Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal to a particular medical setting when such principal is unconscious or unresponsive.
Ayes (59): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (4): Adams, Ranzenhofer, Ritchie, Sampson
TITLE OF BILL: An act to amend the public health law, in relation to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal to a particular medical setting when such principal is unconscious or unresponsive
PURPOSE: To remove the prerequisite of an attending physician to determine the principal's decisional incapacity when the principal is outside a hospital, mental hygiene facility or residential health care facility and authorize the agent to make decisions for transport to a particular hospital, mental hygiene facility or residential health care facility when the principal is unconscious or unresponsive and there is no major medical trauma.
SUMMARY OF PROVISIONS:
Section 1 amends section 2981 of the public health law's to allow a health care agent's authority to commence if the principle is not found within a hospital, mental hygiene facility or residential health care facility and is in an unconscious or unresponsive state.
Section 2 amends section 2982 of the public health law to allow health care agents to make decisions on behalf of principals, limited to placement in a hospital, mental hygiene facility, residential health care facility or the choice of provider, when the principal is unconscious or unresponsive and is not found within a hospital, mental hygiene facility or residential healthcare facility, without consultation with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or licensed clinical social worker.
Section 3 amends section 2983 of the public health law to allow that no determination by the physician be required, where the principal is found outside of a hospital, mental hygiene facility or residential health care facility and is unconscious or unresponsive as there shall be a presumption of incapacity for limited purposes of empowering the health care agent to make health care decisions in regard to the principal's placement in a hospital, mental hygiene facility, residential health care facility or choosing a health care provider.
Section 4 Establishes the effective date.
JUSTIFICATION: Many senior citizens and legal practitioners believe that a properly prepared and executed health care proxy can be used immediately when the need arises. In particular, many legal practitioners counsel, and seniors believe that the health care agent's authority to act is comprehensive in all settings, including outside of a hospital or other medical health facility. However, recently, a federal court decision in Stein vs. County of Nassau, et al. (Eastern District, (06-cv-5522-JS-WDW) 7/23/09) outlined, inter alia, the limitations on the authority of a health care agent authority to make decisions,
including the decision to transport the principal to a particular hospital or other medical institutional setting, when that decision is made outside of a hospital setting. The federal court held that if the principal is nonresponsive and not in major medical trauma, the health care proxy is valid outside of a hospital and institution but that PHL section 2982 imposes restrictions on the agent's health care decision making authority. Specifically, that there is a procedural requirement that the Agent first consult with one of the listed professionals in the statute before a health care decision, including transport to a particular medical facility, may be made.
LEGISLATIVE HISTORY: S.5014A/A.8389 - Vetoed
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 2908 2013-2014 Regular Sessions IN SENATE January 24, 2013 ___________Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal to a particular medical setting when such principal is unconscious or unresponsive THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 4 of section 2981 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows: 4. Commencement of agent's authority. The agent's authority shall commence upon a determination, made pursuant to subdivision one of section two thousand nine hundred eighty-three of this article, that the principal lacks capacity to make health care decisions OR IF THE PRINCI- PAL IS NOT FOUND WITHIN A HOSPITAL, MENTAL HYGIENE FACILITY OR RESIDEN- TIAL HEALTH CARE FACILITY AND IS IN AN UNCONSCIOUS OR UNRESPONSIVE STATE. S 2. Paragraph (a) of subdivision 1 of section 2983 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows: (a) A determination that a principal lacks capacity to make health care decisions shall be made by the attending physician to a reasonable degree of medical certainty. The determination shall be made in writing and shall contain such attending physician's opinion regarding the cause and nature of the principal's incapacity as well as its extent and prob- able duration. The determination shall be included in the patient's medical record. For a decision to withdraw or withhold life-sustaining treatment, the attending physician who makes the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination. Such consultation shall also be included within the patient's medical record. NO DETERMINATIONEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06391-01-3 S. 2908 2
BY THE PHYSICIAN SHALL BE REQUIRED WHERE THE PRINCIPAL IS FOUND OUTSIDE OF A HOSPITAL, MENTAL HYGIENE FACILITY OR RESIDENTIAL HEALTH CARE FACIL- ITY AND THE PRINCIPAL IS UNCONSCIOUS OR UNRESPONSIVE AS THERE SHALL BE A PRESUMPTION OF INCAPACITY FOR THE LIMITED PURPOSE OF EMPOWERING THE HEALTH CARE AGENT TO MAKE HEALTH CARE DECISIONS IN REGARD TO THE CHOICE OF WHICH HOSPITAL, MENTAL HYGIENE FACILITY, OR RESIDENTIAL HEALTH CARE PROVIDER WHERE THE PRINCIPAL SHOULD BE TRANSPORTED. S 3. This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amend- ment and/or repeal of any rules or regulations necessary for the imple- mentation of this act on its effective date are authorized to be made on or before such effective date.