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S04841 Summary:

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S04841 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4841
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                     March 27, 2019
                                       ___________
 
        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        AN ACT to amend the public health  law,  in  relation  to  execution  of
          orders  not  to  resuscitate  and orders pertaining to life sustaining
          treatments; and to repeal certain  provisions  of  such  law  relating
          thereto

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 2960 of the public health law, as amended by  chap-
     2  ter 430 of the laws of 2017, 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 circum-
     7  stances, to issue an order not to attempt cardiopulmonary  resuscitation
     8  of  a patient where appropriate consent has been obtained.  The legisla-
     9  ture further finds that there is a need to  clarify  and  establish  the
    10  rights  and  obligations  of  patients,  their families, and health care
    11  providers regarding cardiopulmonary resuscitation and  the  issuance  of
    12  orders not to resuscitate.
    13    §  2.  Subdivisions  2,  5 and 20 of section 2961 of the public health
    14  law, as amended by chapter 430 of the laws of 2017, are amended to  read
    15  as follows:
    16    2.  "Attending  [physician]  practitioner"  means the physician, nurse
    17  practitioner, or physician assistant, licensed or certified pursuant  to
    18  title  eight  of the education law, selected by or assigned to a patient
    19  in a hospital who has primary responsibility for the treatment and  care
    20  of  the  patient.  Where more than one physician [and/or], nurse practi-
    21  tioner, or physician assistant  shares  such  responsibility,  any  such
    22  physician  [or],  nurse  practitioner, or physician assistant may act as
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03858-04-9
        S. 4841                             2
 
     1  the attending [physician or attending nurse]  practitioner  pursuant  to
     2  this article.
     3    5.  "Close  friend"  means any person, eighteen years of age or older,
     4  who is a close friend of the patient, or relative of the patient  (other
     5  than  a  spouse,  adult  child, parent, brother or sister) who has main-
     6  tained such regular contact with the patient as to be familiar with  the
     7  patient's  activities,  health,  and  religious or moral beliefs and who
     8  presents a signed statement to that effect to the  attending  [physician
     9  or attending nurse] practitioner.
    10    20.  "Reasonably available" means that a person to be contacted can be
    11  contacted with diligent efforts by an  attending  [physician,  attending
    12  nurse]  practitioner or another person acting on behalf of the attending
    13  [physician, attending nurse] practitioner or the hospital.
    14    § 3. Subdivision 2-a of section 2961  of  the  public  health  law  is
    15  REPEALED.
    16    § 4. Subdivisions 2 and 3 of section 2962 of the public health law, as
    17  amended  by  chapter  430  of  the  laws of 2017, are amended to read as
    18  follows:
    19    2. It shall be lawful for the attending [physician or attending nurse]
    20  practitioner to issue an order not to resuscitate  a  patient,  provided
    21  that  the  order  has  been  issued pursuant to the requirements of this
    22  article. The order shall be included in writing in the patient's  chart.
    23  An order not to resuscitate shall be effective upon issuance.
    24    3.  Before  obtaining,  pursuant  to  this article, the consent of the
    25  patient, or of the surrogate of the patient, or parent or legal guardian
    26  of the minor patient, to an order  not  to  resuscitate,  the  attending
    27  [physician  or attending nurse] practitioner shall provide to the person
    28  giving consent information about the patient's diagnosis and  prognosis,
    29  the  reasonably foreseeable risks and benefits of cardiopulmonary resus-
    30  citation for the patient, and the consequences of an order not to resus-
    31  citate.
    32    § 5. Section 2963 of the public health law, as amended by chapter  430
    33  of the laws of 2017, is amended to read as follows:
    34    §  2963.  Determination  of  capacity  to  make  a  decision regarding
    35  cardiopulmonary resuscitation. 1. Every adult shall be presumed to  have
    36  the  capacity to make a decision regarding cardiopulmonary resuscitation
    37  unless determined otherwise pursuant to this section or  pursuant  to  a
    38  court  order  or  unless a guardian is authorized to decide about health
    39  care for the adult pursuant to article eighty-one of the mental  hygiene
    40  law  or  article seventeen-A of the surrogate's court procedure act. The
    41  attending [physician or attending nurse] practitioner shall not rely  on
    42  the  presumption stated in this subdivision if clinical indicia of inca-
    43  pacity are present.
    44    2. A determination that an adult patient lacks capacity shall be  made
    45  by  the  attending  [physician  or  attending  nurse]  practitioner to a
    46  reasonable degree of medical certainty. The determination shall be  made
    47  in  writing  and  shall contain such attending [physician's or attending
    48  nurse] practitioner's opinion regarding the  cause  and  nature  of  the
    49  patient's  incapacity  as  well as its extent and probable duration. The
    50  determination shall be included in the patient's medical chart.
    51    3. (a) At least one other physician, selected by a  person  authorized
    52  by the hospital to make such selection, must concur in the determination
    53  that an adult lacks capacity. The concurring determination shall be made
    54  in  writing  after personal examination of the patient and shall contain
    55  the physician's opinion regarding the cause and nature of the  patient's
        S. 4841                             3
 
     1  incapacity  as well as its extent and probable duration. Each concurring
     2  determination shall be included in the patient's medical chart.
     3    (b)  If  the  attending  [physician  or  attending nurse] practitioner
     4  determines that a patient lacks capacity because of mental illness,  the
     5  concurring  determination  required by paragraph (a) of this subdivision
     6  shall be provided by a physician licensed to practice  medicine  in  New
     7  York state, who is a diplomate or eligible to be certified by the Ameri-
     8  can  Board of Psychiatry and Neurology or who is certified by the Ameri-
     9  can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
    10  certified by that board.
    11    (c)  If  the  attending  [physician  or  attending nurse] practitioner
    12  determines that a patient lacks  capacity  because  of  a  developmental
    13  disability,  the  concurring  determination required by paragraph (a) of
    14  this subdivision shall  be  provided  by  a  physician  or  psychologist
    15  employed  by  a  developmental  disabilities  services  office  named in
    16  section 13.17 of the mental hygiene law, or who has been employed for  a
    17  minimum  of  two years to render care and service in a facility operated
    18  or licensed by the office for people with developmental disabilities, or
    19  who has been approved by the commissioner of developmental  disabilities
    20  in  accordance  with  regulations promulgated by such commissioner. Such
    21  regulations shall require  that  a  physician  or  psychologist  possess
    22  specialized training or three years experience in treating developmental
    23  disabilities.
    24    4.  Notice  of  a  determination that the patient lacks capacity shall
    25  promptly be given (a) to the patient, where there is any  indication  of
    26  the patient's ability to comprehend such notice, together with a copy of
    27  a  statement  prepared  in  accordance  with section twenty-nine hundred
    28  seventy-eight of this article, and (b) to the person  on  the  surrogate
    29  list highest in order of priority listed, when persons in prior subpara-
    30  graphs  are  not reasonably available. Nothing in this subdivision shall
    31  preclude or require notice to more than  one  person  on  the  surrogate
    32  list.
    33    5.  A  determination  that a patient lacks capacity to make a decision
    34  regarding an order not to resuscitate pursuant to this section shall not
    35  be construed as a finding that the patient lacks capacity for any  other
    36  purpose.
    37    §  6.  Subdivision  2  of  section  2964  of the public health law, as
    38  amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
    39  follows:
    40    2.  (a)  During  hospitalization, an adult with capacity may express a
    41  decision consenting to an order not to resuscitate orally in  the  pres-
    42  ence  of  at  least two witnesses eighteen years of age or older, one of
    43  whom is a physician [or], nurse  practitioner,  or  physician  assistant
    44  affiliated  with the hospital in which the patient is being treated. Any
    45  such decision shall be recorded in the patient's medical chart.
    46    (b) Prior to or during hospitalization, an  adult  with  capacity  may
    47  express a decision consenting to an order not to resuscitate in writing,
    48  dated  and  signed  in  the  presence of at least two witnesses eighteen
    49  years of age or older who shall sign the decision.
    50    (c) An attending [physician or attending nurse]  practitioner  who  is
    51  provided  with  or  informed  of a decision pursuant to this subdivision
    52  shall record or include the decision in the patient's medical  chart  if
    53  the decision has not been recorded or included, and either:
    54    (i) promptly issue an order not to resuscitate the patient or issue an
    55  order  at such time as the conditions, if any, specified in the decision
        S. 4841                             4
 
     1  are met, and inform the hospital staff  responsible  for  the  patient's
     2  care of the order; or
     3    (ii)  promptly  make  his  or her objection to the issuance of such an
     4  order and the reasons therefor known to the patient and either make  all
     5  reasonable efforts to arrange for the transfer of the patient to another
     6  physician [or], nurse practitioner or physician assistant, if necessary,
     7  or promptly submit the matter to the dispute mediation system.
     8    (d)  Prior  to  issuing  an order not to resuscitate a patient who has
     9  expressed a decision consenting to an order  not  to  resuscitate  under
    10  specified  medical  conditions,  the  attending  [physician or attending
    11  nurse] practitioner must make a determination, to a reasonable degree of
    12  medical certainty, that such conditions exist, and include the  determi-
    13  nation in the patient's medical chart.
    14    § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as
    15  amended  by  chapter  430  of  the  laws of 2017, are amended to read as
    16  follows:
    17    3. (a) The surrogate shall make a decision  regarding  cardiopulmonary
    18  resuscitation  on  the  basis  of the adult patient's wishes including a
    19  consideration of the patient's religious and moral beliefs, or,  if  the
    20  patient's  wishes are unknown and cannot be ascertained, on the basis of
    21  the patient's best interests.
    22    (b) Notwithstanding any law to the contrary, the surrogate shall  have
    23  the same right as the patient to receive medical information and medical
    24  records.
    25    (c)  A  surrogate may consent to an order not to resuscitate on behalf
    26  of an adult patient only if there has been a determination by an attend-
    27  ing [physician or attending nurse] practitioner with the concurrence  of
    28  another  physician  [or],  nurse  practitioner  or  physician  assistant
    29  selected by a person authorized by the hospital to make such  selection,
    30  given  after  personal  examination of the patient that, to a reasonable
    31  degree of medical certainty:
    32    (i) the patient has a terminal condition; or
    33    (ii) the patient is permanently unconscious; or
    34    (iii) resuscitation would be medically futile; or
    35    (iv) resuscitation would impose an extraordinary burden on the patient
    36  in light of the patient's medical condition and the expected outcome  of
    37  resuscitation for the patient.
    38    Each determination shall be included in the patient's medical chart.
    39    4. (a) A surrogate shall express a decision consenting to an order not
    40  to  resuscitate either (i) in writing, dated, and signed in the presence
    41  of one witness eighteen years of age or older who shall sign  the  deci-
    42  sion, or (ii) orally, to two persons eighteen years of age or older, one
    43  of  whom  is a physician [or], nurse practitioner or physician assistant
    44  affiliated with the hospital in which the patient is being treated.  Any
    45  such decision shall be recorded in the patient's medical chart.
    46    (b)  The  attending [physician or attending nurse] practitioner who is
    47  provided with the decision of a surrogate shall include the decision  in
    48  the  patient's  medical chart and, if the surrogate has consented to the
    49  issuance of an order not to resuscitate, shall either:
    50    (i) promptly issue an order not to resuscitate the patient and  inform
    51  the hospital staff responsible for the patient's care of the order; or
    52    (ii)  promptly  make  the  attending  [physician's or attending nurse]
    53  practitioner's objection to the issuance of such an order known  to  the
    54  surrogate  and  either  make  all  reasonable efforts to arrange for the
    55  transfer of the patient to another physician [or], nurse practitioner or
        S. 4841                             5
 
     1  physician assistant, if necessary, or promptly refer the matter  to  the
     2  dispute mediation system.
     3    (c)  If  the attending [physician or attending nurse] practitioner has
     4  actual notice of opposition to a surrogate's consent to an order not  to
     5  resuscitate  by  any  person  on the surrogate list, the physician [or],
     6  nurse practitioner or physician assistant shall submit the matter to the
     7  dispute mediation system and such order shall not be issued or shall  be
     8  revoked  in  accordance  with  the  provisions  of  subdivision three of
     9  section twenty-nine hundred seventy-two of this article.
    10    § 8. Section 2966 of the public health law, as amended by chapter  430
    11  of the laws of 2017, is amended to read as follows:
    12    § 2966. Decision-making on behalf of an adult patient without capacity
    13  for  whom  no  surrogate  is available. 1. If no surrogate is reasonably
    14  available, willing to make a decision regarding issuance of an order not
    15  to resuscitate, and competent to make a decision regarding  issuance  of
    16  an  order  not  to  resuscitate  on behalf of an adult patient who lacks
    17  capacity and who had  not  previously  expressed  a  decision  regarding
    18  cardiopulmonary  resuscitation,  an  attending  [physician  or attending
    19  nurse] practitioner (a) may  issue  an  order  not  to  resuscitate  the
    20  patient,  provided  that  the  attending  [physician or attending nurse]
    21  practitioner determines, in writing, that, to  a  reasonable  degree  of
    22  medical  certainty, resuscitation would be medically futile, and another
    23  physician [or], nurse practitioner or physician assistant selected by  a
    24  person authorized by the hospital to make such selection, after personal
    25  examination  of  the  patient,  reviews and concurs in writing with such
    26  determination, or, (b) shall issue  an  order  not  to  resuscitate  the
    27  patient,  provided  that, pursuant to subdivision one of section twenty-
    28  nine hundred seventy-six of this article, a court has granted a judgment
    29  directing the issuance of such an order.
    30    2. Notwithstanding any other provision of this section, where a  deci-
    31  sion  to consent to an order not to resuscitate has been made, notice of
    32  the decision shall be given to the patient where there is any indication
    33  of the patient's ability to  comprehend  such  notice.  If  the  patient
    34  objects, an order not to resuscitate shall not be issued.
    35    §  9. Section 2967 of the public health law, as amended by chapter 430
    36  of the laws of 2017, is amended to read as follows:
    37    § 2967. Decision-making on behalf of a minor patient. 1. An  attending
    38  [physician  or  attending  nurse]  practitioner,  in consultation with a
    39  minor's parent or legal guardian, shall determine whether  a  minor  has
    40  the capacity to make a decision regarding resuscitation.
    41    2.  (a)  The  consent  of  a  minor's parent or legal guardian and the
    42  consent of the minor, if the minor has capacity, must be obtained  prior
    43  to issuing an order not to resuscitate the minor.
    44    (b)  Where  the  attending [physician or attending nurse] practitioner
    45  has reason to believe that there is another parent  or  a  non-custodial
    46  parent  who has not been informed of a decision to issue an order not to
    47  resuscitate the minor, the  attending  [physician  or  attending  nurse]
    48  practitioner, or someone acting on behalf of the [attending physician or
    49  attending  nurse]  practitioner, shall make reasonable efforts to deter-
    50  mine if the uninformed parent or  non-custodial  parent  has  maintained
    51  substantial and continuous contact with the minor and, if so, shall make
    52  diligent  efforts  to  notify that parent or non-custodial parent of the
    53  decision prior to issuing the order.
    54    3. A parent or legal guardian may consent to an order not to  resusci-
    55  tate on behalf of a minor only if there has been a written determination
    56  by  the  attending [physician or attending nurse] practitioner, with the
        S. 4841                             6
 
     1  written concurrence of another physician  [or],  nurse  practitioner  or
     2  physician  assistant  selected by a person authorized by the hospital to
     3  make such selections given after personal examination  of  the  patient,
     4  that,  to  a  reasonable  degree of medical certainty, the minor suffers
     5  from one of the medical conditions set forth in paragraph (c) of  subdi-
     6  vision  three of section twenty-nine hundred sixty-five of this article.
     7  Each determination shall be included in the patient's medical chart.
     8    4. (a) A parent or legal guardian of a minor,  in  making  a  decision
     9  regarding   cardiopulmonary  resuscitation,  shall  consider  the  minor
    10  patient's wishes, including a consideration of the minor patient's reli-
    11  gious and moral beliefs, and shall  express  a  decision  consenting  to
    12  issuance of an order not to resuscitate either (i) in writing, dated and
    13  signed in the presence of one witness eighteen years of age or older who
    14  shall  sign  the decision, or (ii) orally, to two persons eighteen years
    15  of age or older, one of whom is a physician [or], nurse practitioner  or
    16  physician assistant affiliated with the hospital in which the patient is
    17  being  treated.  Any  such  decision  shall be recorded in the patient's
    18  medical chart.
    19    (b) The attending [physician or attending nurse] practitioner  who  is
    20  provided  with  the  decision  of  a  minor's  parent or legal guardian,
    21  expressed pursuant to this subdivision, and of the minor  if  the  minor
    22  has  capacity,  shall  include such decision or decisions in the minor's
    23  medical chart and shall comply with the provisions of paragraph  (b)  of
    24  subdivision four of section twenty-nine hundred sixty-five of this arti-
    25  cle.
    26    (c)  If  the attending [physician or attending nurse] practitioner has
    27  actual notice of the opposition of a parent or non-custodial  parent  to
    28  consent  by  another  parent to an order not to resuscitate a minor, the
    29  physician [or], nurse practitioner or physician assistant  shall  submit
    30  the  matter  to the dispute mediation system and such order shall not be
    31  issued or shall be revoked in accordance with the provisions of subdivi-
    32  sion three of section twenty-nine hundred seventy-two of this article.
    33    § 10. Section 2969 of the public health law, as amended by chapter 430
    34  of the laws of 2017, is amended to read as follows:
    35    § 2969. Revocation of consent to order not to resuscitate. 1. A person
    36  may, at any time, revoke his or her consent to an order not to  resusci-
    37  tate  himself  or herself by making either a written or an oral declara-
    38  tion to a physician or member of the nursing staff at the hospital where
    39  he or she is being treated, or by any other act  evidencing  a  specific
    40  intent to revoke such consent.
    41    2. Any surrogate, parent, or legal guardian may at any time revoke his
    42  or her consent to an order not to resuscitate a patient by (a) notifying
    43  a  physician or member of the nursing staff of the revocation of consent
    44  in writing, dated and signed, or  (b)  orally  notifying  the  attending
    45  [physician or attending nurse] practitioner in the presence of a witness
    46  eighteen years of age or older.
    47    3.  Any  physician [or], nurse practitioner or physician assistant who
    48  is informed of or provided with a revocation of consent pursuant to this
    49  section shall immediately include the revocation in the patient's chart,
    50  cancel the order, and notify the  hospital  staff  responsible  for  the
    51  patient's  care  of  the  revocation and cancellation. Any member of the
    52  nursing staff, other than a nurse practitioner or  physician  assistant,
    53  who  is informed of or provided with a revocation of consent pursuant to
    54  this section shall immediately notify a physician  [or],  nurse  practi-
    55  tioner or physician assistant of such revocation.
        S. 4841                             7
 
     1    § 11. Section 2970 of the public health law, as amended by chapter 430
     2  of the laws of 2017, is amended to read as follows:
     3    §  2970.  Physician  [and], nurse practitioner and physician assistant
     4  review of the order not to resuscitate. 1. For each patient for whom  an
     5  order  not  to  resuscitate has been issued, the attending [physician or
     6  attending nurse] practitioner shall review the patient's chart to deter-
     7  mine if the order is still appropriate in light of the patient's  condi-
     8  tion  and  shall indicate on the patient's chart that the order has been
     9  reviewed each time the patient is required to be seen by a physician but
    10  at least every sixty days.
    11    Failure to comply with this subdivision shall not render an order  not
    12  to resuscitate ineffective.
    13    2.  (a)  If  the attending [physician or attending nurse] practitioner
    14  determines at any time that an order not to  resuscitate  is  no  longer
    15  appropriate  because  the  patient's medical condition has improved, the
    16  physician [or], nurse practitioner or physician  assistant  shall  imme-
    17  diately notify the person who consented to the order. Except as provided
    18  in  paragraph (b) of this subdivision, if such person declines to revoke
    19  consent to the order, the physician [or], nurse practitioner  or  physi-
    20  cian assistant shall promptly (i) make reasonable efforts to arrange for
    21  the  transfer  of  the  patient  to another physician or (ii) submit the
    22  matter to the dispute mediation system.
    23    (b) If the order not to resuscitate was entered upon the consent of  a
    24  surrogate,  parent,  or  legal  guardian and the attending [physician or
    25  attending nurse] practitioner who issued the order, or, if  unavailable,
    26  another  attending  [physician  or  attending nurse] practitioner at any
    27  time determines that the patient does not suffer from one of the medical
    28  conditions set forth in paragraph (c) of subdivision  three  of  section
    29  twenty-nine hundred sixty-five of this article, the attending [physician
    30  or attending nurse] practitioner shall immediately include such determi-
    31  nation  in  the patient's chart, cancel the order, and notify the person
    32  who consented to the order and all hospital staff  responsible  for  the
    33  patient's care of the cancellation.
    34    (c)  If  an order not to resuscitate was entered upon the consent of a
    35  surrogate and the patient at any time gains  or  regains  capacity,  the
    36  attending  [physician  or  attending  nurse] practitioner who issued the
    37  order, or, if unavailable, another  attending  [physician  or  attending
    38  nurse]  practitioner  shall  immediately cancel the order and notify the
    39  person who consented to  the  order  and  all  hospital  staff  directly
    40  responsible for the patient's care of the cancellation.
    41    §  12.  The opening paragraph and subdivision 2 of section 2971 of the
    42  public health law, as amended by chapter 430 of the laws  of  2017,  are
    43  amended to read as follows:
    44    If  a  patient for whom an order not to resuscitate has been issued is
    45  transferred from a hospital to a  different  hospital  the  order  shall
    46  remain  effective,  unless  revoked  pursuant to this article, until the
    47  attending [physician or attending nurse] practitioner first examines the
    48  transferred patient, whereupon the  attending  [physician  or  attending
    49  nurse] practitioner must either:
    50    2. Cancel the order not to resuscitate, provided the attending [physi-
    51  cian  or  attending  nurse] practitioner immediately notifies the person
    52  who consented to the order and the hospital staff  directly  responsible
    53  for  the  patient's care of the cancellation. Such cancellation does not
    54  preclude the entry of a new order pursuant to this article.
        S. 4841                             8
 
     1    § 13. Subdivisions 1, 2 and 4 of section 2972  of  the  public  health
     2  law,  as amended by chapter 430 of the laws of 2017, are amended to read
     3  as follows:
     4    1.  (a)  Each  hospital  shall  establish  a  mediation system for the
     5  purpose of mediating disputes regarding the issuance of  orders  not  to
     6  resuscitate.
     7    (b)  The  dispute  mediation  system shall be described in writing and
     8  adopted by the hospital's governing authority. It may  utilize  existing
     9  hospital  resources,  such  as  a  patient advocate's office or hospital
    10  chaplain's office, or it may utilize a  body  created  specifically  for
    11  this  purpose,  but, in the event a dispute involves a patient deemed to
    12  lack capacity pursuant to (i) paragraph  (b)  of  subdivision  three  of
    13  section twenty-nine hundred sixty-three of this article, the system must
    14  include  a  physician  [or],  nurse  practitioner or physician assistant
    15  eligible to provide a concurring determination pursuant to such subdivi-
    16  sion, or a family member or guardian of the person of a  person  with  a
    17  mental  illness  of the same or similar nature, or (ii) paragraph (c) of
    18  subdivision three of section twenty-nine  hundred  sixty-three  of  this
    19  article, the system must include a physician [or], nurse practitioner or
    20  physician  assistant  eligible  to  provide  a  concurring determination
    21  pursuant to such subdivision, or a family  member  or  guardian  of  the
    22  person  of a person with a developmental disability of the same or simi-
    23  lar nature.
    24    2. The dispute mediation system shall be  authorized  to  mediate  any
    25  dispute, including disputes regarding the determination of the patient's
    26  capacity,  arising under this article between the patient and an attend-
    27  ing [physician, attending nurse] practitioner or the  hospital  that  is
    28  caring  for  the  patient  and, if the patient is a minor, the patient's
    29  parent, or among an attending [physician, an  attending  nurse]  practi-
    30  tioner,  a  parent,  non-custodial  parent, or legal guardian of a minor
    31  patient, any person on the surrogate list,  and  the  hospital  that  is
    32  caring for the patient.
    33    4.  If  a dispute between a patient who expressed a decision rejecting
    34  cardiopulmonary resuscitation and  an  attending  [physician,  attending
    35  nurse]  practitioner  or  the hospital that is caring for the patient is
    36  submitted to the dispute mediation system, and either:
    37    (a) the dispute mediation system has concluded its efforts to  resolve
    38  the dispute, or
    39    (b) seventy-two hours have elapsed from the time of submission without
    40  resolution  of  the  dispute, whichever shall occur first, the attending
    41  [physician or attending nurse] practitioner shall either:  (i)  promptly
    42  issue an order not to resuscitate the patient or issue the order at such
    43  time  as  the conditions, if any, specified in the decision are met, and
    44  inform the hospital staff responsible for  the  patient's  care  of  the
    45  order;  or  (ii)  promptly  arrange  for  the transfer of the patient to
    46  another physician, nurse practitioner, physician assistant or hospital.
    47    § 14. Subdivision 1 of section 2973  of  the  public  health  law,  as
    48  amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
    49  follows:
    50    1. The patient, an attending [physician, attending nurse]  practition-
    51  er,  a  parent,  non-custodial  parent,  or  legal  guardian  of a minor
    52  patient, any person on the surrogate list, the hospital that  is  caring
    53  for  the  patient  and  the  facility  director,  may commence a special
    54  proceeding pursuant to article four of the civil practice law and rules,
    55  in a court of competent jurisdiction, with respect to any dispute  aris-
    56  ing  under  this  article,  except that the decision of a patient not to
        S. 4841                             9
 
     1  consent to issuance of an order not to resuscitate may not be  subjected
     2  to  judicial review. In any proceeding brought pursuant to this subdivi-
     3  sion challenging a decision regarding issuance of an order not to resus-
     4  citate  on  the  ground  that  the decision is contrary to the patient's
     5  wishes or best interests, the person or entity challenging the  decision
     6  must  show,  by  clear  and  convincing  evidence,  that the decision is
     7  contrary  to  the  patient's  wishes  including  consideration  of   the
     8  patient's religious and moral beliefs, or, in the absence of evidence of
     9  the  patient's  wishes,  that  the decision is contrary to the patient's
    10  best interests. In any other proceeding brought pursuant to this  subdi-
    11  vision, the court shall make its determination based upon the applicable
    12  substantive standards and procedures set forth in this article.
    13    § 15. Section 2976 of the public health law, as amended by chapter 430
    14  of the laws of 2017, is amended to read as follows:
    15    §  2976. Judicially approved order not to resuscitate. 1. If no surro-
    16  gate is reasonably available, willing to make a decision regarding issu-
    17  ance of an order not to resuscitate, and competent to  make  a  decision
    18  regarding  issuance of an order not to resuscitate on behalf of an adult
    19  patient who lacks capacity and who had not previously expressed a  deci-
    20  sion  regarding  cardiopulmonary resuscitation pursuant to this article,
    21  an attending [physician or attending nurse] practitioner or hospital may
    22  commence a special proceeding pursuant to  article  four  of  the  civil
    23  practice  law  and  rules,  in  a court of competent jurisdiction, for a
    24  judgment directing the physician [or], nurse practitioner  or  physician
    25  assistant  to  issue an order not to resuscitate where the patient has a
    26  terminal condition, is permanently unconscious, or  resuscitation  would
    27  impose  an extraordinary burden on the patient in light of the patient's
    28  medical condition and the expected  outcome  of  resuscitation  for  the
    29  patient,  and issuance of an order not to resuscitate is consistent with
    30  the patient's wishes including a consideration of  the  patient's  reli-
    31  gious  and moral beliefs or, in the absence of evidence of the patient's
    32  wishes, the patient's best interests.
    33    2. Nothing in this article shall be construed to preclude a  court  of
    34  competent  jurisdiction  from  approving the issuance of an order not to
    35  resuscitate under circumstances other than those  under  which  such  an
    36  order may be issued pursuant to this article.
    37    §  16. Subdivisions 2, 9-a and 13 of section 2980 of the public health
    38  law, subdivisions 2 and 13 as added by chapter 752 of the laws of  1990,
    39  subdivision  9-a  as added by chapter 8 of the laws of 2010, are amended
    40  to read as follows:
    41    2. "Attending [physician] practitioner" means the physician, physician
    42  assistant, or nurse practitioner,  licensed  or  certified  pursuant  to
    43  title  eight of the education law, selected by or assigned to a patient,
    44  who has primary  responsibility  for  the  treatment  and  care  of  the
    45  patient.  Where  more  than one physician, physician assistant, or nurse
    46  practitioner shares such responsibility, or where a physician, physician
    47  assistant, or nurse practitioner is  acting  on  the  attending  [physi-
    48  cian's]  practitioner's  behalf, any such physician, nurse practitioner,
    49  or physician assistant may act as the attending [physician] practitioner
    50  pursuant to this article.
    51    9-a. "Life-sustaining treatment" means any medical treatment or proce-
    52  dure without which the patient will die within a relatively short  time,
    53  as  determined  by an attending [physician] practitioner to a reasonable
    54  degree of medical certainty. For purposes of this article,  cardiopulmo-
    55  nary resuscitation is presumed to be a life sustaining treatment without
        S. 4841                            10
 
     1  the necessity of a determination by an attending [physician] practition-
     2  er.
     3    13.  "Reasonably available" means that a person to be contacted can be
     4  contacted with diligent efforts by an attending [physician] practitioner
     5  or another person acting on behalf of the attending [physician]  practi-
     6  tioner or the hospital.
     7    §  17.  Subdivision  2-c  of  section 2980 of the public health law is
     8  REPEALED.
     9    § 18. Subdivisions 2, 3 and 6 of section 2981  of  the  public  health
    10  law,  as amended by chapter 342 of the laws of 2018, are amended to read
    11  as follows:
    12    2. Health care proxy; execution; witnesses. (a) A competent adult  may
    13  appoint  a health care agent by a health care proxy, signed and dated by
    14  the adult in the presence of two adult witnesses who shall also sign the
    15  proxy. Another person may sign and date the health care  proxy  for  the
    16  adult  if  the adult is unable to do so, at the adult's direction and in
    17  the adult's presence, and in the presence of  two  adult  witnesses  who
    18  shall  sign  the  proxy.  The  witnesses  shall state that the principal
    19  appeared to execute the proxy willingly and free from duress. The person
    20  appointed as agent shall not act as witness to execution of  the  health
    21  care proxy.
    22    (b)  For  persons  who reside in a mental hygiene facility operated or
    23  licensed by the office of mental health, at least one witness  shall  be
    24  an individual who is not affiliated with the facility and, if the mental
    25  hygiene  facility  is  also  a hospital as defined in subdivision ten of
    26  section 1.03 of the mental hygiene law, at least one witness shall be  a
    27  qualified psychiatrist or psychiatric nurse practitioner.
    28    (c)  For  persons  who reside in a mental hygiene facility operated or
    29  licensed by the office for people with  developmental  disabilities,  at
    30  least  one witness shall be an individual who is not affiliated with the
    31  facility and at least one witness shall be a  physician,  nurse  practi-
    32  tioner,  physician  assistant  or  clinical  psychologist  who either is
    33  employed by  a  developmental  disabilities  services  office  named  in
    34  section  13.17  of the mental hygiene law or who has been employed for a
    35  minimum of two years to render care and service in a  facility  operated
    36  or licensed by the office for people with developmental disabilities, or
    37  has  been  approved by the commissioner of developmental disabilities in
    38  accordance with regulations approved by  the  commissioner.  Such  regu-
    39  lations  shall  require  that a physician, nurse practitioner, physician
    40  assistant, or clinical  psychologist  possess  specialized  training  or
    41  three years experience in treating developmental disabilities.
    42    3.  Restrictions on who may be and limitations on a health care agent.
    43  (a) An operator, administrator or employee of  a  hospital  may  not  be
    44  appointed  as  a health care agent by any person who, at the time of the
    45  appointment, is a patient or resident of, or has applied  for  admission
    46  to, such hospital.
    47    (b)  The  restriction  in  paragraph (a) of this subdivision shall not
    48  apply to:
    49    (i) an operator, administrator  or  employee  of  a  hospital  who  is
    50  related to the principal by blood, marriage or adoption; or
    51    (ii)  a physician, physician assistant, or nurse practitioner, subject
    52  to the limitation set forth in paragraph (c) of this subdivision, except
    53  that no physician or nurse practitioner affiliated with a mental hygiene
    54  facility or a psychiatric unit of a general hospital may serve as  agent
    55  for  a  principal  residing in or being treated by such facility or unit
        S. 4841                            11
 
     1  unless the physician is related to the principal by blood,  marriage  or
     2  adoption.
     3    (c)  If  a  physician,  physician  assistant, or nurse practitioner is
     4  appointed agent, the physician, physician assistant,  or  nurse  practi-
     5  tioner  shall not act as the patient's attending [physician or attending
     6  nurse] practitioner after the authority  under  the  health  care  proxy
     7  commences,  unless  the physician, physician assistant, or nurse practi-
     8  tioner declines the appointment as agent at or before such time.
     9    (d) No person who is not the spouse, child, parent, brother, sister or
    10  grandparent of the principal, or is the issue of, or  married  to,  such
    11  person,  shall  be  appointed  as a health care agent if, at the time of
    12  appointment, he or she is presently appointed health care agent for  ten
    13  principals.
    14    6.  Alternate  agent. (a) A competent adult may designate an alternate
    15  agent in the health care proxy to serve in place of the agent when:
    16    (i) the attending [physician  or  attending  nurse]  practitioner  has
    17  determined in a writing signed by the physician, physician assistant, or
    18  nurse practitioner (A) that the person appointed as agent is not reason-
    19  ably  available,  willing  and competent to serve as agent, and (B) that
    20  such person is not expected to become reasonably available, willing  and
    21  competent  to make a timely decision given the patient's medical circum-
    22  stances;
    23    (ii) the agent is disqualified from acting on the  principal's  behalf
    24  pursuant  to  subdivision  three  of  this section or subdivision two of
    25  section two thousand nine hundred ninety-two of this article, or
    26    (iii) under conditions set forth in the proxy.
    27    (b) If, after an alternate agent's  authority  commences,  the  person
    28  appointed  as agent becomes available, willing and competent to serve as
    29  agent:
    30    (i) the authority of the alternate agent shall cease and the authority
    31  of the agent shall commence; and
    32    (ii) the attending [physician or attending nurse]  practitioner  shall
    33  record  the  change in agent and the reasons therefor in the principal's
    34  medical record.
    35    § 19. Subdivisions 1, 2, 6 and 7 of section 2983 of the public  health
    36  law,  as amended by chapter 342 of the laws of 2018, are amended to read
    37  as follows:
    38    1. Determination by attending [physician or attending  nurse]  practi-
    39  tioner.  (a)  A  determination  that  a principal lacks capacity to make
    40  health care decisions shall be  made  by  the  attending  [physician  or
    41  attending nurse] practitioner to a reasonable degree of medical certain-
    42  ty.  The  determination  shall be made in writing and shall contain such
    43  attending  [physician's  or  attending  nurse]  practitioner's   opinion
    44  regarding  the cause and nature of the principal's incapacity as well as
    45  its extent and probable duration. The determination shall be included in
    46  the patient's medical record. For a decision  to  withdraw  or  withhold
    47  life-sustaining  treatment, the attending [physician or attending nurse]
    48  practitioner who makes the determination that a principal lacks capacity
    49  to make health care  decisions  must  consult  with  another  physician,
    50  physician  assistant,  or  nurse  practitioner  to confirm such determi-
    51  nation. Such consultation shall also be included  within  the  patient's
    52  medical record.
    53    (b)  If  an attending [physician or attending nurse] practitioner of a
    54  patient in a general hospital or mental hygiene facility determines that
    55  a patient lacks  capacity  because  of  mental  illness,  the  attending
    56  [physician  or attending nurse] practitioner who makes the determination
        S. 4841                            12
 
     1  must be, or must consult, for the purpose  of  confirming  the  determi-
     2  nation,  with  a  qualified  psychiatrist. A record of such consultation
     3  shall be included in the patient's medical record.
     4    (c)  If  the  attending  [physician  or  attending nurse] practitioner
     5  determines that a patient lacks  capacity  because  of  a  developmental
     6  disability,  the  attending  [physician or attending nurse] practitioner
     7  who makes the determination must be, or must consult, for the purpose of
     8  confirming the determination,  with  a  physician,  nurse  practitioner,
     9  physician  assistant, or clinical psychologist who either is employed by
    10  a developmental disabilities services office named in section  13.17  of
    11  the  mental  hygiene  law, or who has been employed for a minimum of two
    12  years to render care and service in a facility operated or  licensed  by
    13  the  office  for  people  with  developmental  disabilities, or has been
    14  approved by the commissioner of developmental disabilities in accordance
    15  with regulations promulgated  by  such  commissioner.  Such  regulations
    16  shall require that a physician, nurse practitioner, physician assistant,
    17  or  clinical  psychologist  possess  specialized training or three years
    18  experience in treating developmental  disabilities.  A  record  of  such
    19  consultation shall be included in the patient's medical record.
    20    (d)  A  physician,  physician assistant, or nurse practitioner who has
    21  been appointed as a patient's agent shall not make the determination  of
    22  the patient's capacity to make health care decisions.
    23    2.  Request for a determination. If requested by the agent, an attend-
    24  ing [physician or attending nurse] practitioner shall  make  a  determi-
    25  nation  regarding the principal's capacity to make health care decisions
    26  for the purposes of this article.
    27    6. Confirmation of lack of capacity. (a) The attending  [physician  or
    28  attending  nurse]  practitioner  shall confirm the principal's continued
    29  incapacity before complying with an agent's health care decisions, other
    30  than those decisions made at or about the time of the  initial  determi-
    31  nation  made  pursuant to subdivision one of this section. The confirma-
    32  tion shall be stated in writing and shall be included in the principal's
    33  medical record.
    34    (b) The notice requirements set forth in  subdivision  three  of  this
    35  section  shall  not  apply to the confirmation required by this subdivi-
    36  sion.
    37    7. Effect of recovery of capacity. In the event the attending  [physi-
    38  cian  or attending nurse] practitioner determines that the principal has
    39  regained capacity, the authority of the agent  shall  cease,  but  shall
    40  recommence  if  the  principal subsequently loses capacity as determined
    41  pursuant to this section.
    42    § 20. Subdivision 2 of section 2985  of  the  public  health  law,  as
    43  amended  by  chapter  342  of  the  laws  of 2018, is amended to read as
    44  follows:
    45    2. Duty to record revocation. (a) A physician, physician assistant, or
    46  nurse practitioner who is informed of or provided with a revocation of a
    47  health care proxy shall immediately (i) record  the  revocation  in  the
    48  principal's  medical  record  and  (ii) notify the agent and the medical
    49  staff responsible for the principal's care of the revocation.
    50    (b) Any member of the staff of a health care provider informed  of  or
    51  provided  with  a  revocation  of  a  health care proxy pursuant to this
    52  section shall immediately notify a physician,  physician  assistant,  or
    53  nurse practitioner of such revocation.
    54    § 21. Subdivisions 2 and 4 of section 2994-a of the public health law,
    55  as  amended  by  chapter 430 of the laws of 2017, are amended to read as
    56  follows:
        S. 4841                            13
 
     1    2. "Attending [physician"]  practitioner"  means  a  physician,  nurse
     2  practitioner  or  physician  assistant,  selected  by  or  assigned to a
     3  patient pursuant to hospital policy, who has primary responsibility  for
     4  the  treatment  and  care  of the patient. Where more than one physician
     5  [and/or],  nurse practitioner or physician assistant shares such respon-
     6  sibility, or where a physician [or],  nurse  practitioner  or  physician
     7  assistant  is  acting  on the attending [physician's or attending nurse]
     8  practitioner's behalf, any such physician [or],  nurse  practitioner  or
     9  physician  assistant  may  act  as  an attending [physician or attending
    10  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. Subdivisions 2 and 3 of section 2994-b of the public health law,
    19  as amended by chapter 430 of the laws of 2017, are amended  to  read  as
    20  follows:
    21    2. Prior to seeking or relying upon a health care decision by a surro-
    22  gate  for  a  patient  under  this  article, the attending [physician or
    23  attending nurse] practitioner shall make reasonable efforts to determine
    24  whether the patient has a health care agent appointed pursuant to  arti-
    25  cle  twenty-nine-C of this chapter. If so, health care decisions for the
    26  patient shall be governed by such article, and shall have priority  over
    27  decisions  by  any  other  person  except  the  patient  or as otherwise
    28  provided in the health care proxy.
    29    3. Prior to seeking or relying upon a health care decision by a surro-
    30  gate for a patient under this article, if the  attending  [physician  or
    31  attending nurse] practitioner has reason to believe that the patient has
    32  a  history  of  receiving  services for mental retardation or a develop-
    33  mental disability; it reasonably appears to the attending [physician  or
    34  attending nurse] practitioner that the patient has mental retardation or
    35  a  developmental  disability;  or  the [attending physician or attending
    36  nurse] practitioner has reason to believe  that  the  patient  has  been
    37  transferred  from  a mental hygiene facility operated or licensed by the
    38  office of mental health, then such physician [or], nurse practitioner or
    39  physician assistant shall make reasonable efforts to  determine  whether
    40  paragraphs (a), (b) or (c) of this subdivision are applicable:
    41    (a)  If  the  patient  has a guardian appointed by a court pursuant to
    42  article seventeen-A of the surrogate's court procedure act, health  care
    43  decisions for the patient shall be governed by section seventeen hundred
    44  fifty-b of the surrogate's court procedure act and not by this article.
    45    (b)  If a patient does not have a guardian appointed by a court pursu-
    46  ant to article seventeen-A of the surrogate's court  procedure  act  but
    47  falls within the class of persons described in paragraph (a) of subdivi-
    48  sion  one of section seventeen hundred fifty-b of such act, decisions to
    49  withdraw or withhold life-sustaining treatment for the patient shall  be
    50  governed  by  section seventeen hundred fifty-b of the surrogate's court
    51  procedure act and not by this article.
    52    (c) If a health care decision for a patient cannot be made under para-
    53  graphs (a) or (b) of this subdivision, but consent for the decision  may
    54  be  provided  pursuant  to  the mental hygiene law or regulations of the
    55  office of mental health or the  office  for  people  with  developmental
        S. 4841                            14
 
     1  disabilities,  then  the  decision  shall be governed by such statute or
     2  regulations and not by this article.
     3    §  23.  Subdivisions 2, 3 and 7 of section 2994-c of the public health
     4  law, as amended by chapter 430 of the laws of 2017, are amended to  read
     5  as follows:
     6    2.  Initial  determination by attending [physician or attending nurse]
     7  practitioner. An attending [physician or attending  nurse]  practitioner
     8  shall  make  an  initial determination that an adult patient lacks deci-
     9  sion-making capacity to a reasonable degree of medical certainty.   Such
    10  determination shall include an assessment of the cause and extent of the
    11  patient's  incapacity  and  the  likelihood that the patient will regain
    12  decision-making capacity.
    13    3. Concurring determinations. (a)  An  initial  determination  that  a
    14  patient  lacks decision-making capacity shall be subject to a concurring
    15  determination, independently made, where required by this subdivision. A
    16  concurring determination shall include an assessment of  the  cause  and
    17  extent  of  the patient's incapacity and the likelihood that the patient
    18  will regain decision-making capacity,  and  shall  be  included  in  the
    19  patient's medical record. Hospitals shall adopt written policies identi-
    20  fying  the training and credentials of health or social services practi-
    21  tioners qualified to provide concurring determinations of incapacity.
    22    (b) (i) In a residential health care  facility,  a  health  or  social
    23  services  practitioner employed by or otherwise formally affiliated with
    24  the facility must independently determine whether an adult patient lacks
    25  decision-making capacity.
    26    (ii) In a general hospital a health or  social  services  practitioner
    27  employed  by  or  otherwise  formally  affiliated with the facility must
    28  independently determine whether an adult patient  lacks  decision-making
    29  capacity  if  the  surrogate's decision concerns the withdrawal or with-
    30  holding of life-sustaining treatment.
    31    (iii) With respect to decisions regarding hospice care for  a  patient
    32  in a general hospital or residential health care facility, the health or
    33  social  services  practitioner must be employed by or otherwise formally
    34  affiliated with the general hospital or residential health care  facili-
    35  ty.
    36    (c)  (i)  If the attending [physician or attending nurse] practitioner
    37  makes an initial determination  that  a  patient  lacks  decision-making
    38  capacity  because of mental illness, either such physician must have the
    39  following qualifications, or another physician with the following quali-
    40  fications must independently determine whether the patient  lacks  deci-
    41  sion-making  capacity:  a physician licensed to practice medicine in New
    42  York state, who is a diplomate or eligible to be certified by the Ameri-
    43  can Board of Psychiatry and Neurology or who is certified by the  Ameri-
    44  can  Osteopathic  Board of Neurology and Psychiatry or is eligible to be
    45  certified by that board. A record of such consultation shall be included
    46  in the patient's medical record.
    47    (ii) If the attending  [physician  or  attending  nurse]  practitioner
    48  makes  an  initial  determination  that  a patient lacks decision-making
    49  capacity because of a developmental disability,  either  such  physician
    50  [or],  nurse practitioner or physician assistant must have the following
    51  qualifications, or another professional with  the  following  qualifica-
    52  tions  must  independently determine whether the patient lacks decision-
    53  making capacity: a physician or  clinical  psychologist  who  either  is
    54  employed  by  a  developmental  disabilities  services  office  named in
    55  section 13.17 of the mental hygiene law, or who has been employed for  a
    56  minimum  of  two years to render care and service in a facility operated
        S. 4841                            15

     1  or licensed by the office for people with developmental disabilities, or
     2  has been approved by the commissioner of developmental  disabilities  in
     3  accordance with regulations promulgated by such commissioner. Such regu-
     4  lations  shall require that a physician or clinical psychologist possess
     5  specialized training or three years experience in treating developmental
     6  disabilities. A record of such consultation shall  be  included  in  the
     7  patient's medical record.
     8    (d)  If  an  attending [physician or attending nurse] practitioner has
     9  determined that the patient lacks decision-making capacity  and  if  the
    10  health or social services practitioner consulted for a concurring deter-
    11  mination  disagrees  with  the  attending  [physician's or the attending
    12  nurse] practitioner's determination, the matter shall be referred to the
    13  ethics review committee if it cannot otherwise be resolved.
    14    7. Confirmation of continued  lack  of  decision-making  capacity.  An
    15  attending  [physician or attending nurse] practitioner shall confirm the
    16  adult  patient's  continued  lack  of  decision-making  capacity  before
    17  complying  with  health  care  decisions  made pursuant to this article,
    18  other than those decisions made at or about  the  time  of  the  initial
    19  determination.  A  concurring  determination  of the patient's continued
    20  lack of decision-making capacity shall be  required  if  the  subsequent
    21  health care decision concerns the withholding or withdrawal of life-sus-
    22  taining treatment. Health care providers shall not be required to inform
    23  the patient or surrogate of the confirmation.
    24    §  24.  Subdivisions 2, 3 and 5 of section 2994-d of the public health
    25  law, as amended by chapter 430 of the laws of 2017, are amended to  read
    26  as follows:
    27    2. Restrictions on who may be a surrogate. An operator, administrator,
    28  or  employee  of  a hospital or a mental hygiene facility from which the
    29  patient was transferred, or a  physician  [or],  nurse  practitioner  or
    30  physician  assistant who has privileges at the hospital or a health care
    31  provider under contract with the hospital may not serve as the surrogate
    32  for any adult who is a patient of such hospital, unless such  individual
    33  is  related  to the patient by blood, marriage, domestic partnership, or
    34  adoption, or is a close friend of the patient whose friendship with  the
    35  patient preceded the patient's admission to the facility. If a physician
    36  [or], nurse practitioner or physician assistant serves as surrogate, the
    37  physician  [or], nurse practitioner or physician assistant shall not act
    38  as the patient's attending [physician or attending  nurse]  practitioner
    39  after his or her authority as surrogate begins.
    40    3. Authority and duties of surrogate. (a) Scope of surrogate's author-
    41  ity.
    42    (i)  Subject  to  the  standards  and limitations of this article, the
    43  surrogate shall have the authority to make any and all health care deci-
    44  sions on the adult patient's behalf that the patient could make.
    45    (ii) Nothing in this article shall obligate health care  providers  to
    46  seek  the  consent of a surrogate if an adult patient has already made a
    47  decision about the proposed health care, expressed orally or in  writing
    48  or,  with  respect to a decision to withdraw or withhold life-sustaining
    49  treatment expressed either orally during hospitalization in the presence
    50  of two witnesses eighteen years of age or older, at least one of whom is
    51  a health or social services practitioner affiliated with  the  hospital,
    52  or  in  writing.  If an attending [physician or attending nurse] practi-
    53  tioner relies on the patient's prior decision, the physician [or], nurse
    54  practitioner or physician assistant shall record the prior  decision  in
    55  the patient's medical record. If a surrogate has already been designated
    56  for  the  patient,  the attending [physician or attending nurse] practi-
        S. 4841                            16
 
     1  tioner shall make reasonable efforts to notify the  surrogate  prior  to
     2  implementing  the  decision;  provided that in the case of a decision to
     3  withdraw or withhold life-sustaining treatment, the attending [physician
     4  or  attending  nurse] practitioner shall make diligent efforts to notify
     5  the surrogate and, if unable to notify the surrogate, shall document the
     6  efforts that were made to do so.
     7    (b) Commencement of surrogate's authority. The  surrogate's  authority
     8  shall  commence  upon  a determination, made pursuant to section twenty-
     9  nine hundred ninety-four-c of this article, that the adult patient lacks
    10  decision-making capacity and upon identification of a surrogate pursuant
    11  to subdivision one of this section. In the event an attending [physician
    12  or nurse] practitioner determines that the patient  has  regained  deci-
    13  sion-making capacity, the authority of the surrogate shall cease.
    14    (c)  Right  and  duty  to  be informed. Notwithstanding any law to the
    15  contrary, the surrogate shall have the right to receive medical informa-
    16  tion and medical records necessary to make informed decisions about  the
    17  patient's  health  care.  Health  care  providers  shall provide and the
    18  surrogate shall seek information necessary to make an informed decision,
    19  including information about  the  patient's  diagnosis,  prognosis,  the
    20  nature  and  consequences  of proposed health care, and the benefits and
    21  risks of and [alternative] alternatives to proposed health care.
    22    5. Decisions to withhold or  withdraw  life-sustaining  treatment.  In
    23  addition to the standards set forth in subdivision four of this section,
    24  decisions  by  surrogates to withhold or withdraw life-sustaining treat-
    25  ment (including decisions to accept a hospice plan of care that provides
    26  for the withdrawal or withholding of life-sustaining treatment) shall be
    27  authorized only if the following conditions are satisfied,  as  applica-
    28  ble:
    29    (a)(i)  Treatment  would be an extraordinary burden to the patient and
    30  an attending [physician or  attending  nurse]  practitioner  determines,
    31  with  the independent concurrence of another physician [or], nurse prac-
    32  titioner or physician assistant, that, to a reasonable degree of medical
    33  certainty and in accord with accepted medical standards, (A) the patient
    34  has an illness or injury which can be expected to cause death within six
    35  months, whether or not treatment is provided;  or  (B)  the  patient  is
    36  permanently unconscious; or
    37    (ii)  The provision of treatment would involve such pain, suffering or
    38  other burden that it would reasonably be  deemed  inhumane  or  extraor-
    39  dinarily burdensome under the circumstances and the patient has an irre-
    40  versible  or  incurable condition, as determined by an attending [physi-
    41  cian or attending nurse] practitioner with the  independent  concurrence
    42  of  another physician [or], nurse practitioner or physician assistant to
    43  a reasonable degree of medical certainty and  in  accord  with  accepted
    44  medical standards.
    45    (b)  In a residential health care facility, a surrogate shall have the
    46  authority to refuse life-sustaining treatment under subparagraph (ii) of
    47  paragraph (a) of this subdivision only if the ethics  review  committee,
    48  including  at  least one physician [or], nurse practitioner or physician
    49  assistant who is not directly responsible for the patient's care,  or  a
    50  court  of  competent  jurisdiction,  reviews the decision and determines
    51  that it meets the standards set forth in this article. This  requirement
    52  shall not apply to a decision to withhold cardiopulmonary resuscitation.
    53    (c)  In  a  general hospital, if the attending [physician or attending
    54  nurse] practitioner objects to a surrogate's  decision,  under  subpara-
    55  graph (ii) of paragraph (a) of this subdivision, to withdraw or withhold
    56  nutrition  and  hydration  provided  by  means of medical treatment, the
        S. 4841                            17
 
     1  decision shall not be implemented until  the  ethics  review  committee,
     2  including  at  least one physician [or], nurse practitioner or physician
     3  assistant who is not directly responsible for the patient's care,  or  a
     4  court  of  competent  jurisdiction,  reviews the decision and determines
     5  that it meets the standards set forth in this subdivision  and  subdivi-
     6  sion four of this section.
     7    (d)  Providing  nutrition  and  hydration  orally, without reliance on
     8  medical treatment, is not health care under  this  article  and  is  not
     9  subject to this article.
    10    (e) Expression of decisions. The surrogate shall express a decision to
    11  withdraw  or  withhold  life-sustaining  treatment  either  orally to an
    12  attending [physician or attending nurse] practitioner or in writing.
    13    § 25. Subdivisions 2 and 3 of section 2994-e of the public health law,
    14  as amended by chapter 430 of the laws of 2017, are amended  to  read  as
    15  follows:
    16    2. Decision-making standards and procedures for minor patient. (a) The
    17  parent or guardian of a minor patient shall make decisions in accordance
    18  with the minor's best interests, consistent with the standards set forth
    19  in subdivision four of section twenty-nine hundred ninety-four-d of this
    20  article, taking into account the minor's wishes as appropriate under the
    21  circumstances.
    22    (b)  An  attending  [physician  or  attending  nurse] practitioner, in
    23  consultation with a minor's parent or guardian, shall determine  whether
    24  a  minor patient has decision-making capacity for a decision to withhold
    25  or withdraw life-sustaining treatment. If the minor has such capacity, a
    26  parent's or guardian's decision to withhold or withdraw  life-sustaining
    27  treatment  for  the  minor  may  not  be implemented without the minor's
    28  consent.
    29    (c) Where a parent or guardian of a minor patient has made a  decision
    30  to  withhold  or  withdraw  life-sustaining  treatment  and an attending
    31  [physician or attending nurse] practitioner has reason to  believe  that
    32  the  minor patient has a parent or guardian who has not been informed of
    33  the decision, including a non-custodial parent or guardian, an attending
    34  [physician,attending nurse] practitioner or someone acting on his or her
    35  behalf, shall make reasonable efforts to  determine  if  the  uninformed
    36  parent  or  guardian  has  maintained substantial and continuous contact
    37  with the minor and, if so, shall make diligent efforts  to  notify  that
    38  parent or guardian prior to implementing the decision.
    39    3.  Decision-making  standards  and  procedures  for emancipated minor
    40  patient. (a) If an attending [physician or attending nurse] practitioner
    41  determines that a patient is an emancipated  minor  patient  with  deci-
    42  sion-making  capacity,  the  patient  shall have the authority to decide
    43  about life-sustaining treatment. Such authority shall include a decision
    44  to withhold  or  withdraw  life-sustaining  treatment  if  an  attending
    45  [physician  or  attending  nurse]  practitioner  and  the  ethics review
    46  committee determine that the decision accords  with  the  standards  for
    47  surrogate decisions for adults, and the ethics review committee approves
    48  the decision.
    49    (b) If the hospital can with reasonable efforts ascertain the identity
    50  of the parents or guardian of an emancipated minor patient, the hospital
    51  shall  notify such persons prior to withholding or withdrawing life-sus-
    52  taining treatment pursuant to this subdivision.
    53    § 26. Section 2994-f of the public health law, as amended  by  chapter
    54  430 of the laws of 2017, is amended to read as follows:
    55    §  2994-f.  Obligations  of  attending  [physician or attending nurse]
    56  practitioner. 1. An attending [physician or attending nurse] practition-
        S. 4841                            18
 
     1  er informed of a decision to withdraw or withhold life-sustaining treat-
     2  ment made pursuant to the standards of this  article  shall  record  the
     3  decision  in  the patient's medical record, review the medical basis for
     4  the  decision,  and  shall  either:  (a)  implement the decision, or (b)
     5  promptly make his or her objection to the decision and the  reasons  for
     6  the  objection  known to the decision-maker, and either make all reason-
     7  able efforts to arrange for the  transfer  of  the  patient  to  another
     8  physician [or], nurse practitioner or physician assistant, if necessary,
     9  or promptly refer the matter to the ethics review committee.
    10    2.  If  an  attending  [physician or attending nurse] practitioner has
    11  actual notice of the following objections or disagreements,  he  or  she
    12  shall  promptly  refer  the matter to the ethics review committee if the
    13  objection or disagreement cannot otherwise be resolved:
    14    (a) A health or social services practitioner consulted for  a  concur-
    15  ring  determination that an adult patient lacks decision-making capacity
    16  disagrees with the attending [physician's or  attending  nurse]  practi-
    17  tioner's determination; or
    18    (b) Any person on the surrogate list objects to the designation of the
    19  surrogate  pursuant  to  subdivision  one of section twenty-nine hundred
    20  ninety-four-d of this article; or
    21    (c) Any person on the surrogate list objects to  a  surrogate's  deci-
    22  sion; or
    23    (d) A parent or guardian of a minor patient objects to the decision by
    24  another parent or guardian of the minor; or
    25    (e) A minor patient refuses life-sustaining treatment, and the minor's
    26  parent  or  guardian  wishes  the treatment to be provided, or the minor
    27  patient objects to an attending [physician's or attending nurse] practi-
    28  tioner's determination about decision-making capacity or  recommendation
    29  about life-sustaining treatment.
    30    3.  Notwithstanding  the provisions of this section or subdivision one
    31  of section twenty-nine hundred  ninety-four-q  of  this  article,  if  a
    32  surrogate directs the provision of life-sustaining treatment, the denial
    33  of which in reasonable medical judgment would be likely to result in the
    34  death of the patient, a hospital or individual health care provider that
    35  does  not  wish  to provide such treatment shall nonetheless comply with
    36  the surrogate's decision pending either transfer of  the  patient  to  a
    37  willing  hospital or individual health care provider, or judicial review
    38  in accordance with section twenty-nine  hundred  ninety-four-r  of  this
    39  article.
    40    §  27. Subdivisions 3, 4, 5, 5-a and 6 of section 2994-g of the public
    41  health law, as amended by chapter 430 of the laws of 2017,  are  amended
    42  to read as follows:
    43    3.  Routine  medical  treatment. (a) For purposes of this subdivision,
    44  "routine medical treatment" means any treatment, service,  or  procedure
    45  to  diagnose or treat an individual's physical or mental condition, such
    46  as the administration of medication, the extraction of bodily fluids for
    47  analysis, or dental care performed with a local  anesthetic,  for  which
    48  health  care  providers ordinarily do not seek specific consent from the
    49  patient or authorized representative. It shall not include the long-term
    50  provision of treatment such as ventilator support or a nasogastric  tube
    51  but shall include such treatment when provided as part of post-operative
    52  care  or  in  response  to  an  acute illness and recovery is reasonably
    53  expected within one month or less.
    54    (b) An attending [physician or attending nurse] practitioner shall  be
    55  authorized  to  decide  about  routine  medical  treatment  for an adult
    56  patient who has been determined to lack decision-making capacity  pursu-
        S. 4841                            19
 
     1  ant to section twenty-nine hundred ninety-four-c of this article.  Noth-
     2  ing  in  this  subdivision shall require health care providers to obtain
     3  specific consent for treatment where specific consent is  not  otherwise
     4  required by law.
     5    4.  Major  medical  treatment.  (a)  For purposes of this subdivision,
     6  "major medical treatment" means any treatment, service or  procedure  to
     7  diagnose  or  treat  an  individual's  physical or mental condition: (i)
     8  where general anesthetic is used; or (ii) which involves any significant
     9  risk; or (iii) which involves any significant invasion of bodily  integ-
    10  rity  requiring  an  incision,  producing  substantial pain, discomfort,
    11  debilitation or having a significant  recovery  period;  or  (iv)  which
    12  involves  the  use  of  physical restraints, as specified in regulations
    13  promulgated by the commissioner, except in an emergency;  or  (v)  which
    14  involves  the  use  of psychoactive medications, except when provided as
    15  part of post-operative care or in  response  to  an  acute  illness  and
    16  treatment  is  reasonably  expected  to be administered over a period of
    17  forty-eight hours or less, or when provided in an emergency.
    18    (b) A decision to provide major medical treatment, made in  accordance
    19  with  the  following  requirements,  shall  be  authorized  for an adult
    20  patient who has been determined to lack decision-making capacity  pursu-
    21  ant to section twenty-nine hundred ninety-four-c of this article.
    22    (i)  An  attending  [physician  or attending nurse] practitioner shall
    23  make a recommendation  in  consultation  with  hospital  staff  directly
    24  responsible for the patient's care.
    25    (ii)  In  a general hospital, at least one other physician [or], nurse
    26  practitioner or physician assistant  designated  by  the  hospital  must
    27  independently  determine  that he or she concurs that the recommendation
    28  is appropriate.
    29    (iii) In a residential health care facility, and for a hospice patient
    30  not in a general hospital, the  medical  director  of  the  facility  or
    31  hospice,  or a physician [or], nurse practitioner or physician assistant
    32  designated by the medical director, must independently determine that he
    33  or she concurs that the recommendation is appropriate; provided that  if
    34  the  medical director is the patient's attending [physician or attending
    35  nurse] practitioner, a different physician [or], nurse  practitioner  or
    36  physician  assistant  designated by the residential health care facility
    37  or hospice must make  this  independent  determination.  Any  health  or
    38  social  services  practitioner  employed by or otherwise formally affil-
    39  iated with the facility or hospice may  provide  a  second  opinion  for
    40  decisions about physical restraints made pursuant to this subdivision.
    41    5.  Decisions to withhold or withdraw life-sustaining treatment. (a) A
    42  court of competent jurisdiction may make a decision to withhold or with-
    43  draw life-sustaining treatment for an adult patient who has been  deter-
    44  mined  to  lack decision-making capacity pursuant to section twenty-nine
    45  hundred ninety-four-c of this article if the court finds that the  deci-
    46  sion accords with standards for decisions for adults set forth in subdi-
    47  visions  four  and  five of section twenty-nine hundred ninety-four-d of
    48  this article.
    49    (b) If the attending [physician or attending nurse] practitioner, with
    50  independent concurrence of a second physician [or],  nurse  practitioner
    51  or  physician  assistant  designated  by  the  hospital, determines to a
    52  reasonable degree of medical certainty that:
    53    (i) life-sustaining treatment offers the patient  no  medical  benefit
    54  because  the  patient  will  die  imminently,  even  if the treatment is
    55  provided; and
        S. 4841                            20
 
     1    (ii) the provision of life-sustaining treatment would violate accepted
     2  medical standards, then such treatment may be withdrawn or withheld from
     3  an adult patient who has been determined to lack decision-making capaci-
     4  ty pursuant to section twenty-nine hundred ninety-four-c of  this  arti-
     5  cle,  without  judicial  approval. This paragraph shall not apply to any
     6  treatment necessary to alleviate pain or discomfort.
     7    5-a. Decisions regarding hospice  care.  An  attending  [physician  or
     8  attending  nurse]  practitioner  shall  be  authorized to make decisions
     9  regarding hospice care and execute appropriate documents for such  deci-
    10  sions  (including  a  hospice  election form) for an adult patient under
    11  this section who is hospice eligible in accordance  with  the  following
    12  requirements.
    13    (a)  The  attending  [physician or attending nurse] practitioner shall
    14  make decisions under this section in consultation  with  staff  directly
    15  responsible  for the patient's care, and shall base his or her decisions
    16  on the standards for surrogate decisions set forth in subdivisions  four
    17  and five of section twenty-nine hundred ninety-four-d of this article;
    18    (b) There is a concurring opinion as follows:
    19    (i)  in  a  general hospital, at least one other physician [or], nurse
    20  practitioner or physician assistant  designated  by  the  hospital  must
    21  independently  determine  that he or she concurs that the recommendation
    22  is consistent with such standards for surrogate decisions;
    23    (ii) in a residential health care facility, the  medical  director  of
    24  the  facility,  or  a  physician  [or],  nurse practitioner or physician
    25  assistant designated by the medical director, must independently  deter-
    26  mine  that  he or she concurs that the recommendation is consistent with
    27  such standards for surrogate decisions; provided  that  if  the  medical
    28  director is the patient's attending [physician or attending nurse] prac-
    29  titioner,  a  different  physician [or], nurse practitioner or physician
    30  assistant designated by the residential health care facility  must  make
    31  this independent determination; or
    32    (iii)  in settings other than a general hospital or residential health
    33  care facility, the medical director  of  the  hospice,  or  a  physician
    34  designated by the medical director, must independently determine that he
    35  or  she  concurs  that  the  recommendation is medically appropriate and
    36  consistent with such standards for surrogate decisions; provided that if
    37  the medical director is the patient's attending physician,  a  different
    38  physician  designated by the hospice must make this independent determi-
    39  nation; and
    40    (c) The ethics review committee of the general  hospital,  residential
    41  health  care  facility or hospice, as applicable, including at least one
    42  physician [or], nurse practitioner or physician assistant who is not the
    43  patient's attending [physician or attending nurse]  practitioner,  or  a
    44  court  of competent jurisdiction, must review the decision and determine
    45  that it is consistent with such standards for surrogate decisions.
    46    6.  Physician  [or],  nurse  practitioner   or   physician   assistant
    47  objection.  If a physician [or], nurse practitioner or physician assist-
    48  ant consulted for a concurring opinion objects to an  attending  [physi-
    49  cian's  or  attending  nurse]  practitioner's recommendation or determi-
    50  nation made pursuant to this section, or a member of the hospital  staff
    51  directly  responsible  for  the  patient's  care objects to an attending
    52  [physician's or attending  nurse]  practitioner's  recommendation  about
    53  major medical treatment or treatment without medical benefit, the matter
    54  shall  be referred to the ethics review committee if it cannot be other-
    55  wise resolved.
        S. 4841                            21
 
     1    § 28. Section 2994-j of the public health law, as amended  by  chapter
     2  430 of the laws of 2017, is amended to read as follows:
     3    § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or
     4  guardian of a minor patient may at any time revoke his or her consent to
     5  withhold or withdraw life-sustaining treatment by informing an attending
     6  [physician,  attending nurse] practitioner or a member of the medical or
     7  nursing staff of the revocation.
     8    2. An attending [physician or attending nurse]  practitioner  informed
     9  of  a  revocation  of  consent made pursuant to this section shall imme-
    10  diately:
    11    (a) record the revocation in the patient's medical record;
    12    (b) cancel any orders implementing the decision to withhold  or  with-
    13  draw treatment; and
    14    (c)  notify  the hospital staff directly responsible for the patient's
    15  care of the revocation and any cancellations.
    16    3. Any member of the medical or nursing  staff,  other  than  a  nurse
    17  practitioner  or  physician  assistant,  informed  of  a revocation made
    18  pursuant to this section shall immediately notify an  attending  [physi-
    19  cian or attending nurse] practitioner of the revocation.
    20    §  29. The opening paragraph of subdivision 2 of section 2994-k of the
    21  public health law, as amended by chapter 430 of the  laws  of  2017,  is
    22  amended to read as follows:
    23    If  a  decision  to withhold or withdraw life-sustaining treatment has
    24  been made pursuant to this  article,  and  an  attending  [physician  or
    25  attending  nurse]  practitioner determines at any time that the decision
    26  is no longer appropriate or authorized because the patient has  regained
    27  decision-making  capacity  or because the patient's condition has other-
    28  wise improved, the  physician  [or],  nurse  practitioner  or  physician
    29  assistant shall immediately:
    30    §  30.  Section 2994-l of the public health law, as amended by chapter
    31  430 of the laws of 2017, 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
    37  transferred patient, whereupon  an  attending  [physician  or  attending
    38  nurse] 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
    46  the  person  who made the decision to withhold or withdraw treatment and
    47  the hospital staff directly responsible for the patient's  care  of  any
    48  such  cancellation.  If  such  notice cannot reasonably be made prior to
    49  canceling the order or  plan,  the  attending  [physician  or  attending
    50  nurse] practitioner shall make such notice as soon as reasonably practi-
    51  cable after cancellation.
    52    § 31. Subdivisions 3 and 4 of section 2994-m of the public health law,
    53  as  amended  by  chapter 430 of the laws of 2017, are amended to read as
    54  follows:
    55    3. Committee membership. The membership of  ethics  review  committees
    56  must  be  interdisciplinary  and  must include at least five members who
        S. 4841                            22
 
     1  have demonstrated an interest in or commitment to patient's rights or to
     2  the medical, public health, or social needs of those  who  are  ill.  At
     3  least  three  ethics  review  committee members must be health or social
     4  services  practitioners, at least one of whom must be a registered nurse
     5  and one of whom must be a physician [or], nurse practitioner  or  physi-
     6  cian  assistant. At least one member must be a person without any gover-
     7  nance, employment or contractual relationship with the  hospital.  In  a
     8  residential  health care facility the facility must offer the residents'
     9  council of the facility (or of another facility that participates in the
    10  committee) the opportunity to appoint up to two persons  to  the  ethics
    11  review  committee,  none of whom may be a resident of or a family member
    12  of a resident of such facility, and both of whom shall  be  persons  who
    13  have  expertise  in or a demonstrated commitment to patient rights or to
    14  the care and treatment of the elderly or nursing home residents  through
    15  professional or community activities, other than activities performed as
    16  a health care provider.
    17    4.  Procedures  for  ethics review committee. (a) These procedures are
    18  required only when: (i) the  ethics  review  committee  is  convened  to
    19  review a decision by a surrogate to withhold or withdraw life-sustaining
    20  treatment  for:  (A)  a  patient  in  a residential health care facility
    21  pursuant to paragraph (b) of subdivision  five  of  section  twenty-nine
    22  hundred ninety-four-d of this article; (B) a patient in a general hospi-
    23  tal pursuant to paragraph (c) of subdivision five of section twenty-nine
    24  hundred  ninety-four-d  of  this  article;  or  (C) an emancipated minor
    25  patient pursuant to subdivision three  of  section  twenty-nine  hundred
    26  ninety-four-e  of this article; or (ii) when a person connected with the
    27  case requests the ethics  review  committee  to  provide  assistance  in
    28  resolving  a  dispute about proposed care. Nothing in this section shall
    29  bar health care  providers  from  first  striving  to  resolve  disputes
    30  through  less  formal  means,  including  the  informal  solicitation of
    31  ethical advice from any source.
    32    (b)(i) A person connected with the case  may  not  participate  as  an
    33  ethics review committee member in the consideration of that case.
    34    (ii)  The  ethics review committee shall respond promptly, as required
    35  by the circumstances, to any  request  for  assistance  in  resolving  a
    36  dispute or consideration of a decision to withhold or withdraw life-sus-
    37  taining treatment pursuant to paragraphs (b) and (c) of subdivision five
    38  of  section  twenty-nine hundred ninety-four-d of this article made by a
    39  person connected with the  case.  The  committee  shall  permit  persons
    40  connected  with the case to present their views to the committee, and to
    41  have the option of being accompanied by an advisor when participating in
    42  a committee meeting.
    43    (iii) The ethics review committee shall promptly provide the  patient,
    44  where there is any indication of the patient's ability to comprehend the
    45  information, the surrogate, other persons on the surrogate list directly
    46  involved  in  the  decision or dispute regarding the patient's care, any
    47  parent or guardian of a minor patient directly involved in the  decision
    48  or  dispute regarding the minor patient's care, an attending [physician,
    49  an attending nurse] practitioner, the hospital, and  other  persons  the
    50  committee deems appropriate, with the following:
    51    (A)  notice  of any pending case consideration concerning the patient,
    52  including, for patients, persons on  the  surrogate  list,  parents  and
    53  guardians,  information  about the ethics review committee's procedures,
    54  composition and function; and
    55    (B) the committee's response to the case, including a  written  state-
    56  ment  of  the  reasons  for approving or disapproving the withholding or
        S. 4841                            23
 
     1  withdrawal of life-sustaining treatment for decisions considered  pursu-
     2  ant to subparagraph (ii) of paragraph (a) of subdivision five of section
     3  twenty-nine  hundred  ninety-four-d  of  this  article.  The committee's
     4  response to the case shall be included in the patient's medical record.
     5    (iv)  Following  ethics  review  committee  consideration  of  a  case
     6  concerning the withdrawal or withholding of  life-sustaining  treatment,
     7  treatment  shall  not be withdrawn or withheld until the persons identi-
     8  fied in subparagraph (iii) of this paragraph have been informed  of  the
     9  committee's response to the case.
    10    (c)  When  an  ethics review committee is convened to review decisions
    11  regarding hospice care for a patient in a general hospital  or  residen-
    12  tial health care facility, the responsibilities of this section shall be
    13  carried  out  by  the ethics review committee of the general hospital or
    14  residential health care facility, provided  that  such  committee  shall
    15  invite a representative from hospice to participate.
    16    §  32.  Paragraph (b) of subdivision 4 of section 2994-r of the public
    17  health law, as amended by chapter 430 of the laws of 2017, is amended to
    18  read as follows:
    19    (b) The following persons may commence a special proceeding in a court
    20  of competent jurisdiction to seek appointment as the health care guardi-
    21  an of a minor patient solely for the purpose of deciding about life-sus-
    22  taining treatment pursuant to this article:
    23    (i) the hospital administrator;
    24    (ii) an attending [physician or attending nurse] practitioner;
    25    (iii) the local commissioner of social services or the  local  commis-
    26  sioner of health, authorized to make medical treatment decisions for the
    27  minor  pursuant  to  section  three hundred eighty-three-b of the social
    28  services law; or
    29    (iv) an individual, eighteen years of age or older,  who  has  assumed
    30  care of the minor for a substantial and continuous period of time.
    31    §  33.  Subdivision  1  of section 2994-s of the public health law, as
    32  amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
    33  follows:
    34    1.  Any  hospital,  attending  [physician  or nurse] practitioner that
    35  refuses to honor a health care decision by a surrogate made pursuant  to
    36  this  article and in accord with the standards set forth in this article
    37  shall not be entitled to compensation for treatment, services, or proce-
    38  dures refused by the surrogate, except that this subdivision  shall  not
    39  apply:
    40    (a)  when  a hospital, physician [or], nurse practitioner or physician
    41  assistant exercises the rights granted by  section  twenty-nine  hundred
    42  ninety-four-n  of this article, provided that the physician, nurse prac-
    43  titioner, physician assistant or hospital promptly  fulfills  the  obli-
    44  gations  set  forth in section twenty-nine hundred ninety-four-n of this
    45  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,  physician  assistant  or
    52  hospital  prevails in any litigation concerning the surrogate's decision
    53  to refuse the treatment, services or procedure. Nothing in this  section
    54  shall  determine  or affect how disputes among individuals on the surro-
    55  gate list are resolved.
        S. 4841                            24
 
     1    § 34. Subdivision 2 of section 2994-aa of the public  health  law,  as
     2  amended  by  chapter  430  of  the  laws  of 2017, is amended to read as
     3  follows:
     4    2.  "Attending  [physician"]  practitioner" means the physician, nurse
     5  practitioner or physician assistant who has primary  responsibility  for
     6  the  treatment  and  care  of the patient. Where more than one physician
     7  [or], nurse practitioner or physician assistant shares such responsibil-
     8  ity, any such physician [or], nurse practitioner or physician  assistant
     9  may  act  as  the  attending [physician or attending nurse] practitioner
    10  pursuant to this article.
    11    § 35. Section 2994-cc of the public health law, as amended by  chapter
    12  430 of the laws of 2017, is amended to read as follows:
    13    §  2994-cc.  Consent  to a nonhospital order not to resuscitate. 1. An
    14  adult with decision-making capacity, a health care agent, or a surrogate
    15  may consent to a nonhospital order not  to  resuscitate  orally  to  the
    16  attending  [physician or attending nurse] practitioner or in writing. If
    17  a patient consents to a nonhospital order not to resuscitate while in  a
    18  correctional facility, notice of the patient's consent shall be given to
    19  the  facility director and reasonable efforts shall be made to notify an
    20  individual designated by the patient to receive such notice prior to the
    21  issuance of the nonhospital order not to  resuscitate.  Notification  to
    22  the  facility director or the individual designated by the patient shall
    23  not delay issuance of a nonhospital order not to resuscitate.
    24    2. Consent by a health care agent shall be governed by  article  twen-
    25  ty-nine-C of this chapter.
    26    3.  Consent by a surrogate shall be governed by article twenty-nine-CC
    27  of this chapter, except that: (a) a  second  determination  of  capacity
    28  shall  be  made by a health or social services practitioner; and (b) the
    29  authority  of  the  ethics  review  committee  set  forth   in   article
    30  twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
    31  issued in a hospital.
    32    4. (a) When the concurrence of a second physician [or], nurse  practi-
    33  tioner  or physician assistant is sought to fulfill the requirements for
    34  the issuance of a nonhospital order not to resuscitate for patients in a
    35  correctional facility, such second physician [or], nurse practitioner or
    36  physician assistant shall be selected by the chief  medical  officer  of
    37  the  department  of  corrections and community supervision or his or her
    38  designee.
    39    (b) When the concurrence of a second physician [or], nurse practition-
    40  er or physician assistant is sought to fulfill the requirements for  the
    41  issuance  of a nonhospital order not to resuscitate for hospice and home
    42  care patients, such second physician [or] , nurse practitioner or physi-
    43  cian assistant shall be selected by  the  hospice  medical  director  or
    44  hospice  nurse  coordinator designated by the medical director or by the
    45  home care services agency director of patient care services,  as  appro-
    46  priate to the patient.
    47    5.  Consent  by  a  patient  or  a surrogate for a patient in a mental
    48  hygiene facility shall be governed  by  article  twenty-nine-B  of  this
    49  chapter.
    50    §  36. Section 2994-dd of the public health law, as amended by chapter
    51  430 of the laws of 2017, is amended to read as follows:
    52    § 2994-dd. Managing a nonhospital order not  to  resuscitate.  1.  The
    53  attending  [physician  or attending nurse] practitioner shall record the
    54  issuance of a nonhospital order not  to  resuscitate  in  the  patient's
    55  medical record.
        S. 4841                            25
 
     1    2. A nonhospital order not to resuscitate shall be issued upon a stan-
     2  dard  form  prescribed  by the commissioner. The commissioner shall also
     3  develop a standard bracelet that may be worn by a patient with a nonhos-
     4  pital order not to resuscitate to identify that status; provided, howev-
     5  er,  that  no  person  may require a patient to wear such a bracelet and
     6  that no person may require a patient to wear such a bracelet as a condi-
     7  tion for honoring a nonhospital order not to resuscitate or for  provid-
     8  ing health care services.
     9    3.  An  attending  [physician or attending nurse] practitioner who has
    10  issued a nonhospital order not to resuscitate, and who transfers care of
    11  the patient to another physician [or], nurse practitioner  or  physician
    12  assistant, shall inform the physician [or], nurse practitioner or physi-
    13  cian assistant of the order.
    14    4.  For  each  patient for whom a nonhospital order not to resuscitate
    15  has been issued, the attending [physician or  attending  nurse]  practi-
    16  tioner  shall  review whether the order is still appropriate in light of
    17  the patient's condition each time he or she examines the patient, wheth-
    18  er in the hospital  or  elsewhere,  but  at  least  every  ninety  days,
    19  provided that the review need not occur more than once every seven days.
    20  The  attending  [physician or attending nurse] practitioner shall record
    21  the review in the patient's medical record  provided,  however,  that  a
    22  physician  assistant  or  a  registered  nurse, other than the attending
    23  nurse practitioner, who provides direct care to the patient  may  record
    24  the  review  in the medical record at the direction of the physician. In
    25  such case, the attending [physician  or  attending  nurse]  practitioner
    26  shall  include  a  confirmation  of  the review in the patient's medical
    27  record within fourteen days of such review. Failure to comply with  this
    28  subdivision  shall  not  render  a  nonhospital order not to resuscitate
    29  ineffective.
    30    5. A person who has consented to a nonhospital order not  to  resusci-
    31  tate  may  at any time revoke his or her consent to the order by any act
    32  evidencing a specific intent to revoke such  consent.  Any  health  care
    33  professional,  other  than  the attending [physician or attending nurse]
    34  practitioner, informed of a revocation of consent to a nonhospital order
    35  not to resuscitate shall notify the attending  [physician  or  attending
    36  nurse]  practitioner  of  the  revocation.  An  attending  [physician or
    37  attending nurse] practitioner who is informed that a  nonhospital  order
    38  not  to  resuscitate has been revoked shall record the revocation in the
    39  patient's medical record, cancel the order and make diligent efforts  to
    40  retrieve the form issuing the order, and the standard bracelet, if any.
    41    6.  The  commissioner may authorize the use of one or more alternative
    42  forms for issuing a nonhospital order not to resuscitate  (in  place  of
    43  the  standard  form prescribed by the commissioner under subdivision two
    44  of this section). Such alternative form or forms may  also  be  used  to
    45  issue  a  non-hospital do not intubate order. Any such alternative forms
    46  intended for use for persons with developmental disabilities or  persons
    47  with  mental  illness  who are incapable of making their own health care
    48  decisions or who have a guardian of the  person  appointed  pursuant  to
    49  article  eighty-one  of the mental hygiene law or article seventeen-A of
    50  the surrogate's court procedure act must also be approved by the commis-
    51  sioner of developmental  disabilities  or  the  commissioner  of  mental
    52  health, as appropriate. An alternative form under this subdivision shall
    53  otherwise  conform  with applicable federal and state law. This subdivi-
    54  sion does not limit, restrict or impair the use of an  alternative  form
    55  for  issuing  an order not to resuscitate in a general hospital or resi-
    56  dential health care facility under article twenty-eight of this  chapter
        S. 4841                            26
 
     1  or  a  hospital  under  subdivision  ten  of  section 1.03 of the mental
     2  hygiene law.
     3    §  37.  Subdivision  2 of section 2994-ee of the public health law, as
     4  amended by chapter 430 of the laws  of  2017,  is  amended  to  read  as
     5  follows:
     6    2.  Hospital  emergency  services  physicians  and  hospital emergency
     7  services nurse practitioners and physician assistants  may  direct  that
     8  the  order  be  disregarded if other significant and exceptional medical
     9  circumstances warrant disregarding the order.
    10    § 38. This act shall take effect on  the  one  hundred  eightieth  day
    11  after  it shall have become a law; provided, however that if chapter 342
    12  of the laws of 2018 shall not have taken effect on or before such  date,
    13  then sections seventeen, eighteen, nineteen and twenty of this act shall
    14  take  effect on the same date and in the same manner as such chapter 342
    15  of the laws of 2018, takes effect. Effective immediately, any rules  and
    16  regulations  necessary  to  implement  the provisions of this act on its
    17  effective date are authorized  and  directed  to  be  amended,  repealed
    18  and/or promulgated on or before such date.

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