S5014A-2011 - NY Senate Open Legislation - Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal

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.

Sponsor: DEFRANCISCO
Law Section: Public Health Law / Law: Amd SS2981 & 2983, Pub Health L

S5014A-2011 Actions

Jun 21, 2012: SUBSTITUTED BY A8389
Jun 11, 2012: ADVANCED TO THIRD READING
Jun 6, 2012: 2ND REPORT CAL.
Jun 5, 2012: 1ST REPORT CAL.1081
Jan 4, 2012: REFERRED TO HEALTH
Jun 24, 2011: COMMITTED TO RULES
Jun 14, 2011: ADVANCED TO THIRD READING
Jun 13, 2011: 2ND REPORT CAL.
Jun 7, 2011: 1ST REPORT CAL.1133
May 25, 2011: PRINT NUMBER 5014A
May 25, 2011: AMEND AND RECOMMIT TO HEALTH
May 2, 2011: REFERRED TO HEALTH

S5014A-2011 Meetings

Health: Jun 5, 2012, Health: Jun 7, 2011

S5014A-2011 Calendars

S5014A-2011 Votes

VOTE: COMMITTEE VOTE: - Health - Jun 7, 2011

Ayes (12): Hannon, Ball, Farley, Fuschillo, Golden, Larkin, McDonald, Seward, Young, Montgomery, Smith, Stewart-Cousins
Ayes W/R (5): Duane, Adams, Gianaris, Kruger, Rivera

VOTE: COMMITTEE VOTE: - Health - Jun 5, 2012

Ayes (12): Hannon, Ball, Fuschillo, Golden, Larkin, McDonald, Seward, Young, Duane, Montgomery, Rivera, Stewart-Cousins
Ayes W/R (3): Adams, Gianaris, Peralta
Excused (2): Farley, Smith

S5014A-2011 Memo

BILL NUMBER:S5014A

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
non-responsive 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:
None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

S5014A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 5014--A
 2011-2012 Regular Sessions
 I N  SENATE
 May 2, 2011
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
 when printed to be committed to the Committee on Health  --  committee
 discharged, bill amended, ordered reprinted as amended and recommitted
 to said committee
 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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD11239-02-1
        S. 5014--A                          2
 another physician to confirm such determination. Such consultation shall
 also be included within the patient's medical record.  NO  DETERMINATION
 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.

S5014A-2011: Relates to the authority of an agent to act outside a hospital setting to make certain decisions regarding the transport of the principal