NY State Senate Bill 2015-S4791

Senate Bill S4791

2015-2016 Legislative Session

Relates to health care agents, decisions under the family care decisions act and nonhospital orders not to resuscitate

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 04, 2015	recommit, enacting clause stricken
Apr 17, 2015	referred to health

2015-S4791 (ACTIVE) - Details

See Assembly Version of this Bill:: A6936
Law Section:: Public Health Law
Laws Affected:: Amd Pub Health L, generally
Versions Introduced in 2013-2014 Legislative Session:: S7151, A9647

2015-S4791 (ACTIVE) - Summary

Relates to health care agents and proxies, decisions under the family health care decisions act and non-hospital orders not to resuscitate.

2015-S4791 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4791

TITLE OF BILL:  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 nonhospital orders not to resuscitate

PURPOSE:  This is one of a series of seven bills, informally referred
to as the "Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8,
Laws of 2010) and other laws that govern health care decisions,
including life-sustaining treatment decisions, for patients who lack
decision-making capacity. This bill makes technical changes to the
FHCDA and other laws.

SUMMARY OF PROVISIONS:  This is one of a series of seven bills,
informally referred to as the "Surrogate Decision-Making Improvement
Acts." The bills make technical/minor, clarifying and coordinating
amendments and other improvements to the NYS laws that govern health
care decisions, including life-sustaining treatment decisions, for
patients who lack decision-making capacity. The SDMIAs address these
topics:

*SDMIA 1 Technical / Minor Amendments

*SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients
in Mental Hygiene Facilities

*SDMIA 3 Determining Patient Incapacity

*SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition
and Hydration

*SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision

*SDMIA 6 Restore Medical Futility as a Basis for a DNR Order

*SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally
Disabled Persons

This bill, SDMIA 1, makes technical, minor and coordinating amendments
to the Family Health Care Decisions Act (Chapter 8 of the Laws of 2010
- FHCDA) and related laws.

Section 1 amends PHL § 2980, subdivs. 4 and 10: to clarify that the
provision of nutrition and hydration orally, without reliance on
medical treatment, is not "health care" within the meaning of the
article, as stated in the Family Health Care Decisions Act (FHCDA);
and to substitute the name, "office for people with developmental
disabilities" (hereinafter OPWDD) for the former name, office of
mental retardation and developmental disabilities" (hereinafter,
OMRDD).

Section 2 amends PHL § 2981(b) to delete the outdated term "committee"
and to insert the correct reference to MHL Article 81.


Section 3 amends PHL § 2982(2) to add "physician assistant and nurse
practitioner" to the list of professionals, one of whom an agent must
consult with before making a decision.

Section 4 amends PHL § 2983(3) to replace outdated references to "the
conservator for, or committee of a principal with a reference to "the
guardian, if any, for the principal."

Section 5 amends PHL § 2991 (2) to substitute OPWDD for OMRDD.

Section 6 amends PHL § 2992 to replace outdated references, including
changing "the conservator for, or committee of a principal with the
correct reference to "the guardian" of the principal

Section 7 amends § 2993 to substitute OPWDD for OMRDD.

Section 8 amends three subdivisions in PHL § 2994-a (Definitions):
Amends "Health or social services practitioner" to include "licensed
master social worker." Substitutes OPWDD for OMRDD. Changes "the
hospital administrator" to "a hospital administrator "

Section 9 amends PHL § 2994-b(3)(a) to change "mental retardation or a
developmental disability" to "a developmental disability." Corrects a
spelling error.

Section 10 amends PHL § 2994-e to clarify that the obligation a
hospital has to notify the parents or guardian of an emancipated minor
is to make "diligent efforts" to notify such persons, and to require
documentation of the basis for the determination of emancipation and
capacity, and thof the diligent efforts.

Section 11 amends PHL § 2994-m(4)(b)(iv) to clarify that the
obligation an ethics committee has to notify certain persons is to
make "diligent efforts" to notify such persons, and to document such
efforts, Section 20 amends PHL § 2994-t(2) to substitute OPWDD for
OMRDD.

Section 12 amends PHL § 2994-t to correct references to the
commissioners of OMH and OPWDD.

Section 13 amends PHL § 2994-u to direct the commissioner of health to
require that a copy of the statement of rights under this article be
furnished "to a patient or to the surrogate, or to the parent or
guardian of a minor patient, at or prior to admission to the hospital,
or within a reasonable time thereafter, and to 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."

Section 14 directs the commissioner of health to revise the statement
of rights that hospitals are required to post (known as the Patient's
Bill of Rights) by replacing the clause regarding orders not to
resuscitate with a statement about a broader range health care
decision-making rights.

Section 15 amends § 2994-aa subdivisions 12 and 13 and adds 14-a to,
substitute OPWDD for OMRDD, to provide that a nonhospital order not to


resuscitate also applies to home care services agency personnel and
school health personnel, and to define "school health personnel.

Section 16 amends PHL § 2994-bb(1)(a) to make the nonhospital DNR
provisions applicable to school health personnel.

Section 17 amends § 2994-dd(2) to delete a reference to the
commissioner's obligation to develop a standard DNR bracelet, and to
refer to a standard bracelet "or other article", and amends
2994-dd.6 to allow alternate forms for nonhospital DNR orders in
developmental disability services offices.

Section 18 amends PHL § 2994-gg to substitute the word "article" for
the word "section" in two places. Section 19 is the effective date
ninety days after it becomes a law.

JUSTIFICATION:  This bill amends the Family Health Care Decisions Act
(Ch 8. Laws of 2010) (FHCDA). It makes technical, minor and
coordinating amendments to related laws.

LEGISLATIVE HISTORY: S.7151-A of 2014

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect ninety days after the date
on which this act shall have become a law. The amendments to article
29-C of the public health law shall apply to decisions made pursuant
to health care proxies created prior to this act becoming law as well
as those created thereafter.

2015-S4791 (ACTIVE) - Bill Text download pdf

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

                                  4791

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 17, 2015
                               ___________

Introduced  by  Sen.  HANNON -- 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 making  technical,
  minor  and  coordinating  amendments  regarding health care agents and
  proxies, decisions under the family health  care  decisions  act,  and
  nonhospital 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 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.
  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-
Y-ONE  of  the  mental  hygiene law or article seventeen-A of the surro-
gate's court procedure act.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08687-01-5

S. 4791                             2

  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,  NURSE  PRACTITIONER,
licensed psychologist, licensed master  social  worker,  or  a  licensed
clinical  social worker, the agent shall make health care decisions: (a)
in accordance with the principal'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 principal'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 reason-
able diligence be ascertained, the agent shall not have the authority to
make decisions regarding 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; (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] GUARDIAN, IF ANY.
  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  amended  by  chapter  93  of the laws of 2014, is amended to read as
follows:
  The health care provider[, the conservator for, or committee]  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 prin-
cipal's family, a close friend of the principal as defined  in  subdivi-
sion  [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 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  compe-
tent  jurisdiction, with respect to any dispute arising under this arti-
cle, 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.
  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:

S. 4791                             3

  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. Paragraphs (a) and (b) of subdivision 3 of section 2994-e of the
public health law, as added by chapter  8  of  the  laws  of  2010,  are
amended to read as follows:
  (a)  If an attending physician determines that a patient is an emanci-
pated minor patient with  decision-making  capacity  AND  DOCUMENTS  THE
BASIS  FOR  SUCH  DETERMINATION  IN  THE  PATIENT'S  MEDICAL RECORD, the
patient shall have the authority to decide about life-sustaining  treat-
ment.  Such  authority  shall include a decision to withhold or withdraw
life-sustaining 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 decision.
  (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, AND DOCUMENT SUCH
DILIGENT EFFORTS IN THE PATIENT'S MEDICAL RECORD, 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:

S. 4791                             4

  (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 AND DOCUMENTS SUCH DILIGENT EFFORTS IN  THE  PATIENT'S  MEDICAL
RECORD.
  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:
  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 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 and hospital emergency services personnel  not
to  attempt cardiopulmonary resuscitation in the event a patient suffers
cardiac or respiratory arrest.
  S 16. 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-

S. 4791                             5

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 17. 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 18. 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.

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