Bill S7151A-2013

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

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

Details

Actions

  • Jun 16, 2014: PRINT NUMBER 7151A
  • Jun 16, 2014: AMEND AND RECOMMIT TO HEALTH
  • May 1, 2014: REFERRED TO HEALTH

Memo

BILL NUMBER:S7151A

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 non-hospital orders not to resuscitate

PURPOSE OF GENERAL IDEA OF BILL: 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 SPECIFIC PROVISIONS:

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Section 2 amends PHL § 2981(b) to delete the outdated term "committee" and to insert the correct reference to MHL Article 81.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Section 4 amends PHL § 2983(4) to replace outdated references to "the conservator for, or committee of" a principal with a reference to "the guardian, if any, for the principal."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 to substitute OPWDD for OMRDD.

Section 6 amends PHL § 2992 to replace outdated references to "the conservator for, or committee of a principal with the correct reference to "the guardian" of the principal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

PRIOR LEGISLATIVE HISTORY: 2013: A.7371 reported referred to codes

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 7151--A IN SENATE May 1, 2014 ___________
Introduced by Sen. HANNON -- 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 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 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.
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 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. 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. 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:
(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-
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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