Bill A7729D-2009

Establishes procedures for making health care decisions on behalf of patients unable to decide about treatment for themselves; repealer

Creates the family health care decisions act; establishes procedures for family members, surrogates and others close to an incapacitated patient making health care decisions on behalf of patients unable to decide about treatment for themselves in accordance with special procedures, standards and safeguards.

Details

Actions

  • Mar 16, 2010: signed chap.8
  • Mar 5, 2010: delivered to governor
  • Feb 24, 2010: RETURNED TO ASSEMBLY
  • Feb 24, 2010: PASSED SENATE
  • Feb 24, 2010: 3RD READING CAL.129
  • Feb 24, 2010: SUBSTITUTED FOR S3164B
  • Jan 20, 2010: REFERRED TO HEALTH
  • Jan 20, 2010: delivered to senate
  • Jan 20, 2010: passed assembly
  • Jan 20, 2010: ordered to third reading rules cal.4
  • Jan 20, 2010: rules report cal.4
  • Jan 20, 2010: reported
  • Jan 20, 2010: reported referred to rules
  • Jan 13, 2010: print number 7729d
  • Jan 13, 2010: amend and recommit to codes
  • Jan 12, 2010: reported referred to codes
  • Jan 6, 2010: referred to health
  • Jun 19, 2009: print number 7729c
  • Jun 19, 2009: amend and recommit to codes
  • Jun 19, 2009: print number 7729b
  • Jun 19, 2009: amend and recommit to codes
  • Jun 16, 2009: print number 7729a
  • Jun 16, 2009: amend (t) and recommit to codes
  • May 12, 2009: reported referred to codes
  • Apr 22, 2009: referred to health

Votes

Memo

BILL NUMBER:A7729D               REVISED 1/26/10

TITLE OF BILL: An act to amend the public health law, the mental hygiene law and the surrogate's court procedure act, in relation to establishing procedures for making medical treatment decisions on behalf of persons who lack the capacity to decide about treatment for themselves; directing the New York state task force on life and law to form a special advisory committee to consider the procedures and practices for withholding or withdrawal of life sustaining treatment for patients with mental illness or mental retardation and developmental disabilities; and to repeal certain provisions of the public health law and the mental hygiene law relating thereto

PURPOSE:; To establish procedures for making health care decisions on behalf of patients unable to decide about treatment for themselves.

SUMMARY OF PROVISIONS: Section one establishes a legislative intent for the Public Health Law Article 29-CC and 29-CCC, Family Health Care Decisions Act and Non-Hospital Orders Not To Resuscitate. The bill enables family members and others close to an incapacitated patient to make health care decisions in accord with special procedures, standards and safeguards.

Section two amends the Public Health Law by adding new Articles 29-CC and 29-CCC, entitled "Family Health Care Decisions Act" and "Non Hospital Orders Not To Resuscitate". Article 29-CCC makes 'conforming and technical changes with respect to New York's existing law on do-not-resuscitate orders.

The new family health care decision-making article would establish procedures authorizing family members, or other persons close to patients who lack decision-making capacity, to decide about treatment, in consultation with health care professionals and in accord with specified safeguards. The article includes special procedures and standards for decisions about life-sustaining treatments.

Section 2994-a defines several terms used in Article 29-CC as follows:

*"Hospital" means a general hospital (excluding OMH-licensed mental health units) and a residential health care facility as defined in Article 28 of the Public Health Law.

*"Patient" is defined as a person admitted to a hospital.

*A "surrogate" is a person selected to make a health care decision for a patient pursuant to the article. Certain definitions pertain to health care decisions for minor patients.

*A "parent" of a minor child is defined as a parent who has custody of, or who has maintained substantial and continuous contact with, the minor patient.

*A "guardian of a minor" or "guardian" means a legal guardian of the person of a minor, or a "health care guardian," defined as a court appointed guardian authorized to decide about life-sustaining treatment pursuant to the article.

*"Emancipated minor patient" is a minor patient who is 16 years of age or older and living independently from his or her parents or guardian, or a minor who is the parent of a child.

*"Ethics review committee" means the interdisciplinary committee established in a hospital in accord with the requirements of the article.

*"Health care"' is any treatment, service or procedure to diagnose or treat an individual's physical or mental condition. Providing artificial nutrition and hydration orally, without reliance on medical treatment, is not health care under this article and is not subject to this article.

Section 2994-b provides that the act applies to health care decisions for care provided in a hospital. It also provides that the patient has a health care agent; decisions for the patient are governed by the health care proxy law, article 29-c of the Public Health Law. Similarly, if the patient has a guardian appointed under article 17 A of the Surrogate's Court Procedure Act, or if surrogate decisions could be made for the patient pursuant to section 1750-b of the Surrogate's Court Procedure Act or pursuant to OMIT or OMRDD regulations, then decisions for the patient are governed by those laws or regulations and not by the provisions of this act.

Section 2994-c governs the determination of patient incapacity for purposes of authorizing surrogate decisions for adult patients. It creates a presumption that every adult has capacity to decide about treatment unless determined otherwise pursuant to procedures set forth in the section, or pursuant to court order. The section requires an attending physician to determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health or social service practitioner employed by or otherwise formally affiliated with the facility must concur. In a general hospital, this concurrence is required for a surrogate decision to forgo life-sustaining treatment. Hospitals must adopt written policies identifying the training and credentials of professionals qualified to provide the concurring opinion. For patients with a mental illness or developmental disability, a professional with training or expertise in diagnosing or treating the mental illness or developmental disability must provide the concurring opinion. Health care professionals must inform the patient of the determination of incapacity, if there is any indication that the patient can understand the information. The person highest on the surrogate list must also be informed. If the, patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate's decision, the patient's objection prevails, unless a court determines otherwise. The attending physician must confirm that the patient lacks decision making capacity before complying with health

care decisions. This confirmation is not required for treatments provided as part of a course of treatment authorized by consent provided at the time of the initial determination of incapacity.

Section 2994-d concerns adult patients who lack capacity to make particular health care decisions. It lists, in order of priority, the persons who may act as a surrogate, excluding administrators, employees and independent contractors ,of the hospital caring for the patient, unless they are related to the patient, or were a close friend of the patient before the patient's admission to the facility. A court-appointed guardian is the first person on the list, followed by: the spouse or domestic partner; child older than 18; a parent; a sibling; or a close adult friend or relative familiar with the patient's personal, religious and moral views regarding health care.

This section grants the surrogate authority to make all health care decisions for the patient that the adult patient could make for himself or herself, subject to the standards and limitations of the article. The section establishes the duty of health care providers to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Surrogates have a right and duty to seek this information.

Section 2994-d requires the surrogate to decide about the treatment based on the patient's wishes, including the patient's religious and moral beliefs, or, if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, based on the patient's best interest. The section authorizes decisions to withhold or withdraw life-sustaining treatment if treatment would be an extraordinary burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and the treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or excessively burdensome under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted standards of medical practice. The surrogate must determine if treatment would be an extraordinary burden in light of the patient's own wishes, preferences, and values, to the extent possible. In residential health care facilities, a surrogate can decide to forgo life-sustaining treatment for patients who are not terminally ill or permanently unconscious only if the Ethics Review Committee, including at least one physician not directly, responsible for the patient's care, or a court, reviews the decision and determine that the decision meets the standards set forth in the article for such decisions. In a general hospital, if the attending physician objects to a surrogate's decision to forgo artificial nutrition and hydration for a patient who is not terminally ill or permanently unconscious, the decision may not be implemented until the Ethics Review Committee, including at least one physician who is not directly responsible for the patient's care, or a court, reviews the decision and determines that it meets the. standards set forth in the article for such decisions. The words "excessive" and "excessively", in earlier versions of the bill, have been

changed to "extraordinary" and extraordinarily". This change of words was made to follow the wording under Surrogate's Court Procedure Act 1750-b. However this change in wording does not change the meaning of this provision.

Section 2994-e authorizes the parent or guardian of a minor patient to decide about life-sustaining treatment, in accord with the same standards that apply to surrogate decisions for adults. In addition, if a minor has the decisional capacity to decide about life-sustaining treatment, the minor's consent is required to withhold or to stop treatment. If the minor is emancipated and has decision-making capacity, the minor can decide to withhold or withdraw life-sustaining treatment on his or her own behalf, if: (i) the attending physician and the ethics review committee determine that the decision accords with the standards for surrogate decisions for adults, and (ii) the ethics review committee approves the decision. If the hospital can with reasonable efforts ascertain the identity of an emancipated minor's non custodial parent or guardian, the hospital must notify the parent prior to discontinuing treatment. If a parent or guardian objects to the decision, the article establishes his or her right to refer the matter to the ethics review committee.

Section 2994-f requires the attending physician to inform a surrogate promptly if the physician objects to a decision to withdraw or withhold life-sustaining treatment. The objecting physician must then either make all reasonable efforts to transfer the patient to another physician, if necessary, or promptly refer the matter to the ethics review committee. The section also obligates physicians to refer objections by or disagreement among family members and others close to the patient to the ethics review committee.

Section 2994-g establishes a procedure for making health care decisions for adult patients who have lost decision-making capacity and have no available family member or friend to act as a surrogate. It applies the same standards that govern decisions for adults by family or others close to them, including the special safeguards for decisions about life-sustaining treatment. The section authorizes the attending physician to decide about routine medical treatment for patients without surrogates. Routine treatment is defined to include only procedures for which physicians ordinarily do not seek specific consent from the patient or others. For decisions about major medical treatment, the attending physician must consult with hospital staff directly involved with the patient's care and at least one other physician selected by the hospital must concur in the appropriateness of the decision. A recommendation by an attending physician to withhold or withdraw life-sustaining treatment from a patient who does not have a surrogate may not be implemented unless it meets one of two requirements: One requirement is review and approval by a court. The court must determine whether the decision satisfies the specified standards for decision by surrogates to withhold or withdraw life-sustaining treatment. Alternatively, if the attending physician determines that: (i) life-sustaining treatment offers the patient no medical benefit because the patient will die immi nently; and (ii) the provision of life-sustaining treatment would violate acceptable medical standards, and one other physician concurs in this determination, life sustaining treatment may be withdrawn or withheld without review by a court.

Section 2994-i sets forth specific policies for do-not-resuscitate (DNR) orders, requiring all such orders to be written in the patient's record and clarifying that the orders provide consent to withhold only cardiopulmonary resuscitation, not other treatments.

Section 2994-j establishes that a patient, surrogate, or parent or guardian of a minor patient may at any time revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff.

Section 2994-k states that hospitals must adopt written policies requiring implementation and regular review of decisions to withhold or with draw life-sustaining treatment, in accord with accepted medical standards. It also provides that whenever an attending physician determines that a decision to withhold or withdraw life-sustaining treatment is no longer appropriate or authorized because the patient's condition has improved, the physician must include this determination in the patient's chart, cancel any orders or plans of care to withhold or withdraw treatment, and notify the person who made the decision and facility staff directly responsible for the patient's care.

Section 2994-l governs inter-institutional transfers of patients with orders or plans of care to withhold or withdraw life-sustaining treatment. It establishes that orders remain effective at the receiving hospital until an attending physician first examines the patient. The physician must then either continue or cancel the prior orders.

Section 2994-m requires each hospital and nursing home to establish at least one ethics review committee or participate in a committee that serves more than one facility. The committee can be an existing ethics committee, a subcommittee of an existing ethics committee, or a new committee created to fulfill the requirements of this article. Hospitals must adopt a written policy governing committee functions, composition and procedure, in accord with specified requirements set forth in the section. Committees must be multidisciplinary and must include at least two individuals who have demonstrated an interest in or commitment to patients' rights or to the medical, public health, or social needs of those who are At least one member must not be affiliated with the hospital. In nursing homes, the Committees must include a member of the residents' council a person who is not affiliated with the facility who is a family member of a current or former resident at the same or a different facility, and a person who has demonstrated an interest in or commitment to patients rights or to the care and treatment of the elderly or nursing home residents through professional or community activities, other than activities performed as a health care provider.

Section 2994-m also specifies that recommendations and advice by the committee are advisory and non-binding, except for committee approval or disapproval of decisions to withdraw or withhold life-sustaining treatment in specified types of cases. A committee must permit patients, certain health care professionals, family members and other close to patients to present their concerns and views to the committee, and must inform these persons of the committee's response to the case.

Section 2994-m additionally requires the committee to issue a written statement of its reasons for approving or disapproving decisions to withhold or with draw life-sustaining treatment in certain types of cases. The committee must also routinely review surrogate and committee decisions in certain sensitive cases. Ethics review committee members are granted access to medical records and information necessary to perform their function, and are obligated to protect patient confidentiality. The section also protects the confidentiality of committee records and proceedings, but grants the Department of Health access to committee records and proceedings in any cases when the committee has the authority to approve a decision to forgo life-sustaining treatment. The Department may use,such records in any enforcement proceeding against a health care facility or an individual health care professional.

Section 2994-n sets forth the right of private hospitals and individual health care providers to refuse, on grounds of moral or religious conscience, to honor health care decisions made pursuant to Article 29-CC. For a hospital to assert a conscience objection the decision must be contrary to a formally adopted policy of the facility expressly based on sincerely held religious beliefs or sincerely held moral convictions. Such ethical or religious convictions must be central to the facility's operating principles and cannot be based on administrative concerns. The policy statement must be specific in order to provide adequate notice to patients and surrogates of the fa- cility's actual policies and practices. In order to exercise an objection the facility must have informed the patient, family, or surrogate of its policy prior -to or upon admission, if reasonably possible. The section requires the hospital to cooperate in transferring the patient to another facility willing to honor the decision. If the transfer does not occur, the facility must seek judicial relief or honor the decision.

Section 2994-n also recognizes that individual health care professionals may refuse to honor treatment decisions that violate their sincerely held religious or moral convictions. Individual health care providers who assert conscience objections must promptly inform the health care facility and the person who made, the decision. The facility must then promptly transfer responsibility for the patient to another health care professional willing to honor the decision.

Section 2994-o provides protection from civil and criminal liability for acts performed by individuals reasonably and in good faith pursuant to the article as a consultant to or a member of an ethics review committee, or as a participant in an ethics review committee meeting. Health

care providers who honor a health care decision reasonably and in good faith made pursuant to the article, or take other actions in good faith pursuant to the article, are protected from civil and criminal liability and charges of professional misconduct. Surrogates and parents and guardians of minor patients are also protected from civil and criminal liability for making a health care decision in good faith under the article,

Section 2994-p states that liability for the cost of health care provided to an adult patient under Article 29 D is the same as if the patient had consented to treatment.

Section 2994-q establishes that Article 29-c,c does not create, impair, or supersede any rights an individual may have to make health care decisions for him or herself. The section clarifies that a decision by a surrogate cannot supersede or override prior decisions, wishes, or instructions by a competent adult patient, expressed orally or in writing, unless the patients decision, wishes or instructions do not apply to the particular medical circumstances under consideration. The section also clarifies that the article does not affect existing law concerning implied consent to health care in an emergency or concerning sterilization, nor is it intended to permit or promote suicide, assisted suicide or euthanasia.

Section 2994-r authorizes certain persons with a close relationship to a patient to commence a special proceeding with respect to disputes arising under the article. The section specifically provides that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person's" priority on the list, if the court determines that such appointment would best accord with the patient's wishes or, if the patient's wishes are unknown, the patient's best interests. The section also empowers a court to authorize the withholding or withdrawal of life sustaining treatment based on a determination that forgoing treatment accords with the patient's wishes, or, if such wishes cannot be ascertained, with the patient's best interests. In addition, the section establishes a procedure for appointing a health care guardian for a minor patient, specifying who has standing to seek an appointment. The section provides that the court may only appoint a health care guardian if a minor's parent or legal guardian of the person is not available, willing and competent to decide about treatment for the minor.

Section 2994-s establishes that any hospital or attending physician that refuses to honor a health care decision made by a surrogate in accord with the standards set forth in Article 29-CC shall not be entitled to compensation for treatment, services, or procedures provided without the surrogate's consent, except under specified circumstances. The section does not impose a penalty, but equitably resolves the matter of medical fees in cases where a surrogate exercises authority granted by the article, and the hospital insists on providing care notwithstanding surrogate refusal.

Section 2994-t requires the Commissioner of Health to promulgate regulations necessary to implement the article. It also requires the Commissioner of Health, in consultation with the Commissioners of the Office of Mental Health and t Mental Retardation and Developmental Disabilities, to promulgate regulations identifying the credentials of health care professionals qualified to provide a concurring opinion of incapacity based on mental illness or developmental disability.

Under Section 2994-u, the Commissioner of Health must prepare a statement summarizing the rights, duties, and requirements of the article, and require the dissemination of the statement.

The bill also creates Article 29-CCC of the Public Health Law on "NonHospital Orders Not to Resuscitate" which largely reproduces the provisions currently set forth in Section 2977 of the Public Health Law. However, Article 29-CCC clarifies that home care services agency personnel and hospice personnel, as well as emergency medical services personnel and hospital emergency room staff, can honor non-hospital DNR orders. Section 2994-cc establishes that consent by a surrogate shall be governed by the policies set forth in Article 29-CC, except that the,authority of the ethics review committee shall not apply to non-hospital orders issued outside of a hospital. In addition, the qualifications for health care professionals authorized to provide a second opinion about the patient's decision-making capacity shall be defused by regulations promulgated by the Department of Health, not by hospital policies. This assures that non-hospital orders can be issued outside of a hospital, in a physician's office or in other settings. Section 2994cc also provides that surrogate consent to a non-hospital DNR order issued for a patient in a mental hygiene facility will be governed by Article 29-B.

Section 3 amends section 2805-q of the public health law to protect the visitation rights of surrogates in health care facilities.

Section 4 renames Article 29-B as "Orders Not To Resuscitate For Residents of Mental Hygiene Facilities".

Sections 5 and 6 repeal sections of Article 29-B of the public health law that have been incorporated into Article 29-CCC by this bill.

Section 7 amends section 2961 of the public health law to add a definition of "domestic partner."

Section 8 clarifies that the attending physician in Article 29-B may not rely on the presumption that adults are capable of deciding about cardiopulmonary resuscitation if clinical indicia of incapacity are present.

Section 9 repeals subdivision 3 of section 2964 of the public health law to eliminate the "therapeutic exception" from the DNR law.

Sections 10 through 21 reconcile Article 29-CC with the existing law on do-not resuscitate established by Article 29-B of the Public Health Law.

Section 22 of the bill amends the Health Care Proxy law (§2984, new subdivision 5) to provide that, when a health care agent directs the provision of life-sustaining treatment, the denial of which would likely result in the patient's death, a hospital or individual health care provider that does not wish to provide the treatment must comply with the agent's directions, pending transfer of the patient to a willing provider, or judicial review.

Section 23 of the bill adds the definition of "life-sustaining treatment" to the Health Care Proxy law (§2980, new subdivision 9:,a).

Section 24 of the bill amends section 81.22 of the Surrogate's Court Procedure Act to provide for guardians under Mental Hygiene Law Article 81 to act as surrogates under the Family Health Care Decisions Act, Public Health Law Article 29-CC.

Section 25 of the bill repeals section 81.29 of the Surrogate's Court Procedure Act, which had limited the authority of guardians under Mental Hygiene Law Article 81 to make decisions to withdraw life-sustaining treatment.

Section 26 of the bill amends section 1750-b of the Surrogate's Court Procedure Act ("Health Care Decisions for Mentally Retarded Persons") to insert a definition of "life-sustaining treatment" and to authorize the Willowbrook Consumer Advisory Board to act as guardian for certain members of the Willowbrook class action.

Section 27 of the bill directs the New York State Task Force on Life and the Law to form a special advisory committee to assist it in considering whether the Family Health Care Decisions Act should be amended to incorporate procedures, standards and practices for the withholding or withdrawal of life-sustaining treatment from patients with mental illness, or with mental retardation or development disabilities. It also directs the Task Force to consider whether the Family Health Care Decisions Act should be amended to apply in settings other than general hospitals and residential health care facilities.

Section 28 provides for an effective date of the act.

EXISTING LAW: Adults (who have capacity to make decisions) have a firmly established right to accept or reject medical treatment based on the common law principle that "every individual of sound mind and adult years has a right to determine what should be done with his own body." SCHLOENDORFF V. SOC'Y OF N.Y. HOSP., 211 N.Y. 125, 129-30, 105 N.E. 92 (1914) (Cardozo, J.).

A capable adult may not be treated without his or her consent, except in limited circumstances, such as in an emergency. The right to decide about treatment includes the right to refuse life- sustaining measures.

IN RE EICHNER (IN RE STORAR)-, 52 N.Y.2d 363, 438 N.Y.S.2d 266 (1981). This right is protected by the New York State and United States Constitutions. RIVERS V. KATZ, 67 N.Y.2d 485,504 N.Y.S.2d 74 (1986); CRUZAN V. DIRECTOR, MISSOURI DEPT. OF HEALTH, 110 S. Ct. 2841 (1990).

Two kinds of written instruments, generally referred to as "advance directives," enable persons to exercise this right after losing the ability to participate directly in decision-making: (i) written instructions about treatment, usually called a "living will," and (ii) the written appointment of a person to make health care decisions on the person's behalf. Patients can also leave advance oral instructions about treatment. The New York Court of Appeals has held that living wills and other written or oral evidence of treatment wishes provide a legal basis for withdrawing or withholding life-sustaining measures if the instructions constitute clear and convincing evidence of the patient's wishes. In re Eichner (in re Storar); In re Westchester County Medical Center (O'Connor), 72 N.Y.2d 517,534 N.Y.S.2d 886 (1988).

New York court decisions have repeatedly demonstrated the difficulty of satisfying the clear and convincing evidence standard. See, e.g., O'Connor, New York's health care proxy law, Article 29-C of the Public Health Law, allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures. The agent must make decisions in accord with the patient's wishes, or, if they are not reason ably known, in accord with the patient's best interests. Health care providers must-honor the agent's decisions to the same extent as if they had been made by the patient, and are protected from liability for doing so. Although New York law does not explicitly recognize the authority of family members to consent to treatment for adult patients unable to decide for themselves, health care providers routinely turn to family members for consent. However, under legal doctrines enunciated by the New York Court of Appeals, family members or others close to patients cannot decide about life-sustaining treatment. In re Eichner (In re Storar).

The health care proxy law provides an important exception to this general rule, but only for individuals who have signed a proxy form. Article 29-B of the Public Health Law, governing do-not-resuscitate (DNR) orders, establishes another exception. This authorizes persons with a close relationship to the patient to decide about cardiopulmonary resuscitation. It permits a surrogate to consent to a DNR order under standards similar to those proposed for Article 29-CC. For example, the order must comport with the patient's wishes, or if they are not known, with the patient's best interests. Several other New York statutes and regulations authorize surrogate decisions for special patient populations. For example, Article 81 of the Mental Hygiene Law empowers courts to appoint a guardian to make financial and/or personal decisions for an incompetent adult. Under Article 17 -A of the Surrogate's Court Procedure Act, the court can appoint a guardian to make decisions for individuals who are mentally retarded or developmentally disabled, including decisions about life-sustaining treatment. Article 80 of the Mental Hygiene Law authorizes special interdisciplinary committees to decide

about major or medical treatment for residents of mental hygiene facilities who are unable to decide for themselves and have no family members available to consent. A distinct body of law governs health care decisions about minors, In general, parents have the right and responsibility to make treatment decisions for their minor children. See, e.g., Public Health Law 2504(2). This right derives from parents' Constitutionally protected right to rear and raise their children free from state interference. Accordingly, parental treatment decisions are accorded great deference. See, e.g., SANTO SKY V. KRAMER, 455 U.S. 645 (1982); IN RE HOFBAUER, 47 N.Y.2d 648, 419 N.Y.S.2d 936 (1979).

Although persons younger than 18 years of age generally may not decide about their own health care, New York statutes contain important exceptions to this rule. For example, Section 2504(1) of the Public Health Law authorizes minors to consent to treatment if they are either married or a parent. If specified conditions are met, New York statutes also permit minors to consent to certain treatments. See, for example, Public Health Law 2305(2) (treatment for venereal disease); Mental Hygiene Law 9. 13 (a) and 33.21 (mental illness); Public Health Law 2504(3) (parental care); Public Health Law 3123 (blood donation); Mental Hygiene Law 21.11 and 33.21 (substance abuse); and Public Health Law 2781 (FIN-related testing).

In addition, the S.S law for Birth Control and under Article 29-B of the Public Health Law, a DNR order cannot be issued for a minor without the minor's consent if the minor possesses decisional capacity. New York courts have recognized the emancipated minor doctrine for health care decisions by minors. Under this doctrine, minors are considered emancipated when an intentional rending of the parent-child relationship has occurred: parents have intentionally relinquished control over the minor, and the minor has intention ally withdrawn from legitimate parental control and guidance. See, e.g., ZUCKERMAN V. ZUCKERMAN, 154 A.D.2d 666,546 N.Y.S.2d 666 (2d Dept. 1989); BACH V.LONG ISLAND JEWISH HOSP. ,49 Misc. 2d 207, 267 N.Y.S.2d 289 (Sup. Ct., Nassau Co. 1966).

STATEMENT IN SUPPORT: Every year in health care facilities across New York State thousands of treatment decisions are made for patients unable to decide for themselves, including children, elderly patients, those temporarily impaired, those who will not regain capacity, and those never able to decide about treatment. The question for New York State policy is not whether surrogate decisions will be made, but who will make them and by what criteria. Article 29-CC provides responsible policies for decisions on behalf of patients unable to decide about treatment for themselves.

In practice, most health care providers consult family members prior to rendering.treatment to an incapacitated person. However, existing law requires that a previously competent adult patient must have signed a health care proxy or left clear evidence of his or her wishes in order to forgo life-sustaining treatment. This standard is at odds with the laws of most other states, where either statutes or court decisions expressly permit family members to decide about life- sustaining treat ment, subject to public standards. New York and Missouri are the only two states where the law explicitly denies family members this authority.

Clear evidence of the patient's wishes is extraordinarily difficult to provide in an age of rapid medical advances, even for medical experts. Studies also show that only 10-15% of the adult population has signed a proxy or other advance directive such as a living will. For children, neither clear evidence of wishes nor a health care proxy is ever a possibility. Most people would want and expect family members or others close to them to decide about treatment when they become too ill to decide for themselves. Our law denies this basic expectation. It also leaves family members unable to refuse treatment despite their deep commitment to respect the patient's values or their desire to discontinue treatment that imposes excessive burdens on the patient without offering hope for cure, recovery or relief of suffering.

This legislative proposal recognizes that few families have the emotional or financial resources to pursue judicial relief. It establishes a process to review sensitive cases and to resolve disputes within health care facilities, relying on the courts only as a last resort. This approach is consistent with the guidelines on decisions about lifesustaining treatment prepared for state court judges. Those guidelines state that "the courts should not be used as a clearinghouse for the rendering of medical decisions which are best made by the patient and family and physician of the patient. A trial court must protect itself from inappropriate involvement in a life-sustaining medical treatment case and should decline jurisdiction if there is no justifiable controversy."

With respect to the new subdivision 5 of §2984, relating to an agent who directs the provision of life-sustaining treatment, it is intended that a court reviewing the agent's direction may override the direction only on one of the three grounds specified in §2992 or on the grounds that compliance with the agent's direction is not required by this new subdivision 5. The words "but not limited to" in §2992 allow an appropriate court to consider other sorts of disputes that may arise under the article; they do not expand the grounds on which the court may override an agent's direction to provide life-sustaining treatment, For patients without family members or close friends, existing practices to decide about treatment are generally informal. They do not adequately protect these patients' right to receive treatment or their interests when decisions about life-sustaining ,treatment must be made. This is a diverse patient population, including individuals who are elderly, mentally ill or homeless. Many physicians and health care facilities now decide about treatment for these patients, including decisions to provide major medical treatment or to stop life-sustaining measures. In rare cases, a health care facility or public official seeks a court order authorizing treatment, or a committee or guardian of the person has been appointed and decides about treatment. More often, the expenses and delays associated with court proceedings are avoided, Sometimes health care professionals wait until a patient's condition deteriorates and major medical

interventions are authorized under the emergency exception to the requirement of informed consent. Other times, a patient receives treatment, but health care providers proceed without a clear legal substitute for patient or family consent. In either case, decisions are routinely made on an informal basis, without prospective or retrospective review. The proposed legislation provides a decision-making process for this patient population that will facilitate their access to needed treatment and permit the discontinuation of life-sustaining measures in accord with publicly approved procedures and patient-centered standards. For patients without family members or close friends, judicial approval is required for decisions to withhold or withdraw life-sustaining treatment.

Overall, the proposed legislation promotes the wishes and interests of incapacitated patients by establishing a process for determining incapacity, a priority list of those who may act as surrogate, and specific standards for surrogate decisions. The bill contains many safeguards to protect the patient's interests: a family member or someone else with a close personal relationship to the patient must decide in accord with standards based on the patient's wishes and best interests; life-sustaining treatment can only be discontinued if it is an excessive burden to the patient and specified medical criteria are satisfied; anyone on the list of potential surrogates can challenge the decision triggering further review within the facility; and, decisions that t are especially sensitive must be reviewed routinely by a multidisciplinary committee.

The New York State Task Force on Life and the Law concluded that decisions about life-sustaining treatment are best made in the context of the family or other personal relationships; with appropriate safeguards. This is what most people would want and choose for them- selves. It also recognizes the importance of family and other close relationships at a time of illness. These individuals are most likely to know the patient's own views about treatment, including the patient's religious and moral beliefs. They are also most likely to be dedicated to the patient's well being, For patients who have no natural surrogates and are therefore most vulnerable, the proposed legislation will facilitate access to needed treatment and fulfill society's obligation to ensure that timely, responsible decisions are made on their behalf.

The bill also integrates policies set forth in Article 29-CC with Article 29-B on orders not to resuscitate. This is necessary because Article 29-CC covers all treatment decisions, including decisions about cardiopulmonary resuscitation in hospitals. Two separate laws, one for resuscitation decisions and one for other treatments would be confusing and hard to implement for patients, for surrogates and for health care providers.

The policies set forth in Article 29-CC build on the policies and experience gained with Article 29-B. Article 29-B will continue to apply to decisions about cardiopulmonary resuscitation in mental hygiene facilities because those facilities are not covered by Article 29-CC. The policies on non-hospital orders not to resuscitate that will be reenact ed by the bill are essential to protect the wishes and well being of terminally ill patients who are cared for at home and in other community settings.

LEGISLATIVE HISTORY: 1994: A7166-B - advanced to 3rd reading 1996: A6791 - reported to Rules Committee; 1995: A6791 - advanced to 3rd reading 1998: A7026 - reported to Rules Committee; 1997: A7026 - reported to Codes Committee 1999 and 2000: reported to Rules Committee 2001: A5523 - advanced to 3rd reading; 2002: A5523-A - referred to Health Committee 2003: A6315 - referred to Health Committee; 2004: A6315-A - reported to Codes Committee 2005: A5406 - reported to Codes Committee; 2006: A5406-B - passed Assembly 2007: A6993 - reported to Codes Committee; 2008: A6993-A - reported to Rules Committee

BUDGET IMPLICATIONS: The bill will have no appreciable budgetary impact.

EFFECTIVE DATE: Immediately; provided that sections 1 - 25 of the act shall take effect on the first day of the June after enactment, and provided further that effective immediately it shall be lawful for a hospital, as defined in the act, to adopt a policy that is consistent with the requirements of the act, and for a health care provider to accept and carry out a health care decision in accordance with such requirements for a patient in a hospital that has adopted such policy.


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STATE OF NEW YORK ________________________________________________________________________ 7729--D 2009-2010 Regular Sessions IN ASSEMBLY April 22, 2009 ___________
Introduced by M. of A. GOTTFRIED, SCHIMMINGER, BACALLES, BARRON, BOYLAND, BRENNAN, CAHILL, CASTRO, DelMONTE, DINOWITZ, FINCH, GABRYS- ZAK, GALEF, GUNTHER, JAFFEE, KELLNER, KOON, LANCMAN, V. LOPEZ, MAGNAR- ELLI, PEOPLES-STOKES, SPANO, STIRPE, TOWNS, SCHROEDER, BRODSKY, HOYT, PERRY, CONTE, CHRISTENSEN -- Multi-Sponsored by -- M. of A. ABBATE, ALESSI, AUBRY, BENEDETTO, BING, BURLING, CALHOUN, CLARK, COOK, CROUCH, CYMBROWITZ, DESTITO, DUPREY, ENGLEBRIGHT, FIELDS, GANTT, GIANARIS, GIGLIO, GLICK, HIKIND, HOOPER, JACOBS, JOHN, LATIMER, LAVINE, LIFTON, LUPARDO, MAGEE, MAISEL, MARKEY, MAYERSOHN, McDONOUGH, McENENY, MENG, MILLMAN, MOLINARO, MORELLE, NOLAN, O'DONNELL, ORTIZ, PAULIN, PHEFFER, PRETLOW, REILLY, N. RIVERA, P. RIVERA, ROBINSON, ROSENTHAL, SCARBOR- OUGH, SCHIMEL, SKARTADOS, SWEENEY, THIELE, TITONE, WEINSTEIN, WEISEN- BERG, WRIGHT, ZEBROWSKI -- read once and referred to the Committee on Health -- reported and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amend- ments, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Health in accordance with Assembly Rule 3, sec. 2 -- reported and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the public health law, the mental hygiene law and the surrogate's court procedure act, in relation to establishing proce- dures for making medical treatment decisions on behalf of persons who lack the capacity to decide about treatment for themselves; directing the New York state task force on life and law to form a special advi- sory committee to consider the procedures and practices for withhold- ing or withdrawal of life sustaining treatment for patients with mental illness or mental retardation and developmental disabilities; and to repeal certain provisions of the public health law and the mental hygiene law relating thereto EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05935-16-0 A. 7729--D 2 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative intent. Under article 29-C of the public health law, competent adults have a powerful way to control their medical treatment even after they lose decision-making capacity, by appointing someone they trust to decide on their behalf. This legislation fills a gap that remains in New York law. It adds, inter alia, a new article 29-CC to the public health law, which establishes a decision-making process, applicable to decisions in general hospitals and nursing homes, whereby a surrogate is selected and empowered to make health care deci- sions for patients who lack capacity to make their own health care deci- sions and who have not otherwise appointed an agent to make health care decisions pursuant to article 29-C of the public health law or provided clear and convincing evidence of their treatment wishes. The legislature does not intend to encourage or discourage any partic- ular health care decision or treatment, or to create or expand a substantive right of competent adults to decide about treatment for themselves, or to impair the right of patients to object to treatment under applicable law including court decisions. Further, the legislature does not intend to authorize a surrogate to deny to the patient personal services that every patient would generally receive, such as appropriate food, water, bed rest, room temperature and hygiene. This legislation establishes a procedure to facilitate responsible decision-making by surrogates on behalf of patients who do not have capacity to make their own health care decisions. This legislation affirms existing laws and policies that limit indi- vidual conduct of patients with or without capacity, including those laws and policies against homicide, suicide, assisted suicide and mercy killing. S 2. The public health law is amended by adding two new articles 29-CC and 29-CCC to read as follows: ARTICLE 29-CC FAMILY HEALTH CARE DECISIONS ACT SECTION 2994-A. DEFINITIONS. 2994-B. APPLICABILITY; PRIORITY OF CERTAIN OTHER SURROGATE DECI- SION-MAKING LAWS AND REGULATIONS. 2994-C. DETERMINATION OF INCAPACITY. 2994-D. HEALTH CARE DECISIONS FOR ADULT PATIENTS BY SURROGATES. 2994-E. DECISIONS ABOUT LIFE-SUSTAINING TREATMENT FOR MINOR PATIENTS. 2994-F. OBLIGATIONS OF ATTENDING PHYSICIAN. 2994-G. HEALTH CARE DECISIONS FOR ADULT PATIENTS WITHOUT SURRO- GATES. 2994-I. SPECIFIC POLICIES FOR ORDERS NOT TO RESUSCITATE. 2994-J. REVOCATION OF CONSENT. 2994-K. IMPLEMENTATION AND REVIEW OF DECISIONS. 2994-L. INTERINSTITUTIONAL TRANSFERS. 2994-M. ETHICS REVIEW COMMITTEES. 2994-N. CONSCIENCE OBJECTIONS. 2994-O. IMMUNITY. 2994-P. LIABILITY FOR HEALTH CARE COSTS. 2994-Q. EFFECT ON OTHER RIGHTS. 2994-R. SPECIAL PROCEEDING AUTHORIZED; COURT ORDERS; HEALTH CARE GUARDIAN FOR MINOR PATIENT. 2994-S. REMEDY.
2994-T. REGULATIONS. 2994-U. RIGHTS TO BE PUBLICIZED. S 2994-A. DEFINITIONS. THE FOLLOWING WORDS OR PHRASES, USED IN THIS ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS, UNLESS THE CONTEXT OTHERWISE REQUIRES: 1. "ADULT" MEANS ANY PERSON WHO IS EIGHTEEN YEARS OF AGE OR OLDER OR HAS MARRIED. 2. "ATTENDING PHYSICIAN" MEANS A PHYSICIAN, SELECTED BY OR ASSIGNED TO A PATIENT PURSUANT TO HOSPITAL POLICY, WHO HAS PRIMARY RESPONSIBILITY FOR THE TREATMENT AND CARE OF THE PATIENT. WHERE MORE THAN ONE PHYSICIAN SHARES SUCH RESPONSIBILITY, OR WHERE A PHYSICIAN IS ACTING ON THE ATTENDING PHYSICIAN'S BEHALF, ANY SUCH PHYSICIAN MAY ACT AS AN ATTENDING PHYSICIAN PURSUANT TO THIS ARTICLE. 3. "CARDIOPULMONARY RESUSCITATION" MEANS MEASURES, AS SPECIFIED IN REGULATIONS PROMULGATED BY THE COMMISSIONER, TO RESTORE CARDIAC FUNCTION OR TO SUPPORT VENTILATION IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST. CARDIOPULMONARY RESUSCITATION SHALL NOT INCLUDE MEASURES TO IMPROVE VENTILATION AND CARDIAC FUNCTION IN THE ABSENCE OF AN ARREST. 4. "CLOSE FRIEND" MEANS ANY PERSON, EIGHTEEN YEARS OF AGE OR OLDER, WHO IS A CLOSE FRIEND OF THE PATIENT, OR A RELATIVE OF THE PATIENT (OTHER THAN A SPOUSE, ADULT CHILD, PARENT, BROTHER OR SISTER), WHO HAS MAINTAINED SUCH REGULAR CONTACT WITH THE PATIENT AS TO BE FAMILIAR WITH THE PATIENT'S ACTIVITIES, HEALTH, AND RELIGIOUS OR MORAL BELIEFS, AND WHO PRESENTS A SIGNED STATEMENT TO THAT EFFECT TO THE ATTENDING PHYSI- CIAN. 5. "DECISION-MAKING CAPACITY" MEANS THE ABILITY TO UNDERSTAND AND APPRECIATE THE NATURE AND CONSEQUENCES OF PROPOSED HEALTH CARE, INCLUD- ING THE BENEFITS AND RISKS OF AND ALTERNATIVES TO PROPOSED HEALTH CARE, AND TO REACH AN INFORMED DECISION. 6. "DEVELOPMENTAL DISABILITY" MEANS A DEVELOPMENTAL DISABILITY AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW. 7. "DOMESTIC PARTNER" MEANS A PERSON WHO, WITH RESPECT TO ANOTHER PERSON: (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION- SHIP WITH THE OTHER PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE UNITED STATES OR OF ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGIS- TERED AS THE DOMESTIC PARTNER OF THE OTHER PERSON WITH ANY REGISTRY MAINTAINED BY THE EMPLOYER OF EITHER PARTY OR ANY STATE, MUNICIPALITY, OR FOREIGN JURISDICTION; OR (B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR COVERED PERSON UNDER THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR (C) IS DEPENDENT OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING A MUTUAL INTENT TO BE DOMESTIC PARTNERS INCLUDING BUT NOT LIMITED TO: COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL PROPERTY; COMMON HOUSEHOLDING, SHARED INCOME OR SHARED EXPENSES; CHILDREN IN COMMON; SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A) OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE PERSONAL RELATIONSHIP OF THE PERSONS. EACH PARTY TO A DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE DOMESTIC PARTNER OF THE OTHER PARTY. "DOMESTIC PARTNER" SHALL NOT INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMES- TIC PARTNER" ALSO SHALL NOT INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR WHO IS
RELATED BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON. 8. "EMANCIPATED MINOR PATIENT" MEANS A MINOR PATIENT WHO IS THE PARENT OF A CHILD, OR WHO IS SIXTEEN YEARS OF AGE OR OLDER AND LIVING INDEPEND- ENTLY FROM HIS OR HER PARENTS OR GUARDIAN. 9. "ETHICS REVIEW COMMITTEE" MEANS THE INTERDISCIPLINARY COMMITTEE ESTABLISHED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-M OF THIS ARTICLE. 10. "GENERAL HOSPITAL" MEANS A GENERAL HOSPITAL AS DEFINED IN SUBDIVI- SION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER EXCLUDING A WARD, WING, UNIT OR OTHER PART OF A GENERAL HOSPITAL OPERATED FOR THE PURPOSE OF PROVIDING SERVICES FOR PERSONS WITH MENTAL ILLNESS PURSUANT TO AN OPERATING CERTIFICATE ISSUED BY THE COMMISSIONER OF MENTAL HEALTH. 11. "GUARDIAN OF A MINOR" OR "GUARDIAN" MEANS A HEALTH CARE GUARDIAN OR A LEGAL GUARDIAN OF THE PERSON OF A MINOR. 12. "HEALTH CARE" MEANS ANY TREATMENT, SERVICE, OR PROCEDURE TO DIAG- NOSE OR TREAT AN INDIVIDUAL'S PHYSICAL OR MENTAL CONDITION. PROVIDING NUTRITION OR HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS NOT HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE. 13. "HEALTH CARE AGENT" MEANS A HEALTH CARE AGENT DESIGNATED BY AN ADULT PURSUANT TO ARTICLE TWENTY-NINE-C OF THIS CHAPTER. 14. "HEALTH CARE DECISION" MEANS ANY DECISION TO CONSENT OR REFUSE TO CONSENT TO HEALTH CARE. 15. "HEALTH CARE GUARDIAN" MEANS AN INDIVIDUAL APPOINTED BY A COURT, PURSUANT TO SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-R OF THIS ARTICLE, AS THE GUARDIAN OF A MINOR PATIENT SOLELY FOR THE PURPOSE OF DECIDING ABOUT LIFE-SUSTAINING TREATMENT PURSUANT TO THIS ARTICLE. 16. "HEALTH CARE PROVIDER" MEANS AN INDIVIDUAL OR FACILITY LICENSED, CERTIFIED, OR OTHERWISE AUTHORIZED OR PERMITTED BY LAW TO ADMINISTER HEALTH CARE IN THE ORDINARY COURSE OF BUSINESS OR PROFESSIONAL PRACTICE. 17. "HEALTH OR SOCIAL SERVICE PRACTITIONER" MEANS A REGISTERED PROFES- SIONAL NURSE, NURSE PRACTITIONER, PHYSICIAN, PHYSICIAN ASSISTANT, PSYCHOLOGIST OR LICENSED CLINICAL SOCIAL WORKER, LICENSED OR CERTIFIED PURSUANT TO THE EDUCATION LAW ACTING WITHIN HIS OR HER SCOPE OF PRAC- TICE. 18. "HOSPITAL" MEANS A GENERAL HOSPITAL OR A RESIDENTIAL HEALTH CARE FACILITY. 19. "LIFE-SUSTAINING TREATMENT" MEANS ANY MEDICAL TREATMENT OR PROCE- DURE WITHOUT WHICH THE PATIENT WILL DIE WITHIN A RELATIVELY SHORT TIME, AS DETERMINED BY AN ATTENDING PHYSICIAN TO A REASONABLE DEGREE OF MEDICAL CERTAINTY. FOR THE PURPOSE OF THIS ARTICLE, CARDIOPULMONARY RESUSCITATION IS PRESUMED TO BE LIFE-SUSTAINING TREATMENT WITHOUT THE NECESSITY OF A DETERMINATION BY AN ATTENDING PHYSICIAN. 20. "MENTAL HYGIENE FACILITY" MEANS A FACILITY OPERATED OR LICENSED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES AS DEFINED IN SUBDIVISION SIX OF SECTION 1.03 OF THE MENTAL HYGIENE LAW. 21. "MENTAL ILLNESS" MEANS A MENTAL ILLNESS AS DEFINED IN SUBDIVISION TWENTY OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, AND DOES NOT INCLUDE DEMENTIA, SUCH AS ALZHEIMER'S DISEASE, OR OTHER DISORDERS RELATED TO DEMENTIA. 22. "MINOR" MEANS ANY PERSON WHO IS NOT AN ADULT. 23. "ORDER NOT TO RESUSCITATE" MEANS AN ORDER NOT TO ATTEMPT CARDIOP- ULMONARY RESUSCITATION IN THE EVENT A PATIENT SUFFERS CARDIAC OR RESPIR- ATORY ARREST.
24. "PARENT", FOR THE PURPOSE OF A HEALTH CARE DECISION ABOUT A MINOR PATIENT, MEANS A PARENT WHO HAS CUSTODY OF, OR WHO HAS MAINTAINED SUBSTANTIAL AND CONTINUOUS CONTACT WITH, THE MINOR PATIENT. 25. "PATIENT" MEANS A PERSON ADMITTED TO A HOSPITAL. 26. "PERSON CONNECTED WITH THE CASE" MEANS THE PATIENT, ANY PERSON ON THE SURROGATE LIST, A PARENT OR GUARDIAN OF A MINOR PATIENT, THE HOSPI- TAL ADMINISTRATOR, AN ATTENDING PHYSICIAN, ANY OTHER HEALTH OR SOCIAL SERVICES PRACTITIONER WHO IS OR HAS BEEN DIRECTLY INVOLVED IN THE PATIENT'S CARE, AND ANY DULY AUTHORIZED STATE AGENCY, INCLUDING THE FACILITY DIRECTOR OR REGIONAL DIRECTOR FOR A PATIENT TRANSFERRED FROM A MENTAL HYGIENE FACILITY AND THE FACILITY DIRECTOR FOR A PATIENT TRANS- FERRED FROM A CORRECTIONAL FACILITY. 27. "REASONABLY AVAILABLE" MEANS THAT A PERSON TO BE CONTACTED CAN BE CONTACTED WITH DILIGENT EFFORTS BY AN ATTENDING PHYSICIAN, ANOTHER PERSON ACTING ON BEHALF OF AN ATTENDING PHYSICIAN, OR THE HOSPITAL. 28. "RESIDENTIAL HEALTH CARE FACILITY" MEANS A RESIDENTIAL HEALTH CARE FACILITY AS DEFINED IN SUBDIVISION THREE OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER. 29. "SURROGATE" MEANS THE PERSON SELECTED TO MAKE A HEALTH CARE DECI- SION ON BEHALF OF A PATIENT PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE. 30. "SURROGATE LIST" MEANS THE LIST SET FORTH IN SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE. S 2994-B. APPLICABILITY; PRIORITY OF CERTAIN OTHER SURROGATE DECI- SION-MAKING LAWS AND REGULATIONS. 1. THIS ARTICLE SHALL APPLY TO HEALTH CARE DECISIONS REGARDING HEALTH CARE PROVIDED IN A HOSPITAL TO A PATIENT WHO LACKS DECISION-MAKING CAPACITY, EXCEPT AS LIMITED BY THIS SECTION. 2. PRIOR TO SEEKING OR RELYING UPON A HEALTH CARE DECISION BY A SURRO- GATE FOR A PATIENT UNDER THIS ARTICLE, THE ATTENDING PHYSICIAN SHALL MAKE REASONABLE EFFORTS TO DETERMINE WHETHER THE PATIENT HAS A HEALTH CARE AGENT APPOINTED PURSUANT TO ARTICLE TWENTY-NINE-C OF THIS CHAPTER. IF SO, HEALTH CARE DECISIONS FOR THE PATIENT SHALL BE GOVERNED BY SUCH ARTICLE, AND SHALL HAVE PRIORITY OVER DECISIONS BY ANY OTHER PERSON EXCEPT THE PATIENT OR AS OTHERWISE PROVIDED IN THE HEALTH CARE PROXY. 3. PRIOR TO SEEKING OR RELYING UPON A HEALTH CARE DECISION BY A SURRO- GATE FOR A PATIENT UNDER THIS ARTICLE, IF THE ATTENDING PHYSICIAN HAS REASON TO BELIEVE THAT THE PATIENT HAS A HISTORY OF RECEIVING SERVICES FOR MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY; IT REASONABLY APPEARS TO THE ATTENDING PHYSICIAN THAT THE PATIENT HAS MENTAL RETARDA- TION OR A DEVELOPMENTAL DISABILITY; OR THE ATTENDING PHYSICIAN HAS REASON TO BELIEVE THAT THE PATIENT HAS BEEN TRANSFERRED FROM A MENTAL HYGIENE FACILITY OPERATED OR LICENSED BY THE OFFICE OF MENTAL HEALTH, THEN SUCH PHYSICIAN SHALL MAKE REASONABLE EFFORTS TO DETERMINE WHETHER PARAGRAPHS (A), (B) OR (C) OF THIS SUBDIVISION ARE APPLICABLE: (A) IF THE PATIENT HAS A GUARDIAN APPOINTED BY A COURT PURSUANT TO ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT, HEALTH CARE DECISIONS FOR THE PATIENT SHALL BE GOVERNED BY SECTION SEVENTEEN HUNDRED FIFTY-B OF THE SURROGATE'S COURT PROCEEDURE ACT AND NOT BY THIS ARTICLE. (B) IF A PATIENT DOES NOT HAVE A GUARDIAN APPOINTED BY A COURT PURSU- ANT TO ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT BUT FALLS WITHIN THE CLASS OF PERSONS DESCRIBED IN PARAGRAPH (A) OF SUBDIVI- SION ONE OF SECTION SEVENTEEN HUNDRED FIFTY-B OF SUCH ACT, DECISIONS TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT FOR THE PATIENT SHALL BE GOVERNED BY SECTION SEVENTEEN HUNDRED FIFTY-B OF THE SURROGATE'S COURT PROCEDURE ACT AND NOT BY THIS ARTICLE.
(C) IF A HEALTH CARE DECISION FOR A PATIENT CANNOT BE MADE UNDER PARA- GRAPHS (A) OR (B) OF THIS SUBDIVISION, BUT CONSENT FOR THE DECISION MAY BE PROVIDED PURSUANT TO THE MENTAL HYGIENE LAW OR REGULATIONS OF THE OFFICE OF MENTAL HEALTH OR THE OFFICE OF MENTAL RETARDATION AND DEVELOP- MENTAL DISABILITIES, THEN THE DECISION SHALL BE GOVERNED BY SUCH STATUTE OR REGULATIONS AND NOT BY THIS ARTICLE. 4. IF, AFTER REASONABLE EFFORTS, IT IS DETERMINED THAT A HEALTH CARE DECISION FOR THE PATIENT CANNOT BE MADE PURSUANT TO SUBDIVISION TWO OR THREE OF THIS SECTION, THEN THE HEALTH CARE DECISION SHALL BE MADE PURSUANT TO THIS ARTICLE. S 2994-C. DETERMINATION OF INCAPACITY. 1. PRESUMPTION OF CAPACITY. FOR PURPOSES OF THIS ARTICLE, EVERY ADULT SHALL BE PRESUMED TO HAVE DECI- SION-MAKING CAPACITY UNLESS DETERMINED OTHERWISE PURSUANT TO THIS SECTION OR PURSUANT TO COURT ORDER, OR UNLESS A GUARDIAN IS AUTHORIZED TO DECIDE ABOUT HEALTH CARE FOR THE ADULT PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW. 2. INITIAL DETERMINATION BY ATTENDING PHYSICIAN. AN ATTENDING PHYSI- CIAN SHALL MAKE AN INITIAL DETERMINATION THAT AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY TO A REASONABLE DEGREE OF MEDICAL CERTAINTY. SUCH DETERMINATION SHALL INCLUDE AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE PATIENT'S INCAPACITY AND THE LIKELIHOOD THAT THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY. 3. CONCURRING DETERMINATIONS. (A) AN INITIAL DETERMINATION THAT A PATIENT LACKS DECISION-MAKING CAPACITY SHALL BE SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE, WHERE REQUIRED BY THIS SUBDIVISION. A CONCURRING DETERMINATION SHALL INCLUDE AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE PATIENT'S INCAPACITY AND THE LIKELIHOOD THAT THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY, AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. HOSPITALS SHALL ADOPT WRITTEN POLICIES IDENTI- FYING THE TRAINING AND CREDENTIALS OF HEALTH OR SOCIAL SERVICES PRACTI- TIONERS QUALIFIED TO PROVIDE CONCURRING DETERMINATIONS OF INCAPACITY. (B) (I) IN A RESIDENTIAL HEALTH CARE FACILITY, A HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED BY OR OTHERWISE FORMALLY AFFILIATED WITH THE FACILITY MUST INDEPENDENTLY DETERMINE WHETHER AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY. (II) IN A GENERAL HOSPITAL A HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED BY OR OTHERWISE FORMALLY AFFILIATED WITH THE FACILITY MUST INDEPENDENTLY DETERMINE WHETHER AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY IF THE SURROGATE'S DECISION CONCERNS THE WITHDRAWAL OR WITH- HOLDING OF LIFE-SUSTAINING TREATMENT. (C) (I) IF THE ATTENDING PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT LACKS DECISION-MAKING CAPACITY BECAUSE OF MENTAL ILLNESS, EITHER SUCH PHYSICIAN MUST HAVE THE FOLLOWING QUALIFICATIONS, OR ANOTHER PHYSICIAN WITH THE FOLLOWING QUALIFICATIONS MUST INDEPENDENTLY DETERMINE WHETHER THE PATIENT LACKS DECISION-MAKING CAPACITY: A PHYSICIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE OR ELIGIBLE TO BE CERTIFIED BY THE AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY OR WHO IS CERTIFIED BY THE AMERICAN OSTEOPATHIC BOARD OF NEUROLOGY AND PSYCHIA- TRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD. A RECORD OF SUCH CONSULTATION SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. (II) IF THE ATTENDING PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT LACKS DECISION-MAKING CAPACITY BECAUSE OF MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY, EITHER SUCH PHYSICIAN MUST HAVE THE FOLLOW- ING QUALIFICATIONS, OR ANOTHER PROFESSIONAL WITH THE FOLLOWING QUALI- FICATIONS MUST INDEPENDENTLY DETERMINE WHETHER THE PATIENT LACKS DECI- SION-MAKING CAPACITY: A PHYSICIAN OR CLINICAL PSYCHOLOGIST WHO EITHER IS
EMPLOYED BY A SCHOOL NAMED IN SECTION 13.17 OF THE MENTAL HYGIENE LAW, OR WHO HAS BEEN EMPLOYED FOR A MINIMUM OF TWO YEARS TO RENDER CARE AND SERVICE IN A FACILITY OPERATED OR LICENSED BY THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, OR WHO HAS BEEN APPROVED BY THE COMMISSIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES IN ACCORDANCE WITH REGULATIONS PROMULGATED BY SUCH COMMISSIONER. SUCH REGU- LATIONS SHALL REQUIRE THAT A PHYSICIAN OR CLINICAL PSYCHOLOGIST POSSESS SPECIALIZED TRAINING OR THREE YEARS EXPERIENCE IN TREATING DEVELOPMENTAL DISABILITIES. A RECORD OF SUCH CONSULTATION SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. (D) IF AN ATTENDING PHYSICIAN HAS DETERMINED THAT THE PATIENT LACKS DECISION-MAKING CAPACITY AND IF THE HEALTH OR SOCIAL SERVICES PRACTI- TIONER CONSULTED FOR A CONCURRING DETERMINATION DISAGREES WITH THE ATTENDING PHYSICIAN'S DETERMINATION, THE MATTER SHALL BE REFERRED TO THE ETHICS REVIEW COMMITTEE IF IT CANNOT OTHERWISE BE RESOLVED. 4. INFORMING THE PATIENT AND SURROGATE. NOTICE OF A DETERMINATION THAT A SURROGATE WILL MAKE HEALTH CARE DECISIONS BECAUSE THE ADULT PATIENT HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACITY SHALL PROMPTLY BE GIVEN: (A) TO THE PATIENT, WHERE THERE IS ANY INDICATION OF THE PATIENT'S ABILITY TO COMPREHEND THE INFORMATION; (B) TO AT LEAST ONE PERSON ON THE SURROGATE LIST HIGHEST IN ORDER OF PRIORITY LISTED WHEN PERSONS IN PRIOR CLASSES ARE NOT REASONABLY AVAIL- ABLE PURSUANT TO SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED NINETY- FOUR-D OF THIS ARTICLE; (C) IF THE PATIENT WAS TRANSFERRED FROM A MENTAL HYGIENE FACILITY, TO THE DIRECTOR OF THE MENTAL HYGIENE FACILITY AND TO THE MENTAL HYGIENE LEGAL SERVICE UNDER ARTICLE FORTY-SEVEN OF THE MENTAL HYGIENE LAW. 5. LIMITED PURPOSE OF DETERMINATION. A DETERMINATION MADE PURSUANT TO THIS SECTION THAT AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY SHALL NOT BE CONSTRUED AS A FINDING THAT THE PATIENT LACKS CAPACITY FOR ANY OTHER PURPOSE. 6. PRIORITY OF PATIENT'S DECISION. NOTWITHSTANDING A DETERMINATION PURSUANT TO THIS SECTION THAT AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY, IF THE PATIENT OBJECTS TO THE DETERMINATION OF INCAPACITY, OR TO THE CHOICE OF A SURROGATE OR TO A HEALTH CARE DECISION MADE BY A SURROGATE OR MADE PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-G OF THIS ARTICLE, THE PATIENT'S OBJECTION OR DECISION SHALL PREVAIL UNLESS: (A) A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT THE PATIENT LACKS DECISION-MAKING CAPACITY OR THE PATIENT IS OR HAS BEEN ADJUDGED INCOMPETENT FOR ALL PURPOSES AND, IN THE CASE OF A PATIENT'S OBJECTION TO TREATMENT, MAKES ANY OTHER FINDING REQUIRED BY LAW TO AUTHORIZE THE TREATMENT, OR (B) ANOTHER LEGAL BASIS EXISTS FOR OVERRID- ING THE PATIENT'S DECISION. 7. CONFIRMATION OF CONTINUED LACK OF DECISION-MAKING CAPACITY. AN ATTENDING PHYSICIAN SHALL CONFIRM THE ADULT PATIENT'S CONTINUED LACK OF DECISION-MAKING CAPACITY BEFORE COMPLYING WITH HEALTH CARE DECISIONS MADE PURSUANT TO THIS ARTICLE, OTHER THAN THOSE DECISIONS MADE AT OR ABOUT THE TIME OF THE INITIAL DETERMINATION. A CONCURRING DETERMINATION OF THE PATIENT'S CONTINUED LACK OF DECISION-MAKING CAPACITY SHALL BE REQUIRED IF THE SUBSEQUENT HEALTH CARE DECISION CONCERNS THE WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT. HEALTH CARE PROVIDERS SHALL NOT BE REQUIRED TO INFORM THE PATIENT OR SURROGATE OF THE CONFIRMATION. S 2994-D. HEALTH CARE DECISIONS FOR ADULT PATIENTS BY SURROGATES. 1. IDENTIFYING THE SURROGATE. ONE PERSON FROM THE FOLLOWING LIST FROM THE CLASS HIGHEST IN PRIORITY WHEN PERSONS IN PRIOR CLASSES ARE NOT REASON-
ABLY AVAILABLE, WILLING, AND COMPETENT TO ACT, SHALL BE THE SURROGATE FOR AN ADULT PATIENT WHO LACKS DECISION-MAKING CAPACITY. HOWEVER, SUCH PERSON MAY DESIGNATE ANY OTHER PERSON ON THE LIST TO BE SURROGATE, PROVIDED NO ONE IN A CLASS HIGHER IN PRIORITY THAN THE PERSON DESIGNATED OBJECTS: (A) A GUARDIAN AUTHORIZED TO DECIDE ABOUT HEALTH CARE PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW; (B) THE SPOUSE, IF NOT LEGALLY SEPARATED FROM THE PATIENT, OR THE DOMESTIC PARTNER; (C) A SON OR DAUGHTER EIGHTEEN YEARS OF AGE OR OLDER; (D) A PARENT; (E) A BROTHER OR SISTER EIGHTEEN YEARS OF AGE OR OLDER; (F) A CLOSE FRIEND. 2. RESTRICTIONS ON WHO MAY BE A SURROGATE. AN OPERATOR, ADMINISTRATOR, OR EMPLOYEE OF A HOSPITAL OR A MENTAL HYGIENE FACILITY FROM WHICH THE PATIENT WAS TRANSFERRED, OR A PHYSICIAN WHO HAS PRIVILEGES AT THE HOSPI- TAL OR A HEALTH CARE PROVIDER UNDER CONTRACT WITH THE HOSPITAL MAY NOT SERVE AS THE SURROGATE FOR ANY ADULT WHO IS A PATIENT OF SUCH HOSPITAL, UNLESS SUCH INDIVIDUAL IS RELATED TO THE PATIENT BY BLOOD, MARRIAGE, DOMESTIC PARTNERSHIP, OR ADOPTION, OR IS A CLOSE FRIEND OF THE PATIENT WHOSE FRIENDSHIP WITH THE PATIENT PRECEDED THE PATIENT'S ADMISSION TO THE FACILITY. IF A PHYSICIAN SERVES AS SURROGATE, THE PHYSICIAN SHALL NOT ACT AS THE PATIENT'S ATTENDING PHYSICIAN AFTER HIS OR HER AUTHORITY AS SURROGATE BEGINS. 3. AUTHORITY AND DUTIES OF SURROGATE. (A) SCOPE OF SURROGATE'S AUTHOR- ITY. (I) SUBJECT TO THE STANDARDS AND LIMITATIONS OF THIS ARTICLE, THE SURROGATE SHALL HAVE THE AUTHORITY TO MAKE ANY AND ALL HEALTH CARE DECI- SIONS ON THE ADULT PATIENT'S BEHALF THAT THE PATIENT COULD MAKE. (II) NOTHING IN THIS ARTICLE SHALL OBLIGATE HEALTH CARE PROVIDERS TO SEEK THE CONSENT OF A SURROGATE IF AN ADULT PATIENT HAS ALREADY MADE A DECISION ABOUT THE PROPOSED HEALTH CARE, EXPRESSED ORALLY OR IN WRITING OR, WITH RESPECT TO A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT EXPRESSED EITHER ORALLY DURING HOSPITALIZATION IN THE PRESENCE OF TWO WITNESSES EIGHTEEN YEARS OF AGE OR OLDER, AT LEAST ONE OF WHOM IS A HEALTH OR SOCIAL SERVICES PRACTITIONER AFFILIATED WITH THE HOSPITAL, OR IN WRITING. IF AN ATTENDING PHYSICIAN RELIES ON THE PATIENT'S PRIOR DECISION, THE PHYSICIAN SHALL RECORD THE PRIOR DECISION IN THE PATIENT'S MEDICAL RECORD. IF A SURROGATE HAS ALREADY BEEN DESIGNATED FOR THE PATIENT, THE ATTENDING PHYSICIAN SHALL MAKE REASONABLE EFFORTS TO NOTIFY THE SURROGATE PRIOR TO IMPLEMENTING THE DECISION; PROVIDED THAT IN THE CASE OF A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE ATTENDING PHYSICIAN SHALL MAKE DILIGENT EFFORTS TO NOTIFY THE SURRO- GATE AND, IF UNABLE TO NOTIFY THE SURROGATE, SHALL DOCUMENT THE EFFORTS THAT WERE MADE TO DO SO. (B) COMMENCEMENT OF SURROGATE'S AUTHORITY. THE SURROGATE'S AUTHORITY SHALL COMMENCE UPON A DETERMINATION, MADE PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTICLE, THAT THE ADULT PATIENT LACKS DECISION-MAKING CAPACITY AND UPON IDENTIFICATION OF A SURROGATE PURSUANT TO SUBDIVISION ONE OF THIS SECTION. IN THE EVENT AN ATTENDING PHYSICIAN DETERMINES THAT THE PATIENT HAS REGAINED DECISION-MAKING CAPACITY, THE AUTHORITY OF THE SURROGATE SHALL CEASE. (C) RIGHT AND DUTY TO BE INFORMED. NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE SURROGATE SHALL HAVE THE RIGHT TO RECEIVE MEDICAL INFORMA- TION AND MEDICAL RECORDS NECESSARY TO MAKE INFORMED DECISIONS ABOUT THE PATIENT'S HEALTH CARE. HEALTH CARE PROVIDERS SHALL PROVIDE AND THE
SURROGATE SHALL SEEK INFORMATION NECESSARY TO MAKE AN INFORMED DECISION, INCLUDING INFORMATION ABOUT THE PATIENT'S DIAGNOSIS, PROGNOSIS, THE NATURE AND CONSEQUENCES OF PROPOSED HEALTH CARE, AND THE BENEFITS AND RISKS OF AND ALTERNATIVE TO PROPOSED HEALTH CARE. 4. DECISION-MAKING STANDARDS. (A) THE SURROGATE SHALL MAKE HEALTH CARE DECISIONS: (I) IN ACCORDANCE WITH THE PATIENT'S WISHES, INCLUDING THE PATIENT'S RELIGIOUS AND MORAL BELIEFS; OR (II) IF THE PATIENT'S WISHES ARE NOT REASONABLY KNOWN AND CANNOT WITH REASONABLE DILIGENCE BE ASCERTAINED, IN ACCORDANCE WITH THE PATIENT'S BEST INTERESTS. AN ASSESSMENT OF THE PATIENT'S BEST INTERESTS SHALL INCLUDE: CONSIDERATION OF THE DIGNITY AND UNIQUENESS OF EVERY PERSON; THE POSSIBILITY AND EXTENT OF PRESERVING THE PATIENT'S LIFE; THE PRESER- VATION, IMPROVEMENT OR RESTORATION OF THE PATIENT'S HEALTH OR FUNCTION- ING; THE RELIEF OF THE PATIENT'S SUFFERING; AND ANY MEDICAL CONDITION AND SUCH OTHER CONCERNS AND VALUES AS A REASONABLE PERSON IN THE PATIENT'S CIRCUMSTANCES WOULD WISH TO CONSIDER. (B) IN ALL CASES, THE SURROGATE'S ASSESSMENT OF THE PATIENT'S WISHES AND BEST INTERESTS SHALL BE PATIENT-CENTERED; HEALTH CARE DECISIONS SHALL BE MADE ON AN INDIVIDUALIZED BASIS FOR EACH PATIENT, AND SHALL BE CONSISTENT WITH THE VALUES OF THE PATIENT, INCLUDING THE PATIENT'S RELI- GIOUS AND MORAL BELIEFS, TO THE EXTENT REASONABLY POSSIBLE. 5. DECISIONS TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT. IN ADDITION TO THE STANDARDS SET FORTH IN SUBDIVISION FOUR OF THIS SECTION, DECISIONS BY SURROGATES TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREAT- MENT SHALL BE AUTHORIZED ONLY IF THE FOLLOWING CONDITIONS ARE SATISFIED, AS APPLICABLE: (A)(I) TREATMENT WOULD BE AN EXTRAORDINARY BURDEN TO THE PATIENT AND AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF ANOTHER PHYSICIAN, THAT, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY AND IN ACCORD WITH ACCEPTED MEDICAL STANDARDS, (A) THE PATIENT HAS AN ILLNESS OR INJURY WHICH CAN BE EXPECTED TO CAUSE DEATH WITHIN SIX MONTHS, WHETHER OR NOT TREATMENT IS PROVIDED; OR (B) THE PATIENT IS PERMANENTLY UNCONSCIOUS; OR (II) THE PROVISION OF TREATMENT WOULD INVOLVE SUCH PAIN, SUFFERING OR OTHER BURDEN THAT IT WOULD REASONABLY BE DEEMED INHUMANE OR EXTRAOR- DINARILY BURDENSOME UNDER THE CIRCUMSTANCES AND THE PATIENT HAS AN IRRE- VERSIBLE OR INCURABLE CONDITION, AS DETERMINED BY AN ATTENDING PHYSICIAN WITH THE INDEPENDENT CONCURRENCE OF ANOTHER PHYSICIAN TO A REASONABLE DEGREE OF MEDICAL CERTAINTY AND IN ACCORD WITH ACCEPTED MEDICAL STAND- ARDS. (B) IN A RESIDENTIAL HEALTH CARE FACILITY, A SURROGATE SHALL HAVE THE AUTHORITY TO REFUSE LIFE-SUSTAINING TREATMENT UNDER SUBPARAGRAPH (II) OF PARAGRAPH (A) OF THIS SUBDIVISION ONLY IF THE ETHICS REVIEW COMMITTEE, INCLUDING AT LEAST ONE PHYSICIAN WHO IS NOT DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE, OR A COURT OF COMPETENT JURISDICTION, REVIEWS THE DECI- SION AND DETERMINES THAT IT MEETS THE STANDARDS SET FORTH IN THIS ARTI- CLE. THIS REQUIREMENT SHALL NOT APPLY TO A DECISION TO WITHHOLD CARDIOP- ULMONARY RESUSCITATION. (C) IN A GENERAL HOSPITAL, IF THE ATTENDING PHYSICIAN OBJECTS TO A SURROGATE'S DECISION, UNDER SUBPARAGRAPH (II) OF PARAGRAPH (A) OF THIS SUBDIVISION, TO WITHDRAW OR WITHHOLD NUTRITION AND HYDRATION PROVIDED BY MEANS OF MEDICAL TREATMENT, THE DECISION SHALL NOT BE IMPLEMENTED UNTIL THE ETHICS REVIEW COMMITTEE, INCLUDING AT LEAST ONE PHYSICIAN WHO IS NOT DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE, OR A COURT OF COMPETENT JURISDICTION, REVIEWS THE DECISION AND DETERMINES THAT IT MEETS THE
STANDARDS SET FORTH IN THIS SUBDIVISION AND SUBDIVISION FOUR OF THIS SECTION. (D) PROVIDING NUTRITION AND HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS NOT HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE. (E) EXPRESSION OF DECISIONS. THE SURROGATE SHALL EXPRESS A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT EITHER ORALLY TO AN ATTENDING PHYSICIAN OR IN WRITING. S 2994-E. DECISIONS ABOUT LIFE-SUSTAINING TREATMENT FOR MINOR PATIENTS. 1. AUTHORITY OF PARENT OR GUARDIAN. THE PARENT OR GUARDIAN OF A MINOR PATIENT SHALL HAVE THE AUTHORITY TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT, INCLUDING DECISIONS TO WITHHOLD OR WITHDRAW SUCH TREATMENT, SUBJECT TO THE PROVISIONS OF THIS SECTION AND SUBDIVI- SION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE. 2. DECISION-MAKING STANDARDS AND PROCEDURES FOR MINOR PATIENT. (A) THE PARENT OR GUARDIAN OF A MINOR PATIENT SHALL MAKE DECISIONS IN ACCORDANCE WITH THE MINOR'S BEST INTERESTS, CONSISTENT WITH THE STANDARDS SET FORTH IN SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE, TAKING INTO ACCOUNT THE MINOR'S WISHES AS APPROPRIATE UNDER THE CIRCUMSTANCES. (B) AN ATTENDING PHYSICIAN, IN CONSULTATION WITH A MINOR'S PARENT OR GUARDIAN, SHALL DETERMINE WHETHER A MINOR PATIENT HAS DECISION-MAKING CAPACITY FOR A DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREAT- MENT. IF THE MINOR HAS SUCH CAPACITY, A PARENT'S OR GUARDIAN'S DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT FOR THE MINOR MAY NOT BE IMPLEMENTED WITHOUT THE MINOR'S CONSENT. (C) WHERE A PARENT OR GUARDIAN OF A MINOR PATIENT HAS MADE A DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT AND AN ATTENDING PHYSICIAN HAS REASON TO BELIEVE THAT THE MINOR PATIENT HAS A PARENT OR GUARDIAN WHO HAS NOT BEEN INFORMED OF THE DECISION, INCLUDING A NON-CUS- TODIAL PARENT OR GUARDIAN, AN ATTENDING PHYSICIAN OR SOMEONE ACTING ON HIS OR HER BEHALF, SHALL MAKE REASONABLE EFFORTS TO DETERMINE IF THE UNINFORMED PARENT OR GUARDIAN HAS MAINTAINED SUBSTANTIAL AND CONTINUOUS CONTACT WITH THE MINOR AND, IF SO, SHALL MAKE DILIGENT EFFORTS TO NOTIFY THAT PARENT OR GUARDIAN PRIOR TO IMPLEMENTING THE DECISION. 3. DECISION-MAKING STANDARDS AND PROCEDURES FOR EMANCIPATED MINOR PATIENT. (A) IF AN ATTENDING PHYSICIAN DETERMINES THAT A PATIENT IS AN EMANCIPATED MINOR PATIENT WITH DECISION-MAKING CAPACITY, THE PATIENT SHALL HAVE THE AUTHORITY TO DECIDE ABOUT LIFE-SUSTAINING TREATMENT. SUCH AUTHORITY SHALL INCLUDE A DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAIN- ING TREATMENT IF AN ATTENDING PHYSICIAN AND THE ETHICS REVIEW COMMITTEE DETERMINE THAT THE DECISION ACCORDS WITH THE STANDARDS FOR SURROGATE DECISIONS FOR ADULTS, AND THE ETHICS REVIEW COMMITTEE APPROVES THE DECI- SION. (B) IF THE HOSPITAL CAN WITH REASONABLE EFFORTS ASCERTAIN THE IDENTITY OF THE PARENTS OR GUARDIAN OF AN EMANCIPATED MINOR PATIENT, THE HOSPITAL SHALL NOTIFY SUCH PERSONS PRIOR TO WITHHOLDING OR WITHDRAWING LIFE-SUS- TAINING TREATMENT PURSUANT TO THIS SUBDIVISION. S 2994-F. OBLIGATIONS OF ATTENDING PHYSICIAN. 1. AN ATTENDING PHYSI- CIAN INFORMED OF A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT MADE PURSUANT TO THE STANDARDS OF THIS ARTICLE SHALL RECORD THE DECISION IN THE PATIENT'S MEDICAL RECORD, REVIEW THE MEDICAL BASIS FOR THE DECISION, AND SHALL EITHER: (A) IMPLEMENT THE DECISION, OR (B) PROMPTLY MAKE HIS OR HER OBJECTION TO THE DECISION AND THE REASONS FOR THE OBJECTION KNOWN TO THE DECISION-MAKER, AND EITHER MAKE ALL REASON- ABLE EFFORTS TO ARRANGE FOR THE TRANSFER OF THE PATIENT TO ANOTHER
PHYSICIAN, IF NECESSARY, OR PROMPTLY REFER THE MATTER TO THE ETHICS REVIEW COMMITTEE. 2. IF AN ATTENDING PHYSICIAN HAS ACTUAL NOTICE OF THE FOLLOWING OBJECTIONS OR DISAGREEMENTS, HE OR SHE SHALL PROMPTLY REFER THE MATTER TO THE ETHICS REVIEW COMMITTEE IF THE OBJECTION OR DISAGREEMENT CANNOT OTHERWISE BE RESOLVED: (A) A HEALTH OR SOCIAL SERVICES PRACTITIONER CONSULTED FOR A CONCUR- RING DETERMINATION THAT AN ADULT PATIENT LACKS DECISION-MAKING CAPACITY DISAGREES WITH THE ATTENDING PHYSICIAN'S DETERMINATION; OR (B) ANY PERSON ON THE SURROGATE LIST OBJECTS TO THE DESIGNATION OF THE SURROGATE PURSUANT TO SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE; OR (C) ANY PERSON ON THE SURROGATE LIST OBJECTS TO A SURROGATE'S DECI- SION; OR (D) A PARENT OR GUARDIAN OF A MINOR PATIENT OBJECTS TO THE DECISION BY ANOTHER PARENT OR GUARDIAN OF THE MINOR; OR (E) A MINOR PATIENT REFUSES LIFE-SUSTAINING TREATMENT, AND THE MINOR'S PARENT OR GUARDIAN WISHES THE TREATMENT TO BE PROVIDED, OR THE MINOR PATIENT OBJECTS TO AN ATTENDING PHYSICIAN'S DETERMINATION ABOUT DECI- SION-MAKING CAPACITY OR RECOMMENDATION ABOUT LIFE-SUSTAINING TREATMENT. 3. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION OR SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-Q OF THIS ARTICLE, IF A SURROGATE DIRECTS THE PROVISION OF LIFE-SUSTAINING TREATMENT, THE DENIAL OF WHICH IN REASONABLE MEDICAL JUDGMENT WOULD BE LIKELY TO RESULT IN THE DEATH OF THE PATIENT, A HOSPITAL OR INDIVIDUAL HEALTH CARE PROVIDER THAT DOES NOT WISH TO PROVIDE SUCH TREATMENT SHALL NONETHELESS COMPLY WITH THE SURROGATE'S DECISION PENDING EITHER TRANSFER OF THE PATIENT TO A WILLING HOSPITAL OR INDIVIDUAL HEALTH CARE PROVIDER, OR JUDICIAL REVIEW IN ACCORDANCE WITH SECTION TWENTY-NINE HUNDRED NINETY-FOUR-R OF THIS ARTICLE. S 2994-G. HEALTH CARE DECISIONS FOR ADULT PATIENTS WITHOUT SURROGATES. 1. IDENTIFYING ADULT PATIENTS WITHOUT SURROGATES. WITHIN A REASONABLE TIME AFTER ADMISSION AS AN INPATIENT TO THE HOSPITAL OF EACH ADULT PATIENT, THE HOSPITAL SHALL MAKE REASONABLE EFFORTS TO DETERMINE IF THE PATIENT HAS APPOINTED A HEALTH CARE AGENT OR HAS A GUARDIAN, OR IF AT LEAST ONE INDIVIDUAL IS AVAILABLE TO SERVE AS THE PATIENT'S SURROGATE IN THE EVENT THE PATIENT LACKS OR LOSES DECISION-MAKING CAPACITY. WITH RESPECT TO A PATIENT WHO LACKS CAPACITY, IF NO SUCH HEALTH CARE AGENT, GUARDIAN OR POTENTIAL SURROGATE IS IDENTIFIED, THE HOSPITAL SHALL IDEN- TIFY, TO THE EXTENT REASONABLY POSSIBLE, THE PATIENT'S WISHES AND PREF- ERENCES, INCLUDING THE PATIENT'S RELIGIOUS AND MORAL BELIEFS, ABOUT PENDING HEALTH CARE DECISIONS, AND SHALL RECORD ITS FINDINGS IN THE PATIENT'S MEDICAL RECORD. 2. DECISION-MAKING STANDARDS AND PROCEDURES. (A) THE PROCEDURES SPEC- IFIED IN THIS AND THE FOLLOWING SUBDIVISIONS OF THIS SECTION APPLY TO HEALTH CARE DECISIONS FOR ADULT PATIENTS WHO WOULD QUALIFY FOR SURROGATE DECISION-MAKING UNDER THIS ARTICLE BUT FOR WHOM NO SURROGATE IS REASON- ABLY AVAILABLE, WILLING OR COMPETENT TO ACT. (B) ANY HEALTH CARE DECISION MADE PURSUANT TO THIS SECTION SHALL BE MADE IN ACCORDANCE WITH THE STANDARDS SET FORTH IN SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE AND SHALL NOT BE BASED ON THE FINANCIAL INTERESTS OF THE HOSPITAL OR ANY OTHER HEALTH CARE PROVIDER. THE SPECIFIC PROCEDURES TO BE FOLLOWED DEPEND ON WHETHER THE DECISION INVOLVES ROUTINE MEDICAL TREATMENT, MAJOR MEDICAL TREAT- MENT, OR THE WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT, AND THE LOCATION WHERE THE TREATMENT IS PROVIDED.
3. ROUTINE MEDICAL TREATMENT. (A) FOR PURPOSES OF THIS SUBDIVISION, "ROUTINE MEDICAL TREATMENT" MEANS ANY TREATMENT, SERVICE, OR PROCEDURE TO DIAGNOSE OR TREAT AN INDIVIDUAL'S PHYSICAL OR MENTAL CONDITION, SUCH AS THE ADMINISTRATION OF MEDICATION, THE EXTRACTION OF BODILY FLUIDS FOR ANALYSIS, OR DENTAL CARE PERFORMED WITH A LOCAL ANESTHETIC, FOR WHICH HEALTH CARE PROVIDERS ORDINARILY DO NOT SEEK SPECIFIC CONSENT FROM THE PATIENT OR AUTHORIZED REPRESENTATIVE. IT SHALL NOT INCLUDE THE LONG-TERM PROVISION OF TREATMENT SUCH AS VENTILATOR SUPPORT OR A NASOGASTRIC TUBE BUT SHALL INCLUDE SUCH TREATMENT WHEN PROVIDED AS PART OF POST-OPERATIVE CARE OR IN RESPONSE TO AN ACUTE ILLNESS AND RECOVERY IS REASONABLY EXPECTED WITHIN ONE MONTH OR LESS. (B) AN ATTENDING PHYSICIAN SHALL BE AUTHORIZED TO DECIDE ABOUT ROUTINE MEDICAL TREATMENT FOR AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACITY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINE- TY-FOUR-C OF THIS ARTICLE. NOTHING IN THIS SUBDIVISION SHALL REQUIRE HEALTH CARE PROVIDERS TO OBTAIN SPECIFIC CONSENT FOR TREATMENT WHERE SPECIFIC CONSENT IS NOT OTHERWISE REQUIRED BY LAW. 4. MAJOR MEDICAL TREATMENT. (A) FOR PURPOSES OF THIS SUBDIVISION, "MAJOR MEDICAL TREATMENT" MEANS ANY TREATMENT, SERVICE OR PROCEDURE TO DIAGNOSE OR TREAT AN INDIVIDUAL'S PHYSICAL OR MENTAL CONDITION: (I) WHERE GENERAL ANESTHETIC IS USED; OR (II) WHICH INVOLVES ANY SIGNIFICANT RISK; OR (III) WHICH INVOLVES ANY SIGNIFICANT INVASION OF BODILY INTEG- RITY REQUIRING AN INCISION, PRODUCING SUBSTANTIAL PAIN, DISCOMFORT, DEBILITATION OR HAVING A SIGNIFICANT RECOVERY PERIOD; OR (IV) WHICH INVOLVES THE USE OF PHYSICAL RESTRAINTS, AS SPECIFIED IN REGULATIONS PROMULGATED BY THE COMMISSIONER, EXCEPT IN AN EMERGENCY; OR (V) WHICH INVOLVES THE USE OF PSYCHOACTIVE MEDICATIONS, EXCEPT WHEN PROVIDED AS PART OF POST-OPERATIVE CARE OR IN RESPONSE TO AN ACUTE ILLNESS AND TREATMENT IS REASONABLY EXPECTED TO BE ADMINISTERED OVER A PERIOD OF FORTY-EIGHT HOURS OR LESS, OR WHEN PROVIDED IN AN EMERGENCY. (B) A DECISION TO PROVIDE MAJOR MEDICAL TREATMENT, MADE IN ACCORDANCE WITH THE FOLLOWING REQUIREMENTS, SHALL BE AUTHORIZED FOR AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACITY PURSU- ANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTICLE. (I) AN ATTENDING PHYSICIAN SHALL MAKE A RECOMMENDATION IN CONSULTATION WITH HOSPITAL STAFF DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE. (II) IN A GENERAL HOSPITAL, AT LEAST ONE OTHER PHYSICIAN DESIGNATED BY THE HOSPITAL MUST INDEPENDENTLY DETERMINE THAT HE OR SHE CONCURS THAT THE RECOMMENDATION IS APPROPRIATE. (III) IN A RESIDENTIAL HEALTH CARE FACILITY THE MEDICAL DIRECTOR OF THE FACILITY, OR A PHYSICIAN DESIGNATED BY THE MEDICAL DIRECTOR, MUST INDEPENDENTLY DETERMINE THAT HE OR SHE CONCURS THAT THE RECOMMENDATION IS APPROPRIATE; PROVIDED THAT IF THE MEDICAL DIRECTOR IS THE PATIENT'S ATTENDING PHYSICIAN, A DIFFERENT PHYSICIAN DESIGNATED BY THE RESIDENTIAL HEALTH CARE FACILITY MUST MAKE THIS INDEPENDENT DETERMINATION. ANY HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED BY OR OTHERWISE FORMALLY AFFILIATED WITH THE FACILITY MAY PROVIDE A SECOND OPINION FOR DECISIONS ABOUT PHYSICAL RESTRAINTS MADE PURSUANT TO THIS SUBDIVISION. 5. DECISIONS TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT. (A) A COURT OF COMPETENT JURISDICTION MAY MAKE A DECISION TO WITHHOLD OR WITH- DRAW LIFE-SUSTAINING TREATMENT FOR AN ADULT PATIENT WHO HAS BEEN DETER- MINED TO LACK DECISION-MAKING CAPACITY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTICLE IF THE COURT FINDS THAT THE DECI- SION ACCORDS WITH STANDARDS FOR DECISIONS FOR ADULTS SET FORTH IN SUBDI- VISIONS FOUR AND FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE.
(B) IF THE ATTENDING PHYSICIAN, WITH INDEPENDENT CONCURRENCE OF A SECOND PHYSICIAN DESIGNATED BY THE HOSPITAL, DETERMINES TO A REASONABLE DEGREE OF MEDICAL CERTAINTY THAT: (I) LIFE-SUSTAINING TREATMENT OFFERS THE PATIENT NO MEDICAL BENEFIT BECAUSE THE PATIENT WILL DIE IMMINENTLY, EVEN IF THE TREATMENT IS PROVIDED; AND (II) THE PROVISION OF LIFE-SUSTAINING TREATMENT WOULD VIOLATE ACCEPTED MEDICAL STANDARDS, THEN SUCH TREATMENT MAY BE WITHDRAWN OR WITHHELD FROM AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI- TY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI- CLE, WITHOUT JUDICIAL APPROVAL. THIS PARAGRAPH SHALL NOT APPLY TO ANY TREATMENT NECESSARY TO ALLEVIATE PAIN OR DISCOMFORT. 6. PHYSICIAN OBJECTION. IF A PHYSICIAN CONSULTED FOR A CONCURRING OPINION OBJECTS TO AN ATTENDING PHYSICIAN'S RECOMMENDATION OR DETERMI- NATION MADE PURSUANT TO THIS SECTION, OR A MEMBER OF THE HOSPITAL STAFF DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE OBJECTS TO AN ATTENDING PHYSICIAN'S RECOMMENDATION ABOUT MAJOR MEDICAL TREATMENT OR TREATMENT WITHOUT MEDICAL BENEFIT, THE MATTER SHALL BE REFERRED TO THE ETHICS REVIEW COMMITTEE IF IT CANNOT BE OTHERWISE RESOLVED. S 2994-I. SPECIFIC POLICIES FOR ORDERS NOT TO RESUSCITATE. AN ORDER NOT TO RESUSCITATE SHALL BE WRITTEN IN THE PATIENT'S MEDICAL RECORD. CONSENT TO AN ORDER NOT TO RESUSCITATE SHALL NOT CONSTITUTE CONSENT TO WITHHOLD OR WITHDRAW TREATMENT OTHER THAN CARDIOPULMONARY RESUSCITATION. S 2994-J. REVOCATION OF CONSENT. 1. A PATIENT, SURROGATE, OR PARENT OR GUARDIAN OF A MINOR PATIENT MAY AT ANY TIME REVOKE HIS OR HER CONSENT TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT BY INFORMING AN ATTENDING PHYSICIAN OR A MEMBER OF THE MEDICAL OR NURSING STAFF OF THE REVOCATION. 2. AN ATTENDING PHYSICIAN INFORMED OF A REVOCATION OF CONSENT MADE PURSUANT TO THIS SECTION SHALL IMMEDIATELY: (A) RECORD THE REVOCATION IN THE PATIENT'S MEDICAL RECORD; (B) CANCEL ANY ORDERS IMPLEMENTING THE DECISION TO WITHHOLD OR WITH- DRAW TREATMENT; AND (C) NOTIFY THE HOSPITAL STAFF DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE OF THE REVOCATION AND ANY CANCELLATIONS. 3. ANY MEMBER OF THE MEDICAL OR NURSING STAFF INFORMED OF A REVOCATION MADE PURSUANT TO THIS SECTION SHALL IMMEDIATELY NOTIFY AN ATTENDING PHYSICIAN OF THE REVOCATION. S 2994-K. IMPLEMENTATION AND REVIEW OF DECISIONS. 1. HOSPITALS SHALL ADOPT WRITTEN POLICIES REQUIRING IMPLEMENTATION AND REGULAR REVIEW OF DECISIONS TO WITHHOLD OR WITHDREW LIFE-SUSTAINING TREATMENT IN ACCORD- ANCE WITH ACCEPTED MEDICAL STANDARDS. HOSPITALS SHALL ALSO DEVELOP POLI- CIES IN ACCORD WITH ACCEPTED MEDICAL STANDARDS REGARDING DOCUMENTATION OF CLINICAL DETERMINATIONS AND DECISIONS BY SURROGATES AND HEALTH CARE PROVIDERS PURSUANT TO THIS ARTICLE. 2. IF A DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT HAS BEEN MADE PURSUANT TO THIS ARTICLE, AND AN ATTENDING PHYSICIAN DETER- MINES AT ANY TIME THAT THE DECISION IS NO LONGER APPROPRIATE OR AUTHOR- IZED BECAUSE THE PATIENT HAS REGAINED DECISION-MAKING CAPACITY OR BECAUSE THE PATIENT'S CONDITION HAS OTHERWISE IMPROVED, THE PHYSICIAN SHALL IMMEDIATELY: (A) INCLUDE SUCH DETERMINATION IN THE PATIENT'S MEDICAL RECORD; (B) CANCEL ANY ORDERS OR PLANS OF CARE IMPLEMENTING THE DECISION TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT; (C) NOTIFY THE PERSON WHO MADE THE DECISION TO WITHHOLD OR WITHDRAW TREATMENT, OR, IF THAT PERSON IS NOT REASONABLY AVAILABLE, TO AT LEAST ONE PERSON ON THE SURROGATE LIST HIGHEST IN ORDER OF PRIORITY LISTED
WHEN PERSONS IN PRIOR CLASSES ARE NOT REASONABLY AVAILABLE PURSUANT TO SUBDIVISION ONE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE; AND (D) NOTIFY THE HOSPITAL STAFF DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE OF ANY CANCELLED ORDERS OR PLANS OF CARE. S 2994-L. INTERINSTITUTIONAL TRANSFERS. IF A PATIENT WITH AN ORDER TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT IS TRANSFERRED FROM A MENTAL HYGIENE FACILITY TO A HOSPITAL OR FROM A HOSPITAL TO A DIFFERENT HOSPITAL, ANY SUCH ORDER OR PLAN SHALL REMAIN EFFECTIVE UNTIL AN ATTEND- ING PHYSICIAN FIRST EXAMINES THE TRANSFERRED PATIENT, WHEREUPON AN ATTENDING PHYSICIAN MUST EITHER: 1. ISSUE APPROPRIATE ORDERS TO CONTINUE THE PRIOR ORDER OR PLAN. SUCH ORDERS MAY BE ISSUED WITHOUT OBTAINING ANOTHER CONSENT TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT PURSUANT TO THIS ARTICLE; OR 2. CANCEL SUCH ORDER, IF THE ATTENDING PHYSICIAN DETERMINES THAT THE ORDER IS NO LONGER APPROPRIATE OR AUTHORIZED. BEFORE CANCELING THE ORDER THE ATTENDING PHYSICIAN SHALL MAKE REASONABLE EFFORTS TO NOTIFY THE PERSON WHO MADE THE DECISION TO WITHHOLD OR WITHDRAW TREATMENT AND THE HOSPITAL STAFF DIRECTLY RESPONSIBLE FOR THE PATIENT'S CARE OF ANY SUCH CANCELLATION. IF SUCH NOTICE CANNOT REASONABLY BE MADE PRIOR TO CANCEL- ING THE ORDER OR PLAN, THE ATTENDING PHYSICIAN SHALL MAKE SUCH NOTICE AS SOON AS REASONABLY PRACTICABLE AFTER CANCELLATION. S 2994-M. ETHICS REVIEW COMMITTEES. 1. ESTABLISHMENT OF AN ETHICS REVIEW COMMITTEE, WRITTEN POLICY. EACH HOSPITAL SHALL ESTABLISH AT LEAST ONE ETHICS REVIEW COMMITTEE OR PARTICIPATE IN AN ETHICS REVIEW COMMITTEE THAT SERVES MORE THAN ONE HOSPITAL, AND SHALL ADOPT A WRITTEN POLICY GOVERNING COMMITTEE FUNCTIONS, COMPOSITION, AND PROCEDURE, IN ACCORDANCE WITH THE REQUIREMENTS OF THIS ARTICLE. A HOSPITAL MAY DESIGNATE AN EXISTING COMMITTEE, OR SUBCOMMITTEE THEREOF, TO CARRY OUT THE FUNCTIONS OF THE ETHICS REVIEW COMMITTEE PROVIDED THE REQUIREMENTS OF THIS SECTION ARE SATISFIED. 2. FUNCTIONS OF THE ETHICS REVIEW COMMITTEE. (A) THE ETHICS REVIEW COMMITTEE SHALL CONSIDER AND RESPOND TO ANY HEALTH CARE MATTER PRESENTED TO IT BY A PERSON CONNECTED WITH THE CASE. (B) THE ETHICS REVIEW COMMITTEE RESPONSE TO A HEALTH CARE MATTER MAY INCLUDE: (I) PROVIDING ADVICE ON THE ETHICAL ASPECTS OF PROPOSED HEALTH CARE; (II) MAKING A RECOMMENDATION ABOUT PROPOSED HEALTH CARE; OR (III) PROVIDING ASSISTANCE IN RESOLVING DISPUTES ABOUT PROPOSED HEALTH CARE. (C) RECOMMENDATIONS AND ADVICE BY THE ETHICS REVIEW COMMITTEE SHALL BE ADVISORY AND NONBINDING, EXCEPT AS SPECIFIED IN SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE AND SUBDIVI- SION THREE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-E OF THIS ARTICLE. 3. COMMITTEE MEMBERSHIP. THE MEMBERSHIP OF ETHICS REVIEW COMMITTEES MUST BE INTERDISCIPLINARY AND MUST INCLUDE AT LEAST FIVE MEMBERS WHO HAVE DEMONSTRATED AN INTEREST IN OR COMMITMENT TO PATIENT'S RIGHTS OR TO THE MEDICAL, PUBLIC HEALTH, OR SOCIAL NEEDS OF THOSE WHO ARE ILL. AT LEAST THREE ETHICS REVIEW COMMITTEE MEMBERS MUST BE HEALTH OR SOCIAL SERVICES PRACTITIONERS, AT LEAST ONE OF WHOM MUST BE A REGISTERED NURSE AND ONE OF WHOM MUST BE A PHYSICIAN. AT LEAST ONE MEMBER MUST BE A PERSON WITHOUT ANY GOVERNANCE, EMPLOYMENT OR CONTRACTUAL RELATIONSHIP WITH THE HOSPITAL. IN A RESIDENTIAL HEALTH CARE FACILITY THE FACILITY MUST OFFER THE RESIDENTS' COUNCIL OF THE FACILITY (OR OF ANOTHER FACILI- TY THAT PARTICIPATES IN THE COMMITTEE) THE OPPORTUNITY TO APPOINT UP TO TWO PERSONS TO THE ETHICS REVIEW COMMITTEE, NONE OF WHOM MAY BE A RESI-
DENT OF OR A FAMILY MEMBER OF A RESIDENT OF SUCH FACILITY, AND BOTH OF WHOM SHALL BE PERSONS WHO HAVE EXPERTISE IN OR A DEMONSTRATED COMMITMENT TO PATIENT RIGHTS OR TO THE CARE AND TREATMENT OF THE ELDERLY OR NURSING HOME RESIDENTS THROUGH PROFESSIONAL OR COMMUNITY ACTIVITIES, OTHER THAN ACTIVITIES PERFORMED AS A HEALTH CARE PROVIDER. 4. PROCEDURES FOR ETHICS REVIEW COMMITTEE. (A) THESE PROCEDURES ARE REQUIRED ONLY WHEN: (I) THE ETHICS REVIEW COMMITTEE IS CONVENED TO REVIEW A DECISION BY A SURROGATE TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT FOR: (A) A PATIENT IN A RESIDENTIAL HEALTH CARE FACILITY PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE; (B) A PATIENT IN A GENERAL HOSPI- TAL PURSUANT TO PARAGRAPH (C) OF SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE; OR (C) AN EMANCIPATED MINOR PATIENT PURSUANT TO SUBDIVISION THREE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-E OF THIS ARTICLE; OR (II) WHEN A PERSON CONNECTED WITH THE CASE REQUESTS THE ETHICS REVIEW COMMITTEE TO PROVIDE ASSISTANCE IN RESOLVING A DISPUTE ABOUT PROPOSED CARE. NOTHING IN THIS SECTION SHALL BAR HEALTH CARE PROVIDERS FROM FIRST STRIVING TO RESOLVE DISPUTES THROUGH LESS FORMAL MEANS, INCLUDING THE INFORMAL SOLICITATION OF ETHICAL ADVICE FROM ANY SOURCE. (B)(I) A PERSON CONNECTED WITH THE CASE MAY NOT PARTICIPATE AS AN ETHICS REVIEW COMMITTEE MEMBER IN THE CONSIDERATION OF THAT CASE. (II) THE ETHICS REVIEW COMMITTEE SHALL RESPOND PROMPTLY, AS REQUIRED BY THE CIRCUMSTANCES, TO ANY REQUEST FOR ASSISTANCE IN RESOLVING A DISPUTE OR CONSIDERATION OF A DECISION TO WITHHOLD OR WITHDRAW LIFE-SUS- TAINING TREATMENT PURSUANT TO PARAGRAPHS (B) AND (C) OF SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE MADE BY A PERSON CONNECTED WITH THE CASE. THE COMMITTEE SHALL PERMIT PERSONS CONNECTED WITH THE CASE TO PRESENT THEIR VIEWS TO THE COMMITTEE, AND TO HAVE THE OPTION OF BEING ACCOMPANIED BY AN ADVISOR WHEN PARTICIPATING IN A COMMITTEE MEETING. (III) THE ETHICS REVIEW COMMITTEE SHALL PROMPTLY PROVIDE THE PATIENT, WHERE THERE IS ANY INDICATION OF THE PATIENT'S ABILITY TO COMPREHEND THE INFORMATION, THE SURROGATE, OTHER PERSONS ON THE SURROGATE LIST DIRECTLY INVOLVED IN THE DECISION OR DISPUTE REGARDING THE PATIENT'S CARE, ANY PARENT OR GUARDIAN OF A MINOR PATIENT DIRECTLY INVOLVED IN THE DECISION OR DISPUTE REGARDING THE MINOR PATIENT'S CARE, AN ATTENDING PHYSICIAN, THE HOSPITAL, AND OTHER PERSONS THE COMMITTEE DEEMS APPROPRIATE, WITH THE FOLLOWING: (A) NOTICE OF ANY PENDING CASE CONSIDERATION CONCERNING THE PATIENT, INCLUDING, FOR PATIENTS, PERSONS ON THE SURROGATE LIST, PARENTS AND GUARDIANS, INFORMATION ABOUT THE ETHICS REVIEW COMMITTEE'S PROCEDURES, COMPOSITION AND FUNCTION; AND (B) THE COMMITTEE'S RESPONSE TO THE CASE, INCLUDING A WRITTEN STATE- MENT OF THE REASONS FOR APPROVING OR DISAPPROVING THE WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT FOR DECISIONS CONSIDERED PURSU- ANT TO SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE. THE COMMITTEE'S RESPONSE TO THE CASE SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. (IV) FOLLOWING ETHICS REVIEW COMMITTEE CONSIDERATION OF A CASE CONCERNING THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING TREATMENT, TREATMENT SHALL NOT BE WITHDRAWN OR WITHHELD UNTIL THE PERSONS IDENTI- FIED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH HAVE BEEN INFORMED OF THE COMMITTEE'S RESPONSE TO THE CASE. 5. ACCESS TO MEDICAL RECORDS AND INFORMATION; PATIENT CONFIDENTIALITY. ETHICS REVIEW COMMITTEE MEMBERS AND CONSULTANTS SHALL HAVE ACCESS TO
MEDICAL INFORMATION AND MEDICAL RECORDS NECESSARY TO PERFORM THEIR FUNC- TION UNDER THIS ARTICLE. ANY SUCH INFORMATION OR RECORDS DISCLOSED TO COMMITTEE MEMBERS, CONSULTANTS, OR OTHERS SHALL BE KEPT CONFIDENTIAL EXCEPT TO THE EXTENT NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ARTI- CLE OR AS OTHERWISE PROVIDED BY LAW. 6. ETHICS REVIEW COMMITTEE CONFIDENTIALITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, THE PROCEEDINGS AND RECORDS OF AN ETHICS REVIEW COMMITTEE SHALL BE KEPT CONFIDENTIAL AND SHALL NOT BE RELEASED BY COMMITTEE MEMBERS, COMMITTEE CONSULTANTS, OR OTHER PERSONS PRIVY TO SUCH PROCEEDINGS AND RECORDS; THE PROCEEDINGS AND RECORDS OF AN ETHICS REVIEW COMMITTEE SHALL NOT BE SUBJECT TO DISCLOSURE OR INSPECTION IN ANY MANNER, INCLUDING UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ARTI- CLE THIRTY-ONE OF THE CIVIL PRACTICE LAW AND RULES; AND, NO PERSON SHALL TESTIFY AS TO THE PROCEEDINGS OR RECORDS OF AN ETHICS REVIEW COMMITTEE, NOR SHALL SUCH PROCEEDINGS AND RECORDS OTHERWISE BE ADMISSIBLE AS EVIDENCE IN ANY ACTION OR PROCEEDING OF ANY KIND IN ANY COURT OR BEFORE ANY OTHER TRIBUNAL, BOARD, AGENCY OR PERSON, EXCEPT THAT: (A) ETHICS REVIEW COMMITTEE PROCEEDINGS AND RECORDS, IN CASES WHERE A COMMITTEE APPROVES OR DISAPPROVES OF THE WITHHOLDING OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT PURSUANT TO SUBDIVISION FIVE OF SECTION TWEN- TY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE, OR SUBDIVISION THREE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-E OF THIS ARTICLE, MAY BE OBTAINED BY OR RELEASED TO THE DEPARTMENT; (B) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT THE PATIENT, THE SURRO- GATE, OTHER PERSONS ON THE SURROGATE LIST, OR A PARENT OR GUARDIAN OF A MINOR PATIENT FROM VOLUNTARILY DISCLOSING, RELEASING OR TESTIFYING ABOUT COMMITTEE PROCEEDINGS OR RECORDS; AND (C) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT THE STATE COMMISSION ON QUALITY OF CARE AND ADVOCACY FOR PERSONS WITH DISABILITIES OR ANY AGENCY OR PERSON WITHIN OR UNDER CONTRACT WITH THE COMMISSION WHICH PROVIDES PROTECTION AND ADVOCACY SERVICES FROM REQUIRING ANY INFORMATION, REPORT OR RECORD FROM A HOSPITAL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 45.09 OF THE MENTAL HYGIENE LAW. S 2994-N. CONSCIENCE OBJECTIONS. 1. PRIVATE HOSPITALS. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE A PRIVATE HOSPITAL TO HONOR A HEALTH CARE DECISION MADE PURSUANT TO THIS ARTICLE IF: (A) THE DECISION IS CONTRARY TO A FORMALLY ADOPTED POLICY OF THE HOSPITAL THAT IS EXPRESSLY BASED ON SINCERELY HELD RELIGIOUS BELIEFS OR SINCERELY HELD MORAL CONVICTIONS CENTRAL TO THE FACILITY'S OPERATING PRINCIPLES; (B) THE HOSPITAL HAS INFORMED THE PATIENT, FAMILY, OR SURROGATE OF SUCH POLICY PRIOR TO OR UPON ADMISSION, IF REASONABLY POSSIBLE; AND (C) THE PATIENT IS TRANSFERRED PROMPTLY TO ANOTHER HOSPITAL THAT IS REASONABLY ACCESSIBLE UNDER THE CIRCUMSTANCES AND WILLING TO HONOR THE DECISION AND PENDING TRANSFER THE HOSPITAL COMPLIES WITH SUBDIVISION THREE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-F OF THIS ARTICLE. IF THE PATIENT'S FAMILY OR SURROGATE IS UNABLE OR UNWILLING TO ARRANGE SUCH A TRANSFER, THE HOSPITAL MAY INTERVENE TO FACILITATE SUCH A TRANSFER. IF SUCH A TRANSFER IS NOT EFFECTED, THE HOSPITAL SHALL SEEK JUDICIAL RELIEF IN ACCORDANCE WITH SECTION TWENTY-NINE HUNDRED NINETY-FOUR-R OF THIS ARTICLE OR HONOR THE DECISION. 2. INDIVIDUAL HEALTH CARE PROVIDERS. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE AN INDIVIDUAL AS A HEALTH CARE PROVIDER TO HONOR A HEALTH CARE DECISION MADE PURSUANT TO THIS ARTICLE IF: (A) THE DECISION IS CONTRARY TO THE INDIVIDUAL'S SINCERELY HELD RELI- GIOUS BELIEFS OR SINCERELY HELD MORAL CONVICTION; AND
(B) THE INDIVIDUAL HEALTH CARE PROVIDER PROMPTLY INFORMS THE PERSON WHO MADE THE DECISION AND THE HOSPITAL OF HIS OR HER REFUSAL TO HONOR THE DECISION. IN SUCH EVENT, THE HOSPITAL SHALL PROMPTLY TRANSFER RESPONSIBILITY FOR THE PATIENT TO ANOTHER INDIVIDUAL HEALTH CARE PROVID- ER WILLING TO HONOR THE DECISION. THE INDIVIDUAL HEALTH CARE PROVIDER SHALL COOPERATE IN FACILITATING SUCH TRANSFER AND COMPLY WITH SUBDIVI- SION THREE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-F OF THIS ARTICLE. S 2994-O. IMMUNITY. 1. ETHICS REVIEW COMMITTEE. NO PERSON SHALL BE SUBJECT TO CRIMINAL OR CIVIL LIABILITY, OR BE DEEMED TO HAVE ENGAGED IN UNPROFESSIONAL CONDUCT, FOR ACTS PERFORMED REASONABLY AND IN GOOD FAITH PURSUANT TO THIS ARTICLE AS A MEMBER OF OR AS A CONSULTANT TO AN ETHICS REVIEW COMMITTEE OR AS A PARTICIPANT IN AN ETHICS REVIEW COMMITTEE MEET- ING. 2. PROVIDERS. NO HEALTH CARE PROVIDER OR EMPLOYEE THEREOF SHALL BE SUBJECTED TO CRIMINAL OR CIVIL LIABILITY, OR BE DEEMED TO HAVE ENGAGED IN UNPROFESSIONAL CONDUCT, FOR HONORING REASONABLY AND IN GOOD FAITH A HEALTH CARE DECISION MADE PURSUANT TO THIS ARTICLE OR FOR OTHER ACTIONS TAKEN REASONABLY AND IN GOOD FAITH PURSUANT TO THIS ARTICLE. 3. SURROGATES AND GUARDIANS. NO PERSON SHALL BE SUBJECTED TO CRIMINAL OR CIVIL LIABILITY FOR MAKING A HEALTH CARE DECISION REASONABLY AND IN GOOD FAITH PURSUANT TO THIS ARTICLE OR FOR OTHER ACTIONS TAKEN REASON- ABLY AND IN GOOD FAITH PURSUANT TO THIS ARTICLE. S 2994-P. LIABILITY FOR HEALTH CARE COSTS. LIABILITY FOR THE COST OF HEALTH CARE PROVIDED TO AN ADULT PATIENT PURSUANT TO THIS ARTICLE SHALL BE THE SAME AS IF THE HEALTH CARE WERE PROVIDED PURSUANT TO THE PATIENT'S DECISION. NO PERSON SHALL BECOME LIABLE FOR THE COST OF HEALTH CARE FOR A MINOR SOLELY BY VIRTUE OF MAKING A DECISION AS A GUARDIAN OF A MINOR PURSUANT TO THIS ARTICLE. S 2994-Q. EFFECT ON OTHER RIGHTS. 1. NOTHING IN THIS ARTICLE CREATES, EXPANDS, DIMINISHES, IMPAIRS, OR SUPERSEDES ANY AUTHORITY THAT AN INDI- VIDUAL MAY HAVE UNDER LAW TO MAKE OR EXPRESS DECISIONS, WISHES, OR INSTRUCTIONS REGARDING HEALTH CARE ON HIS OR HER OWN BEHALF, INCLUDING DECISIONS ABOUT LIFE-SUSTAINING TREATMENT. 2. NOTHING IN THIS ARTICLE SHALL AFFECT EXISTING LAW CONCERNING IMPLIED CONSENT TO HEALTH CARE IN AN EMERGENCY. 3. NOTHING IN THIS ARTICLE IS INTENDED TO PERMIT OR PROMOTE SUICIDE, ASSISTED SUICIDE, OR EUTHANASIA. 4. THIS ARTICLE SHALL NOT AFFECT EXISTING LAW WITH RESPECT TO STERILI- ZATION. 5. NOTHING IN THIS ARTICLE DIMINISHES THE DUTY OF PARENTS AND LEGAL GUARDIANS UNDER EXISTING LAW TO CONSENT TO TREATMENT FOR MINORS. S 2994-R. SPECIAL PROCEEDING AUTHORIZED; COURT ORDERS; HEALTH CARE GUARDIAN FOR MINOR PATIENT. 1. SPECIAL PROCEEDING. ANY PERSON CONNECTED WITH THE CASE AND ANY MEMBER OF THE HOSPITAL ETHICS REVIEW COMMITTEE MAY COMMENCE A SPECIAL PROCEEDING PURSUANT TO ARTICLE FOUR OF THE CIVIL PRACTICE LAW AND RULES IN A COURT OF COMPETENT JURISDICTION WITH RESPECT TO ANY MATTER ARISING UNDER THIS ARTICLE. 2. COURT ORDERS DESIGNATING SURROGATE. A COURT OF COMPETENT JURISDIC- TION MAY DESIGNATE ANY INDIVIDUAL FROM THE SURROGATE LIST TO ACT AS SURROGATE, REGARDLESS OF THAT INDIVIDUAL'S PRIORITY ON THE LIST, IF THE COURT DETERMINES THAT SUCH APPOINTMENT WOULD BEST ACCORD WITH THE PATIENT'S WISHES OR, IF THE PATIENT'S WISHES ARE NOT REASONABLY KNOWN, WITH THE PATIENT'S BEST INTERESTS. UNLESS OTHERWISE DETERMINED BY A COURT, NO SURROGATE DECISION MADE PRIOR TO AN ORDER DESIGNATING A SURRO- GATE SHALL BE DEEMED TO HAVE BEEN INVALID BECAUSE OF THE ISSUANCE OF A DESIGNATING ORDER.
3. COURT ORDERS TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT. A COURT OF COMPETENT JURISDICTION MAY AUTHORIZE THE WITHHOLDING OR WITH- DRAWAL OF LIFE-SUSTAINING TREATMENT FROM A PERSON IF THE COURT DETER- MINES THAT THE PERSON LACKS DECISION-MAKING CAPACITY, AND WITHDRAWING OR WITHHOLDING THE TREATMENT WOULD ACCORD WITH THE STANDARDS SET FORTH IN SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THIS ARTICLE. 4. HEALTH CARE GUARDIAN FOR A MINOR PATIENT. (A) NO APPOINTMENT SHALL BE MADE PURSUANT TO THIS SUBDIVISION IF A PARENT OR LEGAL GUARDIAN OF THE PERSON IS AVAILABLE, WILLING, AND COMPETENT TO DECIDE ABOUT TREAT- MENT FOR THE MINOR. (B) THE FOLLOWING PERSONS MAY COMMENCE A SPECIAL PROCEEDING IN A COURT OF COMPETENT JURISDICTION TO SEEK APPOINTMENT AS THE HEALTH CARE GUARDI- AN OF A MINOR PATIENT SOLELY FOR THE PURPOSE OF DECIDING ABOUT LIFE-SUS- TAINING TREATMENT PURSUANT TO THIS ARTICLE: (I) THE HOSPITAL ADMINISTRATOR; (II) AN ATTENDING PHYSICIAN; (III) THE LOCAL COMMISSIONER OF SOCIAL SERVICES OR THE LOCAL COMMIS- SIONER OF HEALTH, AUTHORIZED TO MAKE MEDICAL TREATMENT DECISIONS FOR THE MINOR PURSUANT TO SECTION THREE HUNDRED EIGHTY-THREE-B OF THE SOCIAL SERVICES LAW; OR (IV) AN INDIVIDUAL, EIGHTEEN YEARS OF AGE OR OLDER, WHO HAS ASSUMED CARE OF THE MINOR FOR A SUBSTANTIAL AND CONTINUOUS PERIOD OF TIME. (C) NOTICE OF THE PROCEEDING SHALL BE GIVEN TO THE PERSONS IDENTIFIED IN SECTION SEVENTEEN HUNDRED FIVE OF THE SURROGATE'S COURT PROCEDURE ACT. (D) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SEEKING APPOINTMENT OR BEING APPOINTED AS A HEALTH CARE GUARDIAN SHALL NOT OTHERWISE AFFECT THE LEGAL STATUS OR RIGHTS OF THE INDIVIDUAL SEEKING OR OBTAINING SUCH APPOINTMENT. S 2994-S. REMEDY. 1. ANY HOSPITAL OR ATTENDING PHYSICIAN THAT REFUSES TO HONOR A HEALTH CARE DECISION BY A SURROGATE MADE PURSUANT TO THIS ARTICLE AND IN ACCORD WITH THE STANDARDS SET FORTH IN THIS ARTICLE SHALL NOT BE ENTITLED TO COMPENSATION FOR TREATMENT, SERVICES, OR PROCEDURES REFUSED BY THE SURROGATE, EXCEPT THAT THIS SUBDIVISION SHALL NOT APPLY: (A) WHEN A HOSPITAL OR PHYSICIAN EXERCISES THE RIGHTS GRANTED BY SECTION TWENTY-NINE HUNDRED NINETY-FOUR-N OF THIS ARTICLE, PROVIDED THAT THE PHYSICIAN OR HOSPITAL PROMPTLY FULFILLS THE OBLIGATIONS SET FORTH IN SECTION TWENTY-NINE HUNDRED NINETY-FOUR-N OF THIS ARTICLE; (B) WHILE A MATTER IS UNDER CONSIDERATION BY THE ETHICS REVIEW COMMIT- TEE, PROVIDED THAT THE MATTER IS PROMPTLY REFERRED TO AND CONSIDERED BY THE COMMITTEE; (C) IN THE EVENT OF A DISPUTE BETWEEN INDIVIDUALS ON THE SURROGATE LIST; OR (D) IF THE PHYSICIAN OR HOSPITAL PREVAILS IN ANY LITIGATION CONCERNING THE SURROGATE'S DECISION TO REFUSE THE TREATMENT, SERVICES OR PROCEDURE. NOTHING IN THIS SECTION SHALL DETERMINE OR AFFECT HOW DISPUTES AMONG INDIVIDUALS ON THE SURROGATE LIST ARE RESOLVED. 2. THE REMEDY PROVIDED IN THIS SECTION IS IN ADDITION TO AND CUMULA- TIVE WITH ANY OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY OR BY ADMIN- ISTRATIVE PROCEEDINGS TO A PATIENT, A HEALTH CARE AGENT APPOINTED PURSU- ANT TO ARTICLE TWENTY-NINE-C OF THIS CHAPTER, OR A PERSON AUTHORIZED TO MAKE HEALTH CARE DECISIONS PURSUANT TO THIS ARTICLE, INCLUDING INJUNC- TIVE AND DECLARATORY RELIEF, AND ANY OTHER PROVISIONS OF THIS CHAPTER GOVERNING FINES, PENALTIES, OR FORFEITURES.
S 2994-T. REGULATIONS. 1. THE COMMISSIONER SHALL ESTABLISH SUCH REGU- LATIONS AS MAY BE NECESSARY TO IMPLEMENT THIS ARTICLE. 2. THE COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONERS OF THE OFFICE OF MENTAL HEALTH AND THE OFFICE OF MENTAL RETARDATION AND DEVEL- OPMENTAL DISABILITIES, SHALL PROMULGATE REGULATIONS IDENTIFYING THE CREDENTIALS OF HEALTH CARE PROFESSIONALS QUALIFIED TO PROVIDE AN INDE- PENDENT DETERMINATION, PURSUANT TO SUBDIVISION THREE OF SECTION TWENTY- NINE HUNDRED NINETY-FOUR-C OF THIS ARTICLE, THAT A PATIENT LACKS DECI- SION-MAKING CAPACITY BECAUSE OF MENTAL ILLNESS OR DEVELOPMENTAL DISABILITY. S 2994-U. RIGHTS TO BE PUBLICIZED. THE COMMISSIONER SHALL PREPARE A STATEMENT SUMMARIZING THE RIGHTS, DUTIES, AND REQUIREMENTS OF THIS ARTI- CLE AND SHALL REQUIRE THAT A COPY OF SUCH STATEMENT BE FURNISHED TO PATIENTS OR TO PERSONS ON THE SURROGATE LIST KNOWN TO THE HOSPITAL, OR TO THE PARENTS OR GUARDIANS OF MINOR PATIENTS, AT OR PRIOR TO ADMISSION TO THE HOSPITAL, OR WITHIN A REASONABLE TIME THEREAFTER, AND TO EACH MEMBER OF THE HOSPITAL'S STAFF DIRECTLY INVOLVED WITH PATIENT CARE. ARTICLE 29-CCC NONHOSPITAL ORDERS NOT TO RESUSCITATE SECTION 2994-AA. DEFINITIONS. 2994-BB. GENERAL PROVISIONS. 2994-CC. CONSENT TO A NONHOSPITAL ORDER NOT TO RESUSCITATE. 2994-DD. MANAGING A NONHOSPITAL ORDER NOT TO RESUSCITATE. 2994-EE. OBLIGATION TO HONOR A NONHOSPITAL ORDER NOT TO RESUSCI- TATE. 2994-FF. INTERINSTITUTIONAL TRANSFER. 2994-GG. IMMUNITY. S 2994-AA. DEFINITIONS. 1. "ADULT" MEANS ANY PERSON WHO IS EIGHTEEN YEARS OF AGE OR OLDER, OR IS THE PARENT OF A CHILD OR HAS MARRIED. 2. "ATTENDING PHYSICIAN" MEANS THE PHYSICIAN WHO HAS PRIMARY RESPONSI- BILITY FOR THE TREATMENT AND CARE OF THE PATIENT. WHERE MORE THAN ONE PHYSICIAN SHARES SUCH RESPONSIBILITY, ANY SUCH PHYSICIAN MAY ACT AS THE ATTENDING PHYSICIAN PURSUANT TO THIS ARTICLE. 3. "CAPACITY" MEANS THE ABILITY TO UNDERSTAND AND APPRECIATE THE NATURE AND CONSEQUENCES OF A NONHOSPITAL ORDER NOT TO RESUSCITATE, INCLUDING THE BENEFITS AND DISADVANTAGES OF SUCH AN ORDER, AND TO REACH AN INFORMED DECISION REGARDING THE ORDER. 4. "CARDIOPULMONARY RESUSCITATION" MEANS MEASURES, AS SPECIFIED IN REGULATIONS PROMULGATED BY THE COMMISSIONER, TO RESTORE CARDIAC FUNCTION OR TO SUPPORT VENTILATION IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST. SUCH TERM SHALL NOT INCLUDE MEASURES TO IMPROVE VENTILATION AND CARDIAC FUNCTION IN THE ABSENCE OF AN ARREST. 5. "EMERGENCY MEDICAL SERVICES PERSONNEL" MEANS THE PERSONNEL OF A SERVICE OR AGENCY ENGAGED IN PROVIDING INITIAL EMERGENCY MEDICAL ASSIST- ANCE, INCLUDING BUT NOT LIMITED TO FIRST RESPONDERS, EMERGENCY MEDICAL TECHNICIANS, ADVANCED EMERGENCY MEDICAL TECHNICIANS AND PERSONNEL ENGAGED IN PROVIDING HEALTH CARE AT CORRECTIONAL FACILITIES, AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF SECTION TWO OF THE CORRECTION LAW. 6. "HEALTH CARE AGENT" MEANS A HEALTH CARE AGENT OF THE PATIENT DESIG- NATED PURSUANT TO ARTICLE TWENTY-NINE-C OF THIS CHAPTER. 7. "HEALTH OR SOCIAL SERVICES PRACTITIONER" MEANS A REGISTERED PROFES- SIONAL NURSE, NURSE PRACTITIONER, PHYSICIAN, PHYSICIAN ASSISTANT, PSYCHOLOGIST OR CERTIFIED, LICENSED MASTER SOCIAL WORKER OR LICENSED
CLINICAL SOCIAL WORKER, LICENSED OR CERTIFIED PURSUANT TO THE EDUCATION LAW, ACTING WITHIN HIS OR HER SCOPE OF PRACTICE. 8. "HOME CARE SERVICES AGENCY" MEANS AN ENTITY CERTIFIED, LICENSED OR EXEMPT UNDER ARTICLE THIRTY-SIX OF THIS CHAPTER. 9. "HOSPICE" MEANS A HOSPICE AS DEFINED IN ARTICLE FORTY OF THIS CHAP- TER. 10. "HOSPITAL" MEANS A GENERAL HOSPITAL AS DEFINED IN SUBDIVISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER AND A RESIDENTIAL HEALTH CARE FACILITY AS DEFINED IN SUBDIVISION THREE OF SECTION TWENTY- EIGHT HUNDRED ONE OF THIS CHAPTER OR A HOSPITAL AS DEFINED IN SUBDIVI- SION TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW OR A SCHOOL NAMED IN SECTION 13.17 OF THE MENTAL HYGIENE LAW. 11. "HOSPITAL EMERGENCY SERVICES PERSONNEL" MEANS THE PERSONNEL OF THE EMERGENCY SERVICE OF A GENERAL HOSPITAL, AS DEFINED IN SUBDIVISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER, INCLUDING BUT NOT LIMITED TO EMERGENCY SERVICES ATTENDING PHYSICIANS, EMERGENCY SERVICES REGISTERED PROFESSIONAL NURSES, AND REGISTERED PROFESSIONAL NURSES, NURSING STAFF AND REGISTERED PHYSICIAN ASSISTANTS ASSIGNED TO THE GENER- AL HOSPITAL'S EMERGENCY SERVICE. 12. "MENTAL HYGIENE FACILITY" MEANS A RESIDENTIAL FACILITY OPERATED OR LICENSED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE OF MENTAL RETARDA- TION AND DEVELOPMENTAL DISABILITIES. 13. "NONHOSPITAL ORDER NOT TO RESUSCITATE" MEANS AN ORDER THAT DIRECTS EMERGENCY MEDICAL SERVICES PERSONNEL AND HOSPITAL EMERGENCY SERVICES PERSONNEL NOT TO ATTEMPT CARDIOPULMONARY RESUSCITATION IN THE EVENT A PATIENT SUFFERS CARDIAC OR RESPIRATORY ARREST. 14. "PATIENT" MEANS A PERSON WHO HAS BEEN OR WHO MAY BE ISSUED A NONHOSPITAL ORDER NOT TO RESUSCITATE. 15. "SURROGATE" MEANS A PERSON AUTHORIZED TO MAKE A HEALTH CARE DECI- SION ON BEHALF OF A PATIENT PURSUANT TO ARTICLE TWENTY-NINE-CC OF THIS CHAPTER. S 2994-BB. GENERAL PROVISIONS. 1. (A) EMERGENCY MEDICAL SERVICES PERSONNEL, HOME CARE SERVICES AGENCY PERSONNEL, HOSPICE PERSONNEL, AND HOSPITAL EMERGENCY SERVICES PERSONNEL SHALL HONOR NONHOSPITAL ORDERS NOT TO RESUSCITATE, EXCEPT AS PROVIDED IN SECTION TWENTY-NINE HUNDRED NINE- TY-FOUR-EE OF THIS ARTICLE. (B) A NONHOSPITAL ORDER NOT TO RESUSCITATE SHALL NOT CONSTITUTE AN ORDER TO WITHHOLD OR WITHDRAW TREATMENT OTHER THAN CARDIOPULMONARY RESUSCITATION. 2. A NONHOSPITAL ORDER NOT TO RESUSCITATE MAY BE ISSUED DURING HOSPI- TALIZATION TO TAKE EFFECT AFTER HOSPITALIZATION, OR MAY BE ISSUED FOR A PERSON WHO IS NOT A PATIENT IN, OR A RESIDENT OF, A HOSPITAL. S 2994-CC. CONSENT TO A NONHOSPITAL ORDER NOT TO RESUSCITATE. 1. AN ADULT WITH DECISION-MAKING CAPACITY, A HEALTH CARE AGENT, OR A SURROGATE MAY CONSENT TO A NONHOSPITAL ORDER NOT TO RESUSCITATE ORALLY TO THE ATTENDING PHYSICIAN OR IN WRITING. IF A PATIENT CONSENTS TO A NONHOSPI- TAL ORDER NOT TO RESUSCITATE WHILE IN A CORRECTIONAL FACILITY, NOTICE OF THE PATIENT'S CONSENT SHALL BE GIVEN TO THE FACILITY DIRECTOR AND REASONABLE EFFORTS SHALL BE MADE TO NOTIFY AN INDIVIDUAL DESIGNATED BY THE PATIENT TO RECEIVE SUCH NOTICE PRIOR TO THE ISSUANCE OF THE NONHOS- PITAL ORDER NOT TO RESUSCITATE. NOTIFICATION TO THE FACILITY DIRECTOR OR THE INDIVIDUAL DESIGNATED BY THE PATIENT SHALL NOT DELAY ISSUANCE OF A NONHOSPITAL ORDER NOT TO RESUSCITATE. 2. CONSENT BY A HEALTH CARE AGENT SHALL BE GOVERNED BY ARTICLE TWEN- TY-NINE-C OF THIS CHAPTER.
3. CONSENT BY A SURROGATE SHALL BE GOVERNED BY ARTICLE TWENTY-NINE-CC OF THIS CHAPTER, EXCEPT THAT: (A) A SECOND DETERMINATION OF CAPACITY SHALL BE MADE BY A HEALTH OR SOCIAL SERVICES PRACTITIONER; AND (B) THE AUTHORITY OF THE ETHICS REVIEW COMMITTEE SET FORTH IN ARTICLE TWENTY-NINE-CC OF THIS CHAPTER SHALL APPLY ONLY TO NONHOSPITAL ORDERS ISSUED IN A HOSPITAL. 4. (A) WHEN THE CONCURRENCE OF A SECOND PHYSICIAN IS SOUGHT TO FULFILL THE REQUIREMENTS FOR THE ISSUANCE OF A NONHOSPITAL ORDER NOT TO RESUSCI- TATE FOR PATIENTS IN A CORRECTIONAL FACILITY, SUCH SECOND PHYSICIAN SHALL BE SELECTED BY THE CHIEF MEDICAL OFFICER OF THE DEPARTMENT OF CORRECTIONAL SERVICES OR HIS OR HER DESIGNEE. (B) WHEN THE CONCURRENCE OF A SECOND PHYSICIAN IS SOUGHT TO FULFILL THE REQUIREMENTS FOR THE ISSUANCE OF A NONHOSPITAL ORDER NOT TO RESUSCI- TATE FOR HOSPICE AND HOME CARE PATIENTS, SUCH SECOND PHYSICIAN SHALL BE SELECTED BY THE HOSPICE MEDICAL DIRECTOR OR HOSPICE NURSE COORDINATOR DESIGNATED BY THE MEDICAL DIRECTOR OR BY THE HOME CARE SERVICES AGENCY DIRECTOR OF PATIENT CARE SERVICES, AS APPROPRIATE TO THE PATIENT. 5. CONSENT BY A PATIENT OR A SURROGATE FOR A PATIENT IN A MENTAL HYGIENE FACILITY SHALL BE GOVERNED BY ARTICLE TWENTY-NINE-B OF THIS CHAPTER. S 2994-DD. MANAGING A NONHOSPITAL ORDER NOT TO RESUSCITATE. 1. THE ATTENDING PHYSICIAN SHALL RECORD THE ISSUANCE OF A NONHOSPITAL ORDER NOT TO RESUSCITATE IN THE PATIENT'S MEDICAL RECORD. 2. A NONHOSPITAL ORDER NOT TO RESUSCITATE SHALL BE ISSUED UPON A STAN- DARD FORM PRESCRIBED BY THE COMMISSIONER. THE COMMISSIONER SHALL ALSO DEVELOP A STANDARD BRACELET THAT MAY BE WORN BY A PATIENT WITH A NONHOS- PITAL ORDER NOT TO RESUSCITATE TO IDENTIFY THAT STATUS; PROVIDED, HOWEV- ER, THAT NO PERSON MAY REQUIRE A PATIENT TO WEAR SUCH A BRACELET AND THAT NO PERSON MAY REQUIRE A PATIENT TO WEAR SUCH A BRACELET AS A CONDI- TION FOR HONORING A NONHOSPITAL ORDER NOT TO RESUSCITATE OR FOR PROVID- ING HEALTH CARE SERVICES. 3. AN ATTENDING PHYSICIAN WHO HAS ISSUED A NONHOSPITAL ORDER NOT TO RESUSCITATE, AND WHO TRANSFERS CARE OF THE PATIENT TO ANOTHER PHYSICIAN, SHALL INFORM THE PHYSICIAN OF THE ORDER. 4. FOR EACH PATIENT FOR WHOM A NONHOSPITAL ORDER NOT TO RESUSCITATE HAS BEEN ISSUED, THE ATTENDING PHYSICIAN SHALL REVIEW WHETHER THE ORDER IS STILL APPROPRIATE IN LIGHT OF THE PATIENT'S CONDITION EACH TIME HE OR SHE EXAMINES THE PATIENT, WHETHER IN THE HOSPITAL OR ELSEWHERE, BUT AT LEAST EVERY NINETY DAYS, PROVIDED THAT THE REVIEW NEED NOT OCCUR MORE THAN ONCE EVERY SEVEN DAYS. THE ATTENDING PHYSICIAN SHALL RECORD THE REVIEW IN THE PATIENT'S MEDICAL RECORD PROVIDED, HOWEVER, THAT A REGIS- TERED NURSE WHO PROVIDES DIRECT CARE TO THE PATIENT MAY RECORD THE REVIEW IN THE MEDICAL RECORD AT THE DIRECTION OF THE PHYSICIAN. IN SUCH CASE, THE ATTENDING PHYSICIAN SHALL INCLUDE A CONFIRMATION OF THE REVIEW IN THE PATIENT'S MEDICAL RECORD WITHIN FOURTEEN DAYS OF SUCH REVIEW. FAILURE TO COMPLY WITH THIS SUBDIVISION SHALL NOT RENDER A NONHOSPITAL ORDER NOT TO RESUSCITATE INEFFECTIVE. 5. A PERSON WHO HAS CONSENTED TO A NONHOSPITAL ORDER NOT TO RESUSCI- TATE MAY AT ANY TIME REVOKE HIS OR HER CONSENT TO THE ORDER BY ANY ACT EVIDENCING A SPECIFIC INTENT TO REVOKE SUCH CONSENT. ANY HEALTH CARE PROFESSIONAL INFORMED OF A REVOCATION OF CONSENT TO A NONHOSPITAL ORDER NOT TO RESUSCITATE SHALL NOTIFY THE ATTENDING PHYSICIAN OF THE REVOCA- TION. AN ATTENDING PHYSICIAN WHO IS INFORMED THAT A NONHOSPITAL ORDER NOT TO RESUSCITATE HAS BEEN REVOKED SHALL RECORD THE REVOCATION IN THE PATIENT'S MEDICAL RECORD, CANCEL THE ORDER AND MAKE DILIGENT EFFORTS TO RETRIEVE THE FORM ISSUING THE ORDER, AND THE STANDARD BRACELET, IF ANY.
6. THE COMMISSIONER MAY AUTHORIZE THE USE OF ONE OR MORE ALTERNATIVE FORMS FOR ISSUING A NONHOSPITAL ORDER NOT TO RESUSCITATE (IN PLACE OF THE STANDARD FORM PRESCRIBED BY THE COMMISSIONER UNDER SUBDIVISION TWO OF THIS SECTION). SUCH ALTERNATIVE FORM OR FORMS MAY ALSO BE USED TO ISSUE A NON-HOSPITAL DO NOT INTUBATE ORDER. ANY SUCH ALTERNATIVE FORMS INTENDED FOR USE FOR PERSONS WITH MENTAL RETARDATION OR DEVELOPMENTAL DISABILITIES OR PERSONS WITH MENTAL ILLNESS WHO ARE INCAPABLE OF MAKING THEIR OWN HEALTH CARE DECISIONS OR WHO HAVE A GUARDIAN OF THE PERSON APPOINTED PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT MUST ALSO BE APPROVED BY THE COMMISSIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES OR THE COMMISSIONER OF MENTAL HEALTH, AS APPROPRIATE. AN ALTERNATIVE FORM UNDER THIS SUBDIVISION SHALL OTHERWISE CONFORM WITH APPLICABLE FEDERAL AND STATE LAW. THIS SUBDIVISION DOES NOT LIMIT, RESTRICT OR IMPAIR THE USE OF AN ALTERNATIVE FORM FOR ISSUING AN ORDER NOT TO RESUSCITATE IN A GENERAL HOSPITAL OR RESIDENTIAL HEALTH CARE FACILITY UNDER ARTICLE TWENTY-EIGHT OF THIS CHAPTER OR A HOSPITAL UNDER SUBDIVISION TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW OR A SCHOOL UNDER SECTION 13.17 OF THE MENTAL HYGIENE LAW. S 2994-EE. OBLIGATION TO HONOR A NONHOSPITAL ORDER NOT TO RESUSCITATE. EMERGENCY MEDICAL SERVICES PERSONNEL, HOME CARE SERVICES AGENCY PERSON- NEL, HOSPICE PERSONNEL, OR HOSPITAL EMERGENCY SERVICES PERSONNEL WHO ARE PROVIDED WITH A NONHOSPITAL ORDER NOT TO RESUSCITATE, OR WHO IDENTIFY THE STANDARD BRACELET ON THE PATIENT'S BODY, SHALL COMPLY WITH THE TERMS OF SUCH ORDER; PROVIDED, HOWEVER, THAT: 1. EMERGENCY MEDICAL SERVICES PERSONNEL, HOME CARE SERVICES AGENCY PERSONNEL, HOSPICE PERSONNEL, OR HOSPITAL EMERGENCY SERVICES PERSONNEL MAY DISREGARD THE ORDER IF: (A) THEY BELIEVE IN GOOD FAITH THAT CONSENT TO THE ORDER HAS BEEN REVOKED, OR THAT THE ORDER HAS BEEN CANCELLED; OR (B) FAMILY MEMBERS OR OTHERS ON THE SCENE, EXCLUDING SUCH PERSONNEL, OBJECT TO THE ORDER AND PHYSICAL CONFRONTATION APPEARS LIKELY; AND 2. HOSPITAL EMERGENCY SERVICES PHYSICIANS MAY DIRECT THAT THE ORDER BE DISREGARDED IF OTHER SIGNIFICANT AND EXCEPTIONAL MEDICAL CIRCUMSTANCES WARRANT DISREGARDING THE ORDER. S 2994-FF. INTERINSTITUTIONAL TRANSFER. IF A PATIENT WITH A NONHOSPI- TAL ORDER NOT TO RESUSCITATE IS ADMITTED TO A HOSPITAL, THE ORDER SHALL BE TREATED AS AN ORDER NOT TO RESUSCITATE FOR A PATIENT TRANSFERRED FROM ANOTHER HOSPITAL, AND SHALL BE GOVERNED BY ARTICLE TWENTY-NINE-CC OF THIS CHAPTER, EXCEPT THAT ANY SUCH ORDER FOR A PATIENT ADMITTED TO A MENTAL HYGIENE FACILITY SHALL BE GOVERNED BY ARTICLE TWENTY-NINE-B OF THIS CHAPTER. S 2994-GG. IMMUNITY. NO PERSON SHALL BE SUBJECTED TO CRIMINAL PROSE- CUTION OR CIVIL LIABILITY, OR BE DEEMED TO HAVE ENGAGED IN UNPROFES- SIONAL CONDUCT, FOR HONORING REASONABLY AND IN GOOD FAITH PURSUANT TO THIS SECTION A NONHOSPITAL ORDER NOT TO RESUSCITATE, FOR DISREGARDING A NONHOSPITAL ORDER PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-EE OF THIS ARTICLE, OR FOR OTHER ACTIONS TAKEN REASONABLY AND IN GOOD FAITH PURSUANT TO THIS SECTION. S 3. Subdivision 1 of section 2805-q of the public health law, as added by chapter 471 of the laws of 2004, is amended to read as follows: 1. No domestic partner OR SURROGATE AS DEFINED BY SUBDIVISION TWENTY- NINE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-A OF THIS CHAPTER shall be denied any rights of visitation of his or her domestic partner OR OF THE PATIENT OR RESIDENT FOR WHOM HE OR SHE IS THE SURROGATE, when such
rights are accorded to spouses and next-of-kin at any hospital, nursing home or health care facility. S 4. The article heading of article 29-B of the public health law, as added by chapter 818 of the laws of 1987, is amended to read as follows: ORDERS NOT TO RESUSCITATE FOR RESIDENTS OF MENTAL HYGIENE FACILITIES S 5. Subdivisions 7, 10, 13 and 16 of section 2961 of the public health law are REPEALED. S 6. Subdivisions 2, 4, 5, 9 and 19 of section 2961 of the public health law, subdivisions 2 and 19 as amended and subdivision 9 as renum- bered by chapter 370 of the laws of 1991 and subdivisions 4, 5 and 9 as added by chapter 818 of the laws of 1987, are amended to read as follows: 2. "Attending physician" means the physician selected by or assigned to a patient in a hospital [or, for the purpose of provisions herein governing nonhospital orders not to resuscitate, a patient not in a hospital,] who has primary responsibility for the treatment and care of the patient. Where more than one physician shares such responsibility, any such physician may act as the attending physician pursuant to this article. 4. "Cardiopulmonary resuscitation" means measures[, as specified in regulations promulgated by the commissioner,] to restore cardiac func- tion or to support ventilation in the event of a cardiac or respiratory arrest. Cardiopulmonary resuscitation shall not include measures to improve ventilation and cardiac functions in the absence of an arrest. 5. "Close friend" means any person, eighteen years of age or older, who [presents an affidavit to an attending physician stating that he] is a close friend of the patient [and that he], OR RELATIVE OF THE PATIENT (OTHER THAN A SPOUSE, ADULT CHILD, PARENT, BROTHER OR SISTER) WHO has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious or moral beliefs [and stating the facts and circumstances that demonstrate such familiarity] AND WHO PRESENTS A SIGNED STATEMENT TO THAT EFFECT TO THE ATTENDING PHYSICIAN. 9. "Hospital" means [a general hospital as defined in subdivision ten of section twenty-eight hundred one of this chapter and a residential health care facility as defined in subdivision three of section twenty- eight hundred one of this chapter or] a hospital as defined in subdivi- sion ten of section 1.03 of the mental hygiene law or a school named in section 13.17 of the mental hygiene law. 19. "Patient" means a person admitted to a hospital [or, for the purpose of provisions herein governing nonhospital orders not to resus- citate, a person who has or may be issued a nonhospital order not to resuscitate]. S 7. Section 2961 of the public health law is amended by adding a new subdivision 6-a to read as follows: 6-A. "DOMESTIC PARTNER" MEANS A PERSON WHO, WITH RESPECT TO ANOTHER PERSON: (A) IS FORMALLY A PARTY IN A DOMESTIC PARTNERSHIP OR SIMILAR RELATION- SHIP WITH THE OTHER PERSON, ENTERED INTO PURSUANT TO THE LAWS OF THE UNITED STATES OR OF ANY STATE, LOCAL OR FOREIGN JURISDICTION, OR REGIS- TERED AS THE DOMESTIC PARTNER OF THE OTHER PERSON WITH ANY REGISTRY MAINTAINED BY THE EMPLOYER OF EITHER PARTY OR ANY STATE, MUNICIPALITY, OR FOREIGN JURISDICTION; OR (B) IS FORMALLY RECOGNIZED AS A BENEFICIARY OR COVERED PERSON UNDER THE OTHER PERSON'S EMPLOYMENT BENEFITS OR HEALTH INSURANCE; OR
(C) IS DEPENDENT OR MUTUALLY INTERDEPENDENT ON THE OTHER PERSON FOR SUPPORT, AS EVIDENCED BY THE TOTALITY OF THE CIRCUMSTANCES INDICATING A MUTUAL INTENT TO BE DOMESTIC PARTNERS INCLUDING BUT NOT LIMITED TO: COMMON OWNERSHIP OR JOINT LEASING OF REAL OR PERSONAL PROPERTY; COMMON HOUSEHOLDING, SHARED INCOME OR SHARED EXPENSES; CHILDREN IN COMMON; SIGNS OF INTENT TO MARRY OR BECOME DOMESTIC PARTNERS UNDER PARAGRAPH (A) OR (B) OF THIS SUBDIVISION; OR THE LENGTH OF THE PERSONAL RELATIONSHIP OF THE PERSONS. EACH PARTY TO A DOMESTIC PARTNERSHIP SHALL BE CONSIDERED TO BE THE DOMESTIC PARTNER OF THE OTHER PARTY. "DOMESTIC PARTNER" SHALL NOT INCLUDE A PERSON WHO IS RELATED TO THE OTHER PERSON BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE TO THE OTHER PERSON IN NEW YORK STATE. "DOMESTIC PARTNER" ALSO SHALL NOT INCLUDE ANY PERSON WHO IS LESS THAN EIGHTEEN YEARS OF AGE OR WHO IS THE ADOPTED CHILD OF THE OTHER PERSON OR WHO IS RELATED BY BLOOD IN A MANNER THAT WOULD BAR MARRIAGE IN NEW YORK STATE TO A PERSON WHO IS THE LAWFUL SPOUSE OF THE OTHER PERSON. S 8. Subdivision 1, paragraph (b) of subdivision 3 and subdivision 4 of section 2963 of the public health law, subdivisions 1 and 4 as added by chapter 818 of the laws of 1987 and paragraph (b) of subdivision 3 as amended by chapter 23 of the laws of 1994, are amended to read as follows: 1. Every adult shall be presumed to have the capacity to make a deci- sion regarding cardiopulmonary resuscitation unless determined otherwise pursuant to this section or pursuant to a court order[. A lack of capac- ity shall not be presumed from the fact that a committee of the property or conservator has been appointed for the adult pursuant to article seventy-seven or seventy-eight of the mental hygiene law, or that a guardian has been appointed pursuant to article seventeen-A of the surrogate's court procedure act] OR UNLESS A GUARDIAN IS AUTHORIZED TO DECIDE ABOUT HEALTH CARE FOR THE ADULT PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT. THE ATTENDING PHYSICIAN SHALL NOT RELY ON THE PRESUMP- TION STATED IN THIS SUBDIVISION IF CLINICAL INDICIA OF INCAPACITY ARE PRESENT. (b) If the attending physician [of a patient in a general hospital] determines that a patient lacks capacity because of mental illness, the concurring determination required by paragraph (a) of this subdivision shall be provided by a physician licensed to practice medicine in New York state, who is a diplomate or eligible to be certified by the Ameri- can Board of Psychiatry and Neurology or who is certified by the Ameri- can Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board. 4. Notice of a determination that the patient lacks capacity shall promptly be given (a) to the patient, where there is any indication of the patient's ability to comprehend such notice, together with a copy of a statement prepared in accordance with section twenty-nine hundred seventy-eight of this article, AND (b) to the person on the surrogate list highest in order of priority listed, when persons in prior subpara- graphs are not reasonably available[, and (c) if the patient is in or is transferred from a mental hygiene facility, to the facility director]. Nothing in this subdivision shall preclude or require notice to more than one person on the surrogate list. S 9. Subdivisions 3 and 4 of section 2964 of the public health law are REPEALED. S 10. Paragraph (a) of subdivision 2 of section 2965 of the public health law, as added by chapter 818 of the laws of 1987 and subpara-
graphs (i), (ii), (iii), (iv), (v) and (vi) as redesignated and such subdivision as renumbered by chapter 370 of the laws of 1991, is amended to read as follows: (a) One person from the following list, to be chosen in order of priority listed, when persons in the prior [subparagaphs] SUBPARAGRAPHS are not reasonably available, willing to make a decision regarding issu- ance of an order not to resuscitate, and competent to make a decision regarding issuance of an order not to resuscitate, shall have the authority to act as surrogate on behalf of the patient. HOWEVER, SUCH PERSON MAY DESIGNATE ANY OTHER PERSON ON THE LIST TO BE SURROGATE, PROVIDED NO ONE IN A HIGHER CLASS THAN THE PERSON DESIGNATED OBJECTS: (i) a [committee of the person or] GUARDIAN AUTHORIZED TO DECIDE ABOUT HEALTH CARE PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR a guardian OF A PERSON appointed [pursuant to] UNDER article seventeen-A of the surrogate's court procedure act, provided that this paragraph shall not be construed to require the appointment of a [committee of the person or] guardian for the purpose of making the resuscitation deci- sion; (ii) the spouse, IF NOT LEGALLY SEPARATED FROM THE PATIENT, OR THE DOMESTIC PARTNER; (iii) a son or daughter eighteen years of age or older; (iv) a parent; (v) a brother or sister eighteen years of age or older; and (vi) a close friend. S 11. Paragraph (c) of subdivision 4 and subdivision 5 of section 2965 of the public health law are REPEALED. S 12. Paragraph (d) of subdivision 4 of section 2965 of the public health law, as added by chapter 818 of the laws of 1987 and such subdi- vision as renumbered by chapter 370 of the laws of 1991, is amended to read as follows: [(d)] (C) If the attending physician has actual notice of opposition to a surrogate's consent to an order not to resuscitate by any person on the surrogate list[, or, if the patient is in or is transferred from a mental hygiene facility, by the facility director], the [phsyician] PHYSICIAN shall submit the matter to the dispute mediation system and such order shall not be issued or shall be revoked in accordance with the provisions of subdivision three of section twenty-nine hundred seventy-two of this article. S 13. Subdivision 2 of section 2966 of the public health law is REPEALED. S 14. Subdivision 3 of section 2966 of the public health law, as added by chapter 818 of the laws of 1987, is amended to read as follows: 3. Notwithstanding any other provision of this section, where a deci- sion to consent to an order not to resuscitate has been made, notice of the decision shall be given to the patient where there is any indication of the patient's ability to comprehend such notice[, except where a determination has been made pursuant to subdivision three of section twenty-nine hundred sixty-four of this article]. If the patient objects, an order not to resuscitate shall not be issued. S 15. Paragraph (c) of subdivision 2 of section 2967 of the public health law is REPEALED. S 16. Subdivision 1 of section 2970 of the public health law, as amended by chapter 370 of the laws of 1991, is amended to read as follows: 1. For each patient for whom an order not to resuscitate has been issued, the attending physician shall review the patient's chart to
determine if the order is still appropriate in light of the patient's condition and shall indicate on the patient's chart that the order has been reviewed[: (a) for a patient, excluding outpatients described in paragraph (b) of this subdivision and alternate level of care patients, in a hospital, other than a residential health care facility, at least every seven days; (b) for an outpatient whose order not to resuscitate is effective while the patient receives care in a hospital, each time the attending physician examines the patient, whether in the hospital or elsewhere, provided that the review need not occur more than once every seven days; and (c) for a patient in a residential health care facility or an alter- nate level of care patient in a hospital,] each time the patient is required to be seen by a physician but at least every sixty days. Failure to comply with this subdivision shall not render an order not to resuscitate ineffective. S 17. Section 2971 of the public health law is amended by adding a new subdivision 3 to read as follows: 3. FOR PURPOSES OF THIS SECTION, AN ORDER NOT TO RESUSCITATE ISSUED BY A GENERAL HOSPITAL AS DEFINED IN SUBDIVISION TEN OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER, OR BY A RESIDENTIAL HEALTH CARE FACILITY AS DEFINED IN SUBDIVISION THREE OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER, SHALL BE DEEMED A HOSPITAL ORDER NOT TO RESUSCITATE. S 18. Subdivision 2 of section 2972 of the public health law, as amended by chapter 370 of the laws of 1991, is amended to read as follows: 2. The dispute mediation system shall be authorized to mediate any dispute, including disputes regarding the determination of the patient's capacity, arising under this article between the patient and an attend- ing physician or the hospital that is caring for the patient and, if the patient is a minor, the patient's parent, or among an attending physi- cian, a parent, non-custodial parent, or legal guardian of a minor patient, any person on the surrogate list, AND the hospital that is caring for the patient [and, where the dispute involves a patient who is in or is transferred from a mental hygiene facility, the facility direc- tor]. S 19. Subdivision 1 of section 2973 of the public health law, as amended by chapter 577 of the laws of 1993, is amended to read as follows: 1. The patient, an attending physician, a parent, non-custodial parent, or legal guardian of a minor patient, any person on the surro- gate list, the hospital that is caring for the patient and[, in disputes involving a patient who is in or is transferred from a mental hygiene or correctional facility,] the facility director, may commence a special proceeding pursuant to article four of the civil practice law and rules, in a court of competent jurisdiction, with respect to any dispute aris- ing under this article, except that the decision of a patient not to consent to issuance of an order not to resuscitate may not be subjected to judicial review. In any proceeding brought pursuant to this subdivi- sion challenging a decision regarding issuance of an order not to resus- citate on the ground that the decision is contrary to the patient's wishes or best interests, the person or entity challenging the decision must show, by clear and convincing evidence, that the decision is contrary to the patient's wishes including consideration of the patient's religious and moral beliefs, or, in the absence of evidence of
the patient's wishes, that the decision is contrary to the patient's best interests. In any other proceeding brought pursuant to this subdi- vision, the court shall make its determination based upon the applicable substantive standards and procedures set forth in this article. S 20. Section 2977 of the public health law is REPEALED. S 21. Subdivision 1 of section 2978 of the public health law is REPEALED and subdivision 2, as added by chapter 818 of the laws of 1987, such section as renumbered by chapter 370 of the laws of 1991, is amended to read as follows: [2.] The commissioners of mental health and mental retardation and developmental disabilities[, in consultation with the commissioner of health,] shall establish such regulations as may be necessary for imple- mentation of this article with respect to those persons in mental hygiene facilities. S 22. The opening paragraph of subdivision 1 of section 2979 of the public health law, as added by chapter 818 of the laws of 1987, such section as renumbered by chapter 370 of the laws of 1991, is amended to read as follows: The [commissioner of health, after consultation with the] commission- ers of mental health and mental retardation and developmental disabili- ties[,] shall prepare a statement summarizing the rights, duties, and requirements of this article and shall require that a copy of such statement: S 23. Subdivisions 3 and 4 of section 2984 of the public health law, as added by chapter 752 of the laws of 1990, are amended and a new subdivision 5 is added to read as follows: 3. Notwithstanding subdivision two of this section, nothing in this article shall be construed to require a private hospital to honor an agent's health care decision that the hospital would not honor if the decision had been made by the principal because the decision is contrary to a formally adopted policy of the hospital that is expressly based on religious beliefs or sincerely held moral convictions central to the facility's operating principles and the hospital would be permitted by law to refuse to honor the decision if made by the principal, provided: (a) the hospital has informed the patient or the health care agent of such policy prior to or upon admission, if reasonably possible; and (b) the patient is transferred promptly to another hospital that is reasonably accessible under the circumstances and is willing to honor the agent's decision AND PENDING TRANSFER THE HOSPITAL COMPLIES WITH SUBDIVISION FIVE OF THIS SECTION. If the agent is unable or unwilling to arrange such a transfer, the hospital may intervene to facilitate such a transfer. If such a transfer is not effected, the hospital shall seek judicial relief IN ACCORDANCE WITH SECTION TWENTY-NINE HUNDRED NINETY-TWO OF THIS ARTICLE or honor the agent's decision. 4. Notwithstanding subdivision two of this section, nothing in this article shall be construed to require an individual as a health care provider to honor an agent's health care decision that the individual would not honor if the decision had been made by the principal because the decision is contrary to the individual's religious beliefs or sincerely held moral convictions, provided the individual health care provider promptly informs the health care agent and the hospital of his or her refusal to honor the agent's decision. In such event, the hospi- tal shall promptly transfer responsibility for the patient to another individual health care provider willing to honor the agent's decision. The individual health care provider shall cooperate in facilitating such
transfer of the patient AND COMPLY WITH SUBDIVISION FIVE OF THIS SECTION. 5. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION OR SUBDIVISION TWO OF SECTION TWENTY-NINE HUNDRED EIGHTY-NINE OF THIS ARTICLE, IF AN AGENT DIRECTS THE PROVISION OF LIFE-SUSTAINING TREATMENT, THE DENIAL OF WHICH IN REASONABLE MEDICAL JUDGMENT WOULD BE LIKELY TO RESULT IN THE DEATH OF THE PATIENT, A HOSPITAL OR INDIVIDUAL HEALTH CARE PROVIDER THAT DOES NOT WISH TO PROVIDE SUCH TREATMENT SHALL NONETHELESS COMPLY WITH THE AGENT'S DECISION PENDING EITHER TRANSFER OF THE PATIENT TO A WILLING HOSPITAL OR INDIVIDUAL HEALTH CARE PROVIDER, OR JUDICIAL REVIEW IN ACCORDANCE WITH SECTION TWENTY-NINE HUNDRED NINETY-TWO OF THIS ARTICLE. S 24. Section 2980 of the public health law is amended by adding a new subdivision 9-a to read as follows: 9-A. "LIFE-SUSTAINING TREATMENT" MEANS ANY MEDICAL TREATMENT OR PROCE- DURE WITHOUT WHICH THE PATIENT WILL DIE WITHIN A RELATIVELY SHORT TIME, AS DETERMINED BY AN ATTENDING PHYSICIAN TO A REASONABLE DEGREE OF MEDICAL CERTAINTY. FOR PURPOSES OF THIS ARTICLE, CARDIOPULMONARY RESUS- CITATION IS PRESUMED TO BE A LIFE SUSTAINING TREATMENT WITHOUT THE NECESSITY OF A DETERMINATION BY AN ATTENDING PHYSICIAN. S 25. Paragraph 8 of subdivision (a) of section 81.22 of the mental hygiene law, as amended by chapter 438 of the laws of 2004, is amended to read as follows: 8. [consent to or refuse generally accepted routine or major medical or dental treatment subject to the provisions of subdivision (e) of section 81.29 of this article dealing with life sustaining treatment; the guardian shall make treatment decisions consistent with the findings under section 81.15 of this article and in accordance with the patient's wishes, including the patient's religious and moral beliefs, or if the patient's wishes are not known and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including a consideration of the dignity and uniqueness of every person, the possi- bility and extent of preserving the person's life, the preservation, improvement or restoration of the person's health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the incapacitated person's circumstances would wish to consider] (I) FOR DECISIONS IN HOSPITALS AS DEFINED BY SUBDIVISION EIGHTEEN OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-A OF THE PUBLIC HEALTH LAW, ACT AS THE PATIENT'S SURROGATE PURSUANT TO AND SUBJECT TO ARTICLE TWENTY-NINE-CC OF THE PUBLIC HEALTH LAW, AND (II) IN ALL OTHER CIRCUMSTANCES, TO CONSENT TO OR REFUSE GENERALLY ACCEPTED ROUTINE OR MAJOR MEDICAL OR DENTAL TREATMENT, SUBJECT TO THE DECISION-MAKING STANDARD IN SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THE PUBLIC HEALTH LAW; S 26. Subdivision (e) of section 81.29 of the mental hygiene law is REPEALED. S 27. The opening paragraph and paragraphs (a) and (b) of subdivision 1 and the opening paragraph of subdivision 4 of section 1750-b of the surrogate's court procedure act, the opening paragraph of subdivision 1 as amended and paragraphs (a) and (b) of subdivision 1 as added by chap- ter 105 of the laws of 2007, the closing paragraph of paragraph (a) of subdivision 1 as amended by chapter 12 of the laws of 2009 and the open- ing paragraph of subdivision 4 as added by chapter 500 of the laws of 2002, are amended to read as follows: Unless specifically prohibited by the court after consideration of the determination, if any, regarding a mentally retarded person's capacity
to make health care decisions, which is required by section seventeen hundred fifty of this article, the guardian of such person appointed pursuant to section seventeen hundred fifty of this article shall have the authority to make any and all health care decisions, as defined by subdivision six of section twenty-nine hundred eighty of the public health law, on behalf of the mentally retarded person that such person could make if such person had capacity. Such decisions may include deci- sions to withhold or withdraw life-sustaining treatment[, as defined in subdivision (e) of section 81.29 of the mental hygiene law]. FOR PURPOSES OF THIS SECTION, "LIFE-SUSTAINING TREATMENT" MEANS MEDICAL TREATMENT, INCLUDING CARDIOPULMONARY RESUSCITATION AND NUTRITION AND HYDRATION PROVIDED BY MEANS OF MEDICAL TREATMENT, WHICH IS SUSTAINING LIFE FUNCTIONS AND WITHOUT WHICH, ACCORDING TO REASONABLE MEDICAL JUDG- MENT, THE PATIENT WILL DIE WITHIN A RELATIVELY SHORT TIME PERIOD. CARDIOPULMONARY RESUSCITATION IS PRESUMED TO BE LIFE-SUSTAINING TREAT- MENT WITHOUT THE NECESSITY OF A MEDICAL JUDGMENT BY AN ATTENDING PHYSI- CIAN. The provisions of this article are not intended to permit or promote suicide, assisted suicide or euthanasia; accordingly, nothing in this section shall be construed to permit a guardian to consent to any act or omission to which the mentally retarded person could not consent if such person had capacity. (a) For the purposes of making a decision to withhold or withdraw life-sustaining treatment pursuant to this section, in the case of a person for whom no guardian has been appointed pursuant to section seventeen hundred fifty or seventeen hundred fifty-a of this article, a "guardian" shall also mean a family member of a person who (i) has mental retardation, or (ii) has a developmental disability, as defined in section 1.03 of the mental hygiene law, which (A) includes mental retardation, or (B) results in a similar impairment of general intellec- tual functioning or adaptive behavior so that such person is incapable of managing himself or herself, and/or his or her affairs by reason of such developmental disability. Qualified family members shall be included in a prioritized list OF SAID FAMILY MEMBERS pursuant to regu- lations established by the commissioner of mental retardation and devel- opmental disabilities. Such family members must have a significant and ongoing involvement in a person's life so as to have sufficient know- ledge of their needs and, when reasonably known or ascertainable, the person's wishes, including moral and religious beliefs. IN THE CASE OF A PERSON WHO WAS A RESIDENT OF THE FORMER WILLOWBROOK STATE SCHOOL ON MARCH SEVENTEENTH, NINETEEN HUNDRED SEVENTY-TWO AND THOSE INDIVIDUALS WHO WERE IN COMMUNITY CARE STATUS ON THAT DATE AND SUBSEQUENTLY RETURNED TO WILLOWBROOK OR A RELATED FACILITY, WHO ARE FULLY REPRESENTED BY THE CONSUMER ADVISORY BOARD AND WHO HAVE NO GUARDIANS APPOINTED PURSUANT TO THIS ARTICLE OR HAVE NO QUALIFIED FAMILY MEMBERS TO MAKE SUCH A DECI- SION, THEN A "GUARDIAN" SHALL ALSO MEAN THE WILLOWBROOK CONSUMER ADVI- SORY BOARD. A decision of such family member OR THE WILLOWBROOK CONSUMER ADVISORY BOARD to withhold or withdraw life-sustaining treatment shall be subject to all of the protections, procedures and safeguards which apply to the decision of a guardian to withhold or withdraw life-sus- taining treatment pursuant to this section. In the case of a person for whom no guardian has been appointed pursu- ant to this article or for whom there is no qualified family member OR THE WILLOWBROOK CONSUMER ADVISORY BOARD available to make such a deci- sion, a "guardian" shall also mean, notwithstanding the definitions in section 80.03 of the mental hygiene law, a surrogate decision-making committee, as defined in article eighty of the mental hygiene law. All
declarations and procedures, including expedited procedures, to comply with this section shall be established by regulations promulgated by the commission on quality of care and advocacy for persons with disabili- ties. (b) Regulations establishing the prioritized list OF QUALIFIED FAMILY MEMBERS required by paragraph (a) of this subdivision shall be developed by the commissioner of mental retardation and developmental disabilities in conjunction with parents, advocates and family members of persons who are mentally retarded. REGULATIONS TO IMPLEMENT THE AUTHORITY OF THE WILLOWBROOK CONSUMER ADVISORY BOARD PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION MAY BE PROMULGATED BY THE COMMISSIONER OF THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES WITH ADVICE FROM THE WILLOWBROOK CONSUMER ADVISORY BOARD. The guardian shall have the affirmative obligation to advocate for the full and efficacious provision of health care, including life-sustaining treatment [as defined in subdivision (e) of section 81.29 of the mental hygiene law]. In the event that a guardian makes a decision to withdraw or withhold life-sustaining treatment from a mentally retarded person: S 28. Issues to be considered by the task force on life and the law; special advisory committee. The New York state task force on life and the law (referred to in this section as the "task force"), a body created by executive order number 56 (issued December 20, 1984), shall consider and make regulatory and statutory recommendations relating to the family health care decisions act (article 29-CC of the public health law, referred to in this section as the "FHCDA"), including the follow- ing: 1. The task force shall consider whether the FHCDA should be amended to incorporate procedures, standards and practices for decisions about the withdrawal or withholding of life-sustaining treatment from patients with mental illness or mental retardation or developmental disabilities, and from patients residing in mental health facilities. The task force shall form a special advisory committee to advise the task force in its work under this subdivision. The special advisory committee shall consist of six task force members, selected by the chair of the task force, three persons selected by the commissioner of the office of mental health, and three persons selected by the commissioner of the office of mental retardation and developmental disabilities. The special advisory committee shall solicit comments from a broader range of inter- ested persons. 2. The task force shall consider whether the FHCDA should be amended to apply to health care decisions in settings other than general hospi- tals and residential health care facilities. S 29. This act shall take effect immediately; provided that sections one through twenty-six of this act shall take effect on the first of June next succeeding the date on which this act shall have become a law; and provided further that effective immediately it shall be lawful for a hospital, as defined in subdivision 18 of section 2994-a of the public health law, as added by this act to adopt a policy that is consistent with the requirements of article 29-CC of the public health law as added by section two of this act or the mental hygiene law as amended by sections twenty-five and twenty-six of this act and for a health care provider to accept and carry out a health care decision in accordance with such requirements for a patient in a hospital that has adopted such policy.

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