S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9647

                          I N  A S S E M B L Y

                              May 14, 2014
                               ___________

Introduced by M. of A. CLARK, GOTTFRIED -- read once and referred to the
  Committee on Health

AN  ACT to amend the public health law, in relation to making technical,
  minor and coordinating amendments regarding  health  care  agents  and
  proxies,  decisions  under  the  family health care decisions act, and
  non-hospital orders not to resuscitate

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Subdivisions 4 and 10 of section 2980 of the public health
law, subdivision 4 as added by chapter 752 of the laws of 1990, subdivi-
sion 10 as amended by chapter 23 of the laws of 1994, are amended and  a
new subdivision 8-a is added to read as follows:
  4. "Health care" means any treatment, service or procedure to diagnose
or  treat an individual's physical or mental condition. PROVIDING NUTRI-
TION OR HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS  NOT
HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE.
  8-A.  "HEALTH  OR  SOCIAL  SERVICES  PRACTITIONER"  MEANS A REGISTERED
PROFESSIONAL NURSE, NURSE PRACTITIONER, PHYSICIAN, PHYSICIAN  ASSISTANT,
PSYCHOLOGIST,  LICENSED MASTER SOCIAL WORKER OR LICENSED CLINICAL SOCIAL
WORKER, LICENSED OR CERTIFIED PURSUANT TO THE EDUCATION LAW ACTING WITH-
IN HIS OR HER SCOPE OF PRACTICE.
  10. "Mental hygiene facility" means a residential facility,  excluding
family  care  homes, operated or licensed by the office of mental health
or the office [of mental retardation and] FOR PEOPLE WITH  developmental
disabilities.
  S  2.  Paragraph  (b)  of  subdivision 1 of section 2981 of the public
health law, as added by chapter 752 of the laws of 1990, is  amended  to
read as follows:
  (b)  For  the  purposes of this section, every adult shall be presumed
competent to appoint a health care agent unless  such  person  has  been
adjudged  incompetent  or  otherwise adjudged not competent to appoint a
health care agent, or unless a [committee or] guardian of the person has
been appointed for the adult pursuant to article [seventy-eight]  EIGHT-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13618-01-4
              

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Y-ONE  of  the  mental  hygiene law or article seventeen-A of the surro-
gate's court procedure act.
  S  3.  Subdivision  2  of  section  2982  of the public health law, as
amended by chapter 230 of the laws  of  2004,  is  amended  to  read  as
follows:
  2. Decision-making standard. After consultation with a licensed physi-
cian,  registered  nurse,  PHYSICIAN  ASSISTANT,  licensed psychologist,
licensed master social worker, or a licensed clinical social worker, the
agent shall make health care decisions: (a) in accordance with the prin-
cipal's wishes, including the principal's religious and  moral  beliefs;
or  (b)  if  the  principal's wishes are not reasonably known and cannot
with reasonable diligence be ascertained, in accordance with the princi-
pal's best interests; provided, however, that if the principal's  wishes
regarding  the  administration of artificial nutrition and hydration are
not reasonably known and cannot  with  reasonable  diligence  be  ascer-
tained, the agent shall not have the authority to make decisions regard-
ing these measures.
  S  4. Subdivision 3 of section 2983 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  3. Notice of determination. Notice of a determination that a principal
lacks capacity to make health care decisions shall  promptly  be  given:
(a)  to  the  principal, orally and in writing, where there is any indi-
cation of the principal's ability to comprehend such notice; (b) to  the
agent;  AND  (c)  if the principal is in or is transferred from a mental
hygiene facility, to the facility director[; and (d) to the  conservator
for, or committee of, the principal].
  S  5. Subdivision 2 of section 2991 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  2. Such procedures shall be established in accordance with regulations
issued by the commissioners of health, mental health, and [mental retar-
dation and] developmental disabilities for facilities subject  to  their
respective regulatory authorities.
  S  6.  The opening paragraph of section 2992 of the public health law,
as added by chapter 752 of the laws of  1990,  is  amended  to  read  as
follows:
  The health care provider, the [conservator for, or committee] GUARDIAN
of  the  principal UNDER ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW OR
ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT,  members  of
the  principal's  family,  a close friend of the principal as defined in
subdivision [five] FOUR  of  section  [two  thousand  nine]  TWENTY-NINE
hundred  [sixty-one]  NINETY-FOUR-A of this chapter, or the commissioner
[of health], THE COMMISSIONER OF mental health, or  [mental  retardation
and]  THE  COMMISSIONER  OF  developmental  disabilities  may commence a
special proceeding pursuant to article four of the  civil  practice  law
and  rules,  in  a  court of competent jurisdiction, with respect to any
dispute arising under this article, including, but  not  limited  to,  a
proceeding to:
  S 7. Section 2993 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
  S  2993.  Regulations.  The  commissioner [of health], in consultation
with the commissioners of [the office of] mental health and [the  office
of  mental  retardation and] developmental disabilities, shall establish
such regulations as may be necessary  for  the  implementation  of  this
article,  subject  to  the provisions of subdivision two of section [two
thousand nine] TWENTY-NINE hundred ninety-one of this article.

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  S 8. Subdivisions 17, 20 and 26 of section 2994-a of the public health
law, as added by chapter 8 of the laws of 2010, are amended to  read  as
follows:
  17.  "Health or social [service] SERVICES practitioner" means a regis-
tered  professional  nurse,  nurse  practitioner,  physician,  physician
assistant, psychologist, LICENSED MASTER SOCIAL WORKER or licensed clin-
ical  social worker, licensed or certified pursuant to the education law
acting within his or her scope of practice.
  20. "Mental hygiene facility" means a facility operated or licensed by
the office of mental health or the office [of  mental  retardation  and]
FOR PEOPLE WITH developmental disabilities as defined in subdivision six
of section 1.03 of the mental hygiene law.
  26.  "Person connected with the case" means the patient, any person on
the surrogate list, a parent or guardian of a  minor  patient,  [the]  A
hospital  administrator,  an  attending  physician,  any other health or
social services practitioner who is or has been directly involved in the
patient's care, and any duly  authorized  state  agency,  including  the
facility  director or regional director for a patient transferred from a
mental hygiene facility and the facility director for a  patient  trans-
ferred from a correctional facility.
  S  9.  The  opening  paragraph  and  paragraph (a) of subdivision 3 of
section 2994-b of the public health law, as added by chapter  8  of  the
laws of 2010, are amended to read as follows:
  Prior to seeking or relying upon a health care decision by a surrogate
for  a patient under this article, if the attending physician 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] PROCEDURE act and  not  by
this article.
  S  10.  Paragraph (b) of subdivision 3 of section 2994-e of the public
health law, as added by chapter 8 of the laws of  2010,  is  amended  to
read as follows:
  (b) If the hospital can with reasonable efforts ascertain the identity
of the parents or guardian of an emancipated minor patient, the hospital
shall  MAKE DILIGENT EFFORTS TO notify such persons prior to withholding
or withdrawing life-sustaining treatment pursuant to this subdivision.
  S 11. Subparagraph (iv) of paragraph (b) of subdivision 4  of  section
2994-m  of  the  public health law, as added by chapter 8 of the laws of
2010, is amended to read as follows:
  (iv)  Following  ethics  review  committee  consideration  of  a  case
concerning  the  withdrawal or withholding of life-sustaining treatment,
treatment shall not be withdrawn or withheld until  THE  HOSPITAL  MAKES
DILIGENT  EFFORTS TO INFORM the persons identified in subparagraph (iii)
of this paragraph [have been informed] of the  committee's  response  to
the case.
  S  12.  Subdivision  2  of section 2994-t of the public health law, as
added by chapter 8 of the laws of 2010, is amended to read as follows:

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  2. The commissioner, in consultation with the  commissioners  of  [the
office  of]  mental  health  and  [the office of mental retardation and]
developmental disabilities, shall promulgate regulations identifying the
credentials of health care professionals qualified to provide  an  inde-
pendent  determination, pursuant to subdivision three of section twenty-
nine hundred ninety-four-c of this article, that a patient  lacks  deci-
sion-making   capacity   because  of  mental  illness  or  developmental
disability.
  S 13. Section 2994-u of the public health law, as added by  chapter  8
of the laws of 2010, is amended to read as follows:
  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] A PATIENT or to [persons on] the surrogate [list known to the
hospital],  or  to  the  [parents  or guardians] PARENT OR GUARDIAN of A
minor [patients] PATIENT, at or prior to admission to the  hospital,  or
within  a  reasonable time thereafter, and to [each member of the hospi-
tal's staff directly involved with  patient  care]  ANY  PERSON  ON  THE
SURROGATE  LIST WHO REQUESTS A COPY OF SUCH STATEMENT FROM THE HOSPITAL.
THE STATEMENT SHALL ALSO BE MADE  AVAILABLE  TO  THE  HOSPITAL  CLINICAL
STAFF.
  S  14. The commissioner of health shall revise the statement of rights
that hospitals are required to post (known  as  the  Patient's  Bill  of
Rights)  pursuant  to  paragraph (g) of subdivision 1 of section 2803 of
the public health law, by replacing the clause regarding orders  not  to
resuscitate  with  a  statement  that more generally informs patients of
their right to receive  from  the  hospital  upon  admission,  and  upon
request,  a  more  complete  statement  of  their rights with respect to
deciding about health care, including appointing a  health  care  agent,
consenting to do-not-resuscitate orders and making other life-sustaining
treatment  decisions. The clause should also state in substance that the
hospital will also provide such statement upon  request  to  any  family
member or friend of a patient who lacks decision-making capacity.
  S  15.  Subdivisions 12 and 13 of section 2994-aa of the public health
law, subdivision 12 as added by chapter 8 of the laws of 2010 and subdi-
vision 13 as amended  by chapter 167 of the laws of  2011,  are  amended
and a new subdivision 14-a is added to read as follows:
  12. "Mental hygiene facility" means a residential facility operated or
licensed  by the office of mental health [or the office of mental retar-
dation and developmental disabilities].
  13. "Nonhospital order not to resuscitate" means an order that directs
emergency medical  services  personnel,  hospice  personnel,  HOME  CARE
SERVICES  AGENCY  PERSONNEL, SCHOOL HEALTH PERSONNEL, and hospital emer-
gency services personnel not to attempt cardiopulmonary resuscitation in
the event a patient suffers cardiac or respiratory arrest.
  14-A. "SCHOOL HEALTH PERSONNEL" MEANS A SCHOOL-BASED PHYSICIAN, NURSE,
PHYSICIAN ASSISTANT OR NURSE PRACTITIONER.
  S 16. Paragraph (a) of subdivision 1 of section 2994-bb of the  public
health  law,  as  added  by chapter 8 of the laws of 2010, is amended to
read as follows:
  (a) Emergency medical services personnel, home  care  services  agency
personnel,  hospice  personnel,  SCHOOL  HEALTH  PERSONNEL, and hospital
emergency services personnel  shall  honor  nonhospital  orders  not  to
resuscitate,  except  as provided in section twenty-nine hundred ninety-
four-ee of this article.

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  S 17. Subdivisions 2 and 6 of section 2994-dd  of  the  public  health
law,  subdivision 2 as added by chapter 8 of the laws of 2010 and subdi-
vision 6 as amended by section 10 of part J of chapter 56 of the laws of
2012, are amended to read as follows:
  2. A nonhospital order not to resuscitate shall be issued upon a stan-
dard  form  prescribed by the commissioner. [The commissioner shall also
develop a] A standard bracelet [that] OR OTHER ARTICLE may be worn by  a
patient  with  a  nonhospital  order not to resuscitate to identify that
status; provided, however, that no person may require a patient to  wear
such  a  bracelet  OR  OTHER  ARTICLE  and  that no person may require a
patient to wear such a bracelet OR OTHER  ARTICLE  as  a  condition  for
honoring  a nonhospital order not to resuscitate or for providing health
care services.
  6. The commissioner may authorize the use of one or  more  alternative
forms  for  issuing  a nonhospital order not to resuscitate (in place of
the standard form prescribed by the commissioner under  subdivision  two
of  this  section).  Such  alternative form or forms may also be used to
issue a non-hospital do not intubate order. Any such  alternative  forms
intended  for use for persons with developmental disabilities or persons
with mental illness who are incapable of making their  own  health  care
decisions  or  who  have  a guardian of the person appointed pursuant to
article eighty-one of the mental hygiene law or article  seventeen-A  of
the surrogate's court procedure act must also be approved by the commis-
sioner  of  developmental  disabilities  or  the  commissioner of mental
health, as appropriate. An alternative form under this subdivision shall
otherwise conform with applicable federal and state law.  This  subdivi-
sion  does  not limit, restrict or impair the use of an alternative form
for issuing an order not to resuscitate in a general hospital  or  resi-
dential  health care facility under article twenty-eight of this chapter
or a hospital under subdivision  ten  of  section  1.03  of  the  mental
hygiene  law  OR  A  DEVELOPMENTAL  DISABILITIES  SERVICES  OFFICE UNDER
SECTION 13.17 OF THE MENTAL HYGIENE LAW.
  S 18. Section 2994-gg of the public health law, as added by chapter  8
of the laws of 2010, is amended to read as follows:
  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] ARTICLE a  nonhospital  order  not  to  resuscitate,  for
disregarding a nonhospital order pursuant to section twenty-nine hundred
ninety-four-ee  of  this  article, or for other actions taken reasonably
and in good faith pursuant to this [section] ARTICLE.
  S 19. This act shall take effect on the ninetieth day after  it  shall
have  become  a law, provided that the amendments to article 29-C of the
public health law shall apply to decisions made pursuant to health  care
proxies created prior to the effective date of this act as well as those
created thereafter.