facility, or a physician or nurse practitioner designated by the 30 medical director, must independently determine that he or she concurs 31 that the recommendation is consistent with such standards for surrogate 32 decisions; provided that if the medical director is the patient's 33 attending physician or attending nurse practitioner, a different physi- 34 cian or nurse practitioner designated by the residential health care 35 facility must make this independent determination; or 36 (iii) in settings other than a general hospital or residential health 37 care facility, the medical director of the hospice, or a physician 38 designated by the medical director, must independently determine that he 39 or she concurs that the recommendation is medically appropriate and 40 consistent with such standards for surrogate decisions; provided that if 41 the medical director is the patient's attending physician, a different 42 physician designated by the hospice must make this independent determi- 43 nation; and 44 (c) The ethics review committee of the general hospital, residential 45 health care facility or hospice, as applicable, including at least one 46 physician or nurse practitioner who is not the patient's attending 47 physician or attending nurse practitioner, or a court of competent 48 jurisdiction, must review the decision and determine that it is consist- 49 ent with such standards for surrogate decisions. 50 6. Physician or nurse practitioner objection. If a physician or nurse 51 practitioner consulted for a concurring opinion objects to an attending 52 physician's or attending nurse practitioner's recommendation or determi- 53 nation made pursuant to this section, or a member of the hospital staff 54 directly responsible for the patient's care objects to an attending 55 physician's or attending nurse practitioner's recommendation about major 56 medical treatment or treatment without medical benefit, the matter shallA. 7277--A 18 1 be referred to the ethics review committee if it cannot be otherwise 2 resolved. 3 § 23. Section 2994-j of the public health law, as added by chapter 8 4 of the laws of 2010, is amended read as follows: 5 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or 6 guardian of a minor patient may at any time revoke his or her consent to 7 withhold or withdraw life-sustaining treatment by informing an attending 8 physician, attending nurse practitioner or a member of the medical or 9 nursing staff of the revocation. 10 2. An attending physician or attending nurse practitioner informed of 11 a revocation of consent made pursuant to this section shall immediately: 12 (a) record the revocation in the patient's medical record; 13 (b) cancel any orders implementing the decision to withhold or with- 14 draw treatment; and 15 (c) notify the hospital staff directly responsible for the patient's 16 care of the revocation and any cancellations. 17 3. Any member of the medical or nursing staff, other than a nurse 18 practitioner, informed of a revocation made pursuant to this section 19 shall immediately notify an attending physician or attending nurse prac- 20 titioner of the revocation. 21 § 24. The opening paragraph of subdivision 2 of section 2994-k of the 22 public health law, as added by chapter 8 of the laws of 2010, is amended 23 to read as follows: 24 If a decision to withhold or withdraw life-sustaining treatment has 25 been made pursuant to this article, and an attending physician or 26 attending nurse practitioner determines at any time that the decision is 27 no longer appropriate or authorized because the patient has regained 28 decision-making capacity or because the patient's condition has other- 29 wise improved, the physician or nurse practitioner shall immediately: 30 § 25. Section 2994-l of the public health law, as added by chapter 8 31 of the laws of 2010, is amended to read as follows: 32 § 2994-l. Interinstitutional transfers. If a patient with an order to 33 withhold or withdraw life-sustaining treatment is transferred from a 34 mental hygiene facility to a hospital or from a hospital to a different 35 hospital, any such order or plan shall remain effective until an attend- 36 ing physician or attending nurse practitioner first examines the trans- 37 ferred patient, whereupon an attending physician or attending nurse 38 practitioner must either: 39 1. Issue appropriate orders to continue the prior order or plan. Such 40 orders may be issued without obtaining another consent to withhold or 41 withdraw life-sustaining treatment pursuant to this article; or 42 2. Cancel such order, if the attending physician or attending nurse 43 practitioner determines that the order is no longer appropriate or 44 authorized. Before canceling the order the attending physician or 45 attending nurse practitioner shall make reasonable efforts to notify the 46 person who made the decision to withhold or withdraw treatment and the 47 hospital staff directly responsible for the patient's care of any such 48 cancellation. If such notice cannot reasonably be made prior to cancel- 49 ing the order or plan, the attending physician or attending nurse prac- 50 titioner shall make such notice as soon as reasonably practicable after 51 cancellation. 52 § 26. Subdivisions 3 and 4 of section 2994-m of the public health law, 53 as added by chapter 8 of the laws of 2010 and paragraph (c) of subdivi- 54 sion 4 as added by chapter 167 of the laws of 2011, are amended to read 55 as follows:A. 7277--A 19 1 3. Committee membership. The membership of ethics review committees 2 must be interdisciplinary and must include at least five members who 3 have demonstrated an interest in or commitment to patient's rights or to 4 the medical, public health, or social needs of those who are ill. At 5 least three ethics review committee members must be health or social 6 services practitioners, at least one of whom must be a registered nurse 7 and one of whom must be a physician or nurse practitioner. At least one 8 member must be a person without any governance, employment or contractu- 9 al relationship with the hospital. In a residential health care facility 10 the facility must offer the residents' council of the facility (or of 11 another facility that participates in the committee) the opportunity to 12 appoint up to two persons to the ethics review committee, none of whom 13 may be a resident of or a family member of a resident of such facility, 14 and both of whom shall be persons who have expertise in or a demon- 15 strated commitment to patient rights or to the care and treatment of the 16 elderly or nursing home residents through professional or community 17 activities, other than activities performed as a health care provider. 18 4. Procedures for ethics review committee. (a) These procedures are 19 required only when: (i) the ethics review committee is convened to 20 review a decision by a surrogate to withhold or withdraw life-sustaining 21 treatment for: (A) a patient in a residential health care facility 22 pursuant to paragraph (b) of subdivision five of section twenty-nine 23 hundred ninety-four-d of this article; (B) a patient in a general hospi- 24 tal pursuant to paragraph (c) of subdivision five of section twenty-nine 25 hundred ninety-four-d of this article; or (C) an emancipated minor 26 patient pursuant to subdivision three of section twenty-nine hundred 27 ninety-four-e of this article; or (ii) when a person connected with the 28 case requests the ethics review committee to provide assistance in 29 resolving a dispute about proposed care. Nothing in this section shall 30 bar health care providers from first striving to resolve disputes 31 through less formal means, including the informal solicitation of 32 ethical advice from any source. 33 (b)(i) A person connected with the case may not participate as an 34 ethics review committee member in the consideration of that case. 35 (ii) The ethics review committee shall respond promptly, as required 36 by the circumstances, to any request for assistance in resolving a 37 dispute or consideration of a decision to withhold or withdraw life-sus- 38 taining treatment pursuant to paragraphs (b) and (c) of subdivision five 39 of section twenty-nine hundred ninety-four-d of this article made by a 40 person connected with the case. The committee shall permit persons 41 connected with the case to present their views to the committee, and to 42 have the option of being accompanied by an advisor when participating in 43 a committee meeting. 44 (iii) The ethics review committee shall promptly provide the patient, 45 where there is any indication of the patient's ability to comprehend the 46 information, the surrogate, other persons on the surrogate list directly 47 involved in the decision or dispute regarding the patient's care, any 48 parent or guardian of a minor patient directly involved in the decision 49 or dispute regarding the minor patient's care, an attending physician, 50 an attending nurse practitioner, the hospital, and other persons the 51 committee deems appropriate, with the following: 52 (A) notice of any pending case consideration concerning the patient, 53 including, for patients, persons on the surrogate list, parents and 54 guardians, information about the ethics review committee's procedures, 55 composition and function; andA. 7277--A 20 1 (B) the committee's response to the case, including a written state- 2 ment of the reasons for approving or disapproving the withholding or 3 withdrawal of life-sustaining treatment for decisions considered pursu- 4 ant to subparagraph (ii) of paragraph (a) of subdivision five of section 5 twenty-nine hundred ninety-four-d of this article. The committee's 6 response to the case shall be included in the patient's medical record. 7 (iv) Following ethics review committee consideration of a case 8 concerning the withdrawal or withholding of life-sustaining treatment, 9 treatment shall not be withdrawn or withheld until the persons identi- 10 fied in subparagraph (iii) of this paragraph have been informed of the 11 committee's response to the case. 12 (c) When an ethics review committee is convened to review decisions 13 regarding hospice care for a patient in a general hospital or residen- 14 tial health care facility, the responsibilities of this section shall be 15 carried out by the ethics review committee of the general hospital or 16 residential health care facility, provided that such committee shall 17 invite a representative from hospice to participate. 18 § 27. Paragraph (b) of subdivision 4 of section 2994-r of the public 19 health law, as added by chapter 8 of the laws of 2010, is amended to 20 read as follows: 21 (b) The following persons may commence a special proceeding in a court 22 of competent jurisdiction to seek appointment as the health care guardi- 23 an of a minor patient solely for the purpose of deciding about life-sus- 24 taining treatment pursuant to this article: 25 (i) the hospital administrator; 26 (ii) an attending physician or attending nurse practitioner; 27 (iii) the local commissioner of social services or the local commis- 28 sioner of health, authorized to make medical treatment decisions for the 29 minor pursuant to section three hundred eighty-three-b of the social 30 services law; or 31 (iv) an individual, eighteen years of age or older, who has assumed 32 care of the minor for a substantial and continuous period of time. 33 § 28. Subdivision 1 of section 2994-s of the public health law, as 34 added by chapter 8 of the laws of 2010, is amended to read as follows: 35 1. Any hospital [or], attending physician or nurse practitioner that 36 refuses to honor a health care decision by a surrogate made pursuant to 37 this article and in accord with the standards set forth in this article 38 shall not be entitled to compensation for treatment, services, or proce- 39 dures refused by the surrogate, except that this subdivision shall not 40 apply: 41 (a) when a hospital [or], physician or nurse practitioner exercises 42 the rights granted by section twenty-nine hundred ninety-four-n of this 43 article, provided that the physician, nurse practitioner or hospital 44 promptly fulfills the obligations set forth in section twenty-nine 45 hundred ninety-four-n of this article; 46 (b) while a matter is under consideration by the ethics review commit- 47 tee, provided that the matter is promptly referred to and considered by 48 the committee; 49 (c) in the event of a dispute between individuals on the surrogate 50 list; or 51 (d) if the physician, nurse practitioner or hospital prevails in any 52 litigation concerning the surrogate's decision to refuse the treatment, 53 services or procedure. Nothing in this section shall determine or 54 affect how disputes among individuals on the surrogate list are 55 resolved.A. 7277--A 21 1 § 29. Subdivision 2 of section 2994-aa of the public health law, as 2 added by chapter 8 of the laws of 2010, is amended and two new subdivi- 3 sions 2-a and 13-a are added to read as follows: 4 2. "Attending physician" means the physician who has primary responsi- 5 bility for the treatment and care of the patient. Where more than one 6 physician or nurse practitioner shares such responsibility, any such 7 physician or nurse practitioner may act as the attending physician or 8 attending nurse practitioner pursuant to this article. 9 2-a. "Attending nurse practitioner" means the nurse practitioner who 10 has primary responsibility for the treatment and care of the patient. 11 Where more than one physician and/or nurse practitioner shares such 12 responsibility, any such physician or nurse practitioner may act as the 13 attending physician or attending nurse practitioner pursuant to this 14 article. 15 13-a. "Nurse practitioner" means a nurse practitioner certified pursu- 16 ant to section sixty-nine hundred ten of the education law who is prac- 17 ticing in accordance with subdivision three of section sixty-nine 18 hundred two of the education law. 19 § 30. Section 2994-cc of the public health law, as added by chapter 8 20 of the laws of 2010, subdivision 4 as amended by section 131 of subpart 21 B of part C of chapter 62 of the laws of 2011, is amended to read as 22 follows: 23 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An 24 adult with decision-making capacity, a health care agent, or a surrogate 25 may consent to a nonhospital order not to resuscitate orally to the 26 attending physician or attending nurse practitioner or in writing. If a 27 patient consents to a nonhospital order not to resuscitate while in a 28 correctional facility, notice of the patient's consent shall be given to 29 the facility director and reasonable efforts shall be made to notify an 30 individual designated by the patient to receive such notice prior to the 31 issuance of the nonhospital order not to resuscitate. Notification to 32 the facility director or the individual designated by the patient shall 33 not delay issuance of a nonhospital order not to resuscitate. 34 2. Consent by a health care agent shall be governed by article twen- 35 ty-nine-C of this chapter. 36 3. Consent by a surrogate shall be governed by article twenty-nine-CC 37 of this chapter, except that: (a) a second determination of capacity 38 shall be made by a health or social services practitioner; and (b) the 39 authority of the ethics review committee set forth in article 40 twenty-nine-CC of this chapter shall apply only to nonhospital orders 41 issued in a hospital. 42 4. (a) When the concurrence of a second physician or nurse practition- 43 er is sought to fulfill the requirements for the issuance of a nonhospi- 44 tal order not to resuscitate for patients in a correctional facility, 45 such second physician or nurse practitioner shall be selected by the 46 chief medical officer of the department of corrections and community 47 supervision or his or her designee. 48 (b) When the concurrence of a second physician or nurse practitioner 49 is sought to fulfill the requirements for the issuance of a nonhospital 50 order not to resuscitate for hospice and home care patients, such second 51 physician or nurse practitioner shall be selected by the hospice medical 52 director or hospice nurse coordinator designated by the medical director 53 or by the home care services agency director of patient care services, 54 as appropriate to the patient.A. 7277--A 22 1 5. Consent by a patient or a surrogate for a patient in a mental 2 hygiene facility shall be governed by article twenty-nine-B of this 3 chapter. 4 § 31. Section 2994-dd of the public health law, as added by chapter 8 5 of the laws of 2010, subdivision 6 as amended by section 10 of part J of 6 chapter 56 of the laws of 2012, is amended to read as follows: 7 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The 8 attending physician or attending nurse practitioner shall record the 9 issuance of a nonhospital order not to resuscitate in the patient's 10 medical record. 11 2. A nonhospital order not to resuscitate shall be issued upon a stan- 12 dard form prescribed by the commissioner. The commissioner shall also 13 develop a standard bracelet that may be worn by a patient with a nonhos- 14 pital order not to resuscitate to identify that status; provided, howev- 15 er, that no person may require a patient to wear such a bracelet and 16 that no person may require a patient to wear such a bracelet as a condi- 17 tion for honoring a nonhospital order not to resuscitate or for provid- 18 ing health care services. 19 3. An attending physician or attending nurse practitioner who has 20 issued a nonhospital order not to resuscitate, and who transfers care of 21 the patient to another physician or nurse practitioner, shall inform the 22 physician or nurse practitioner of the order. 23 4. For each patient for whom a nonhospital order not to resuscitate 24 has been issued, the attending physician or attending nurse practitioner 25 shall review whether the order is still appropriate in light of the 26 patient's condition each time he or she examines the patient, whether in 27 the hospital or elsewhere, but at least every ninety days, provided that 28 the review need not occur more than once every seven days. The attending 29 physician or attending nurse practitioner shall record the review in the 30 patient's medical record provided, however, that a registered nurse, 31 other than the attending nurse practitioner, who provides direct care to 32 the patient may record the review in the medical record at the direction 33 of the physician. In such case, the attending physician or attending 34 nurse practitioner shall include a confirmation of the review in the 35 patient's medical record within fourteen days of such review. Failure 36 to comply with this subdivision shall not render a nonhospital order not 37 to resuscitate ineffective. 38 5. A person who has consented to a nonhospital order not to resusci- 39 tate may at any time revoke his or her consent to the order by any act 40 evidencing a specific intent to revoke such consent. Any health care 41 professional, other than the attending physician or attending nurse 42 practitioner, informed of a revocation of consent to a nonhospital order 43 not to resuscitate shall notify the attending physician or attending 44 nurse practitioner of the revocation. An attending physician or attend- 45 ing nurse practitioner who is informed that a nonhospital order not to 46 resuscitate has been revoked shall record the revocation in the 47 patient's medical record, cancel the order and make diligent efforts to 48 retrieve the form issuing the order, and the standard bracelet, if any. 49 6. The commissioner may authorize the use of one or more alternative 50 forms for issuing a nonhospital order not to resuscitate (in place of 51 the standard form prescribed by the commissioner under subdivision two 52 of this section). Such alternative form or forms may also be used to 53 issue a non-hospital do not intubate order. Any such alternative forms 54 intended for use for persons with developmental disabilities or persons 55 with mental illness who are incapable of making their own health care 56 decisions or who have a guardian of the person appointed pursuant toA. 7277--A 23 1 article eighty-one of the mental hygiene law or article seventeen-A of 2 the surrogate's court procedure act must also be approved by the commis- 3 sioner of developmental disabilities or the commissioner of mental 4 health, as appropriate. An alternative form under this subdivision shall 5 otherwise conform with applicable federal and state law. This subdivi- 6 sion does not limit, restrict or impair the use of an alternative form 7 for issuing an order not to resuscitate in a general hospital or resi- 8 dential health care facility under article twenty-eight of this chapter 9 or a hospital under subdivision ten of section 1.03 of the mental 10 hygiene law. 11 § 32. Subdivision 2 of section 2994-ee of the public health law, as 12 added by chapter 8 of the laws of 2010, is amended to read as follows: 13 2. Hospital emergency services physicians and hospital emergency 14 services nurse practitioners may direct that the order be disregarded if 15 other significant and exceptional medical circumstances warrant disre- 16 garding the order. 17 § 33. This act shall take effect on the one hundred eightieth day 18 after it shall have become a law; provided that, effective immediately, 19 any rules and regulations necessary to implement the provisions of this 20 act on its effective date are authorized and directed to be amended, 21 repealed and/or promulgated on or before such date.
