Bill Text: NY A10345 | 2017-2018 | General Assembly | Amended
Bill Title: Authorizes a patient's attending nurse practitioner to witness the patient's execution of a health care proxy; authorizes a nurse practitioner to act as a person's health care agent; authorizes an attending nurse practitioner to determine that a patient lacks capacity.
Spectrum: Moderate Partisan Bill (Democrat 9-1)
Status: (Introduced - Dead) 2018-06-13 - substituted by s7713b [A10345 Detail]
Download: New_York-2017-A10345-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 10345--A Cal. No. 823 IN ASSEMBLY April 13, 2018 ___________ Introduced by M. of A. GOTTFRIED, D'URSO, SKOUFIS, STECK, STIRPE, McDO- NALD, McDONOUGH -- Multi-Sponsored by -- M. of A. THIELE -- read once and referred to the Committee on Health -- advanced to a third read- ing, 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 witness a health care proxy, act as a health care agent and determine competency of the principal of such a proxy The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2980 of the public health law is amended by adding 2 three new subdivisions 2-a, 2-b and 2-c to read as follows: 3 2-a. "Nurse practitioner" means a nurse practitioner certified under 4 section sixty-nine hundred ten of the education law, practicing within 5 his or her scope of practice. 6 2-b. "Psychiatric nurse practitioner" means a nurse practitioner 7 certified by the department of education as a psychiatric nurse practi- 8 tioner. 9 2-c. "Attending nurse practitioner" means the nurse practitioner, 10 selected by or assigned to a patient, who has primary responsibility for 11 the treatment and care of the patient. Where more than one nurse practi- 12 tioner shares such responsibility, or where a nurse practitioner is 13 acting on the attending nurse practitioner's behalf, any such nurse 14 practitioner may act as the attending nurse practitioner pursuant to 15 this article. 16 § 2. Subdivisions 2, 3 and 6 of section 2981 of the public health law, 17 as added by chapter 752 of the laws of 1990, paragraph (b) of subdivi- 18 sion 2 as amended by chapter 23 of the laws of 1994 and paragraph (c) of 19 subdivision 2 as amended by section 6 of part J of chapter 56 of the 20 laws of 2012, are amended to read as follows: 21 2. Health care proxy; execution; witnesses. (a) A competent adult may 22 appoint a health care agent by a health care proxy, signed and dated by 23 the adult in the presence of two adult witnesses who shall also sign the 24 proxy. Another person may sign and date the health care proxy for the 25 adult if the adult is unable to do so, at the adult's direction and in 26 the adult's presence, and in the presence of two adult witnesses who 27 shall sign the proxy. The witnesses shall state that the principal EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14616-04-8A. 10345--A 2 1 appeared to execute the proxy willingly and free from duress. The person 2 appointed as agent shall not act as witness to execution of the health 3 care proxy. 4 (b) For persons who reside in a mental hygiene facility operated or 5 licensed by the office of mental health, at least one witness shall be 6 an individual who is not affiliated with the facility and, if the mental 7 hygiene facility is also a hospital as defined in subdivision ten of 8 section 1.03 of the mental hygiene law, at least one witness shall be a 9 qualified psychiatrist or psychiatric nurse practitioner. 10 (c) For persons who reside in a mental hygiene facility operated or 11 licensed by the office for people with developmental disabilities, at 12 least one witness shall be an individual who is not affiliated with the 13 facility and at least one witness shall be a physician, nurse practi- 14 tioner or clinical psychologist who either is employed by a develop- 15 mental disabilities services office named in section 13.17 of the mental 16 hygiene law or who has been employed for a minimum of two years to 17 render care and service in a facility operated or licensed by the office 18 for people with developmental disabilities, or has been approved by the 19 commissioner of developmental disabilities in accordance with regu- 20 lations approved by the commissioner. Such regulations shall require 21 that a physician, nurse practitioner or clinical psychologist possess 22 specialized training or three years experience in treating developmental 23 disabilities. 24 3. Restrictions on who may be and limitations on a health care agent. 25 (a) An operator, administrator or employee of a hospital may not be 26 appointed as a health care agent by any person who, at the time of the 27 appointment, is a patient or resident of, or has applied for admission 28 to, such hospital. 29 (b) The restriction in paragraph (a) of this subdivision shall not 30 apply to: 31 (i) an operator, administrator or employee of a hospital who is 32 related to the principal by blood, marriage or adoption; or 33 (ii) a physician or nurse practitioner, subject to the limitation set 34 forth in paragraph (c) of this subdivision, except that no physician or 35 nurse practitioner affiliated with a mental hygiene facility or a 36 psychiatric unit of a general hospital may serve as agent for a princi- 37 pal residing in or being treated by such facility or unit unless the 38 physician is related to the principal by blood, marriage or adoption. 39 (c) If a physician or nurse practitioner is appointed agent, the 40 physician or nurse practitioner shall not act as the patient's attending 41 physician or attending nurse practitioner after the authority under the 42 health care proxy commences, unless the physician or nurse practitioner 43 declines the appointment as agent at or before such time. 44 (d) No person who is not the spouse, child, parent, brother, sister or 45 grandparent of the principal, or is the issue of, or married to, such 46 person, shall be appointed as a health care agent if, at the time of 47 appointment, he or she is presently appointed health care agent for ten 48 principals. 49 6. Alternate agent. (a) A competent adult may designate an alternate 50 agent in the health care proxy to serve in place of the agent when: 51 (i) the attending physician or attending nurse practitioner has deter- 52 mined in a writing signed by the physician or nurse practitioner (A) 53 that the person appointed as agent is not reasonably available, willing 54 and competent to serve as agent, and (B) that such person is not 55 expected to become reasonably available, willing and competent to make a 56 timely decision given the patient's medical circumstances;A. 10345--A 3 1 (ii) the agent is disqualified from acting on the principal's behalf 2 pursuant to subdivision three of this section or subdivision two of 3 section two thousand nine hundred ninety-two of this article, or 4 (iii) under conditions set forth in the proxy. 5 (b) If, after an alternate agent's authority commences, the person 6 appointed as agent becomes available, willing and competent to serve as 7 agent: 8 (i) the authority of the alternate agent shall cease and the authority 9 of the agent shall commence; and 10 (ii) the attending physician or attending nurse practitioner shall 11 record the change in agent and the reasons therefor in the principal's 12 medical record. 13 § 3. Section 2983 of the public health law, as added by chapter 752 of 14 the laws of 1990, paragraph (b) of subdivision 1 as amended by chapter 15 23 of the laws of 1994 and paragraph (c) of subdivision 1 as amended by 16 section 7 of part J of chapter 56 of the laws of 2012, is amended to 17 read as follows: 18 § 2983. Determination of lack of capacity to make health care deci- 19 sions for the purpose of empowering agent. 1. Determination by attend- 20 ing physician or attending nurse practitioner. (a) A determination that 21 a principal lacks capacity to make health care decisions shall be made 22 by the attending physician or attending nurse practitioner to a reason- 23 able degree of medical certainty. The determination shall be made in 24 writing and shall contain such attending physician's or attending nurse 25 practitioner's opinion regarding the cause and nature of the principal's 26 incapacity as well as its extent and probable duration. The determi- 27 nation shall be included in the patient's medical record. For a decision 28 to withdraw or withhold life-sustaining treatment, the attending physi- 29 cian or attending nurse practitioner who makes the determination that a 30 principal lacks capacity to make health care decisions must consult with 31 another physician or nurse practitioner to confirm such determination. 32 Such consultation shall also be included within the patient's medical 33 record. 34 (b) If an attending physician or attending nurse practitioner of a 35 patient in a general hospital or mental hygiene facility determines that 36 a patient lacks capacity because of mental illness, the attending physi- 37 cian or attending nurse practitioner who makes the determination must 38 be, or must consult, for the purpose of confirming the determination, 39 with a qualified psychiatrist. A record of such consultation shall be 40 included in the patient's medical record. 41 (c) If the attending physician or attending nurse practitioner deter- 42 mines that a patient lacks capacity because of a developmental disabili- 43 ty, the attending physician or attending nurse practitioner who makes 44 the determination must be, or must consult, for the purpose of confirm- 45 ing the determination, with a physician, nurse practitioner or clinical 46 psychologist who either is employed by a developmental disabilities 47 services office named in section 13.17 of the mental hygiene law, or who 48 has been employed for a minimum of two years to render care and service 49 in a facility operated or licensed by the office for people with devel- 50 opmental disabilities, or has been approved by the commissioner of 51 developmental disabilities in accordance with regulations promulgated by 52 such commissioner. Such regulations shall require that a physician, 53 nurse practitioner or clinical psychologist possess specialized training 54 or three years experience in treating developmental disabilities. A 55 record of such consultation shall be included in the patient's medical 56 record.A. 10345--A 4 1 (d) A physician or nurse practitioner who has been appointed as a 2 patient's agent shall not make the determination of the patient's capac- 3 ity to make health care decisions. 4 2. Request for a determination. If requested by the agent, an attend- 5 ing physician or attending nurse practitioner shall make a determination 6 regarding the principal's capacity to make health care decisions for the 7 purposes of this article. 8 3. Notice of determination. Notice of a determination that a principal 9 lacks capacity to make health care decisions shall promptly be given: 10 (a) to the principal, orally and in writing, where there is any indi- 11 cation of the principal's ability to comprehend such notice; (b) to the 12 agent; (c) if the principal is in or is transferred from a mental 13 hygiene facility, to the facility director; and (d) to the conservator 14 for, or committee of, the principal. 15 4. Limited purpose of determination. A determination made pursuant to 16 this section that a principal lacks capacity to make health care deci- 17 sions shall not be construed as a finding that the patient lacks capaci- 18 ty for any other purpose. 19 5. Priority of principal's decision. Notwithstanding a determination 20 pursuant to this section that the principal lacks capacity to make 21 health care decisions, where a principal objects to the determination of 22 incapacity or to a health care decision made by an agent, the princi- 23 pal's objection or decision shall prevail unless the principal is deter- 24 mined by a court of competent jurisdiction to lack capacity to make 25 health care decisions. 26 6. Confirmation of lack of capacity. (a) The attending physician or 27 attending nurse practitioner shall confirm the principal's continued 28 incapacity before complying with an agent's health care decisions, other 29 than those decisions made at or about the time of the initial determi- 30 nation made pursuant to subdivision one of this section. The confirma- 31 tion shall be stated in writing and shall be included in the principal's 32 medical record. 33 (b) The notice requirements set forth in subdivision three of this 34 section shall not apply to the confirmation required by this subdivi- 35 sion. 36 7. Effect of recovery of capacity. In the event the attending physi- 37 cian or attending nurse practitioner determines that the principal has 38 regained capacity, the authority of the agent shall cease, but shall 39 recommence if the principal subsequently loses capacity as determined 40 pursuant to this section. 41 § 4. Subdivision 2 of section 2985 of the public health law, as added 42 by chapter 752 of the laws of 1990, is amended to read as follows: 43 2. Duty to record revocation. (a) A physician or nurse practitioner 44 who is informed of or provided with a revocation of a health care proxy 45 shall immediately (i) record the revocation in the principal's medical 46 record and (ii) notify the agent and the medical staff responsible for 47 the principal's care of the revocation. 48 (b) Any member of the staff of a health care provider informed of or 49 provided with a revocation of a health care proxy pursuant to this 50 section shall immediately notify a physician or nurse practitioner of 51 such revocation. 52 § 5. This act shall take effect on the ninetieth day after it shall 53 have become a law. Effective immediately, any rules and regulations 54 necessary to implement the provisions of this act on its effective date 55 are authorized and directed to be amended, repealed and/or promulgated 56 on or before such date.
