Bill S7153-2013

Relates to conforming and improving the process for determining incapacity

Relates to conforming and improving the process for determining incapacity.

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  • May 1, 2014: REFERRED TO HEALTH

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BILL NUMBER:S7153

TITLE OF BILL: An act to amend the public health law and the surrogate's court procedure act, in relation to conforming and improving the process for determining incapacity

PURPOSE OR 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 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 3, amends Public Health Law Articles 29-C, 29-CC and 29-CCC, and Surrogate Court Procedure Act § 1750-b, to conform and improve procedures for determining patient incapacity to make health care decisions.

SUMMARY OF SPECIFIC PROVISIONS:

Amendments to PHL Article 29-C Health Care Proxies and Agents

Section 1 amends PHL Section 2983 to renumber subdivisions 2 - 7 in order to make room for a new subdivision 2.

Section 2:

*Amends PHL § 2983.1 to make the language and process for determining incapacity under the health care proxy law more consistent with the language and process under the Family Health Care Decisions Act.

*Clarifies that a concurring determination is required only for life-sustaining treatment decisions, even if the determination is based on a patient's mental illness or developmental disability.

*Adds § 2983.2 to change the qualifications necessary for a professional to determine that a patient lacks capacity as a result of a developmental disability by providing that, for a patient in a hospital, nursing home or hospice, either the attending physician must be or must consult with either a health or social services practitioner qualified by training or experience to make such determination in accordance with written policies adopted by the hospital, nursing home or hospice, or a person who met the previous qualification requirements.

Amendments to PHL Article 29-CC Family Health Care Decisions Act

Section 3 amends PHL § 2994-c.3 to clarify that a concurring determination is required only for a surrogate decision to withdraw or withhold life-sustaining treatment, including for cases in nursing homes, and including cases in which the determination is based on a patient's mental illness or developmental disability. The section also changes the qualifications needed to determine that a patient lacks capacity as a result of a developmental disability, consistent with Section 2.

Amendments to PHL Article 29-CCC Non-Hospital Orders Not to Resuscitate

Section 4 amends PHL § 2994-cc.3, 4 and 5 to eliminate redundant language and to change "concurrence of a second physician" to "concurrence of a health or social services practitioner."

Amendments to SCPA § 1750-b Health Care Decisions For Persons With Mental Retardation

Section 5 amends SCPA § 1750-b.4(a) to:

*clarify that the attending physician is providing an "initial" determination of incapacity, not a confirming determination;

*clarify that either the attending physician or the concurring physician must have special qualifications related to developmental disabilities only if the attending physician initially determined that the patient lacked capacity because of the developmental disability;

*change the qualifications necessary for a professional to determine that a patient in a hospital, nursing home or hospice lacks capacity as a result of a developmental disability, consistent with Section 2.

Sections 6, 7 and 8 make technical conforming changes to sections 2982, 2984 and 2983 of the public health law.

Effective Date

Section 9 is the effective date.

JUSTIFICATION:

By enacting Chapter 8 of the Laws of 2010, including the Family Health Care Decisions Act, the Legislature significantly improved the laws in New York relating to decision-making for patients who lack capacity and who do not have a health care agent. Specifically, the FHCDA clarified the authority of a close family member or close friend to consent to treatment for such patients, and allowed such person to direct the withdrawal or withholding of life-sustaining treatment in limited and clearly defined circumstances, based on sound standards.

This bill draws upon growing experience with the FHCDA, and its interaction with other health care decision-making laws. It makes technical and coordinating amendments and other improvements to those laws with respect to determining the incapacity of patients to make health care decisions.

One important improvement relates o the qualifications of professionals who can determine the incapacity of a patient based on developmental disability. Hospitals and nursing homes have found it extremely difficult to locate professionals with the special qualifications now required by this law for a determining the incapacity of a patient with a developmental disability - especially in urgent or off-hours situations. This amendment would let those types of providers establish the necessary qualifications for that service, just as they determine qualifications for other professional services in their institutions and programs.

PRIOR LEGISLATIVE HISTORY:

S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A. Gottfried)(2013) included all of these provisions, as well as other provisions.

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 ________________________________________________________________________ 7153 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 AN ACT to amend the public health law and the surrogate's court proce- dure act, in relation to conforming and improving the process for determining incapacity THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 2, 3, 4, 5, 6 and 7 of section 2983 of the public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8. S 2. Subdivision 1 of section 2983 of the public health law, as added by chapter 752 of the laws of 1990, paragraph (b) as amended by chapter 23 of the laws of 1994 and paragraph (c) as amended by section 7 of part J of chapter 56 of the laws of 2012, is amended to read as follows: 1. [Determination] INITIAL DETERMINATION by attending physician. [(a) A] AN INITIAL 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 regard- ing the cause and nature of the principal's incapacity as well as its extent and probable 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 determi- nation 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] A PHYSICIAN WHO HAS BEEN APPOINTED AS A PATIENT'S AGENT SHALL NOT MAKE THE DETERMINATION OF THE PATIENT'S CAPACITY TO MAKE HEALTH CARE DECI- SIONS. 2. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT DECISIONS. FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE FOLLOWING SHALL APPLY: (A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY SHALL BE SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR SOCIAL SERVICES PRACTITIONER. A CONCURRING DETERMINATION SHALL INCLUDE
AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE PATIENT'S INCAPACITY AND THE LIKELIHOOD THAT THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY, AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD. HOSPITALS SHALL ADOPT WRITTEN POLICIES IDENTIFYING THE TRAINING AND CREDENTIALS OF HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE CONCURRING DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS. (b) If an attending physician of a patient in a general hospital or mental hygiene facility determines that a patient lacks capacity because of mental illness, [the attending physician who makes the determination must be, or must consult, for the purpose of confirming the determi- nation, with a qualified psychiatrist] EITHER SUCH PHYSICIAN OR THE CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A PHYSI- CIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE OR ELIGIBLE TO BE CERTIFIED BY THE AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY OR WHO IS CERTIFIED BY THE AMERICAN OSTEOPATHIC BOARD OF NEUROLOGY AND PSYCHIATRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD. A record of such consultation shall be included in the patient's medical record. (c) If the attending physician determines that a patient lacks capaci- ty because of a developmental disability, [the attending physician who makes the determination must be, or must consult, for the purpose of confirming the determination, with] EITHER SUCH PHYSICIAN OR THE CONCUR- RING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: EITHER (I) FOR A PATIENT IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMINATION IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL; OR (II) FOR A PATIENT IN ANY SETTING, a physician or clinical psychologist who either is employed by a developmental disabilities services office named in section 13.17 of the mental hygiene law, or who has been employed for a minimum of two years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or has been approved by the commissioner of developmental disabilities in accordance with regulations promulgated by such commissioner. Such regu- lations shall require that a physician or clinical psychologist possess specialized training or three years experience in treating developmental disabilities. A record of such consultation shall be included in the patient's medical record. [(d) A physician who has been appointed as a patient's agent shall not make the determination of the patient's capacity to make health care decisions.] S 3. Subdivision 3 of section 2994-c of the public health law, as added by chapter 8 of the laws of 2010, paragraph (b) as amended by chapter 167 of the laws of 2011, subparagraph (ii) of paragraph (c) as amended by section 8 of part J of chapter 56 of the laws of 2012, is amended to read as follows: 3. Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS. FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THEN THE FOLLOWING SHALL APPLY: (a) An initial determination that a patient lacks decision-making capacity shall be subject to a concurring determi- nation, independently made, [where required by this subdivision] BY A HEALTH OR SOCIAL SERVICES PRACTITIONER EMPLOYED OR OTHERWISE FORMALLY AFFILIATED WITH THE HOSPITAL. A concurring determination shall include an assessment of the cause and extent of the patient's incapacity and the likelihood that the patient will regain decision-making capacity, and shall be included in the patient's medical record. Hospitals shall adopt written policies identifying the training and credentials of
health or social services practitioners qualified to provide concurring determinations of incapacity. (b) [(i) In a residential health care facility, a health or social services practitioner employed by or otherwise formally affiliated with the facility must independently determine whether an adult patient lacks decision-making capacity. (ii) In a general hospital a health or social services practitioner employed by or otherwise formally affiliated with the facility must independently determine whether an adult patient lacks decision-making capacity if the surrogate's decision concerns the withdrawal or with- holding of life-sustaining treatment. (iii)] With respect to decisions regarding hospice care for a patient in a general hospital or residential health care facility, the health or social services practitioner must be employed by or otherwise formally affiliated with the general hospital or residential health care facili- ty. (c) (i) If the attending physician makes an initial determination that a patient lacks decision-making capacity because of mental illness, either such physician OR THE CONCURRING PRACTITIONER must have the following qualifications[, or another physician with the following qual- ifications must independently determine whether the patient lacks deci- sion-making capacity]: a physician licensed to practice medicine in New York state, who is a diplomate or eligible to be certified by the Ameri- can Board of Psychiatry and Neurology or who is certified by the Ameri- can Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board. A record of such consultation shall be included in the patient's medical record. (ii) If the attending physician makes an initial determination that a patient lacks decision-making capacity because of a developmental disa- bility, either such physician OR THE CONCURRING PRACTITIONER must have the following qualifications[, or another professional with the follow- ing qualifications must independently determine whether the patient lacks decision-making capacity]: EITHER (A) A HEALTH OR SOCIAL SERVICES PRACTITIONER QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMI- NATION IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE HOSPITAL, OR (B) a physician or clinical psychologist who either is employed by a developmental disabilities services office named in section 13.17 of the mental hygiene law, or who has been employed for a minimum of two years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or has been approved by the commissioner of developmental disabilities in accordance with regulations promulgated by such commissioner. Such regulations shall require that a physician or clinical psychologist possess specialized training or three years experience in treating developmental disabili- ties. A record of such consultation shall be included in the patient's medical record. (d) If an attending physician has determined that the patient lacks decision-making capacity and if the health or social services practi- tioner consulted for a concurring determination disagrees with the attending physician's determination, the matter shall be referred to the ethics review committee if it cannot otherwise be resolved. S 4. Subdivisions 3 and 4 of section 2994-cc of the public health law, subdivision 3 as added by chapter 8 of the laws of 2010 and subdivision 4 as amended by section 131 of subpart B of part C of chapter 62 of the laws of 2011, are amended to read as follows:
3. Consent by a surrogate shall be governed by article twenty-nine-CC of this chapter, except that[: (a) a second determination of capacity shall be made by a health or social services practitioner; and (b)] the authority of the ethics review committee set forth in article twenty-nine-CC of this chapter shall apply only to nonhospital orders issued in a hospital OR HOSPICE. 4. (a) When the concurrence of a second [physician] HEALTH OR SOCIAL SERVICES PRACTITIONER is sought to fulfill the requirements for the issuance of a nonhospital order not to resuscitate for patients in a correctional facility, such second [physician] HEALTH OR SOCIAL SERVICES PRACTITIONER shall be selected by the chief medical officer of the department of corrections and community supervision or his or her desig- nee. (b) When the concurrence of a second [physician] HEALTH OR SOCIAL SERVICES PRACTITIONER is sought to fulfill the requirements for the issuance of a nonhospital order not to resuscitate for [hospice and] home care patients, such second [physician] HEALTH OR SOCIAL SERVICES PRACTITIONER shall be selected [by the hospice medical director or hospice nurse coordinator designated by the medical director or] by the home care services agency director of patient care services[, as appro- priate to the patient]. S 5. Paragraph (a) of subdivision 4 of section 1750-b of the surro- gate's court procedure act, as added by chapter 500 of the laws of 2002, subparagraph (i) as amended by section 18 of part J of chapter 56 of the laws of 2012, is amended to read as follows: (a) The attending physician, as defined in subdivision two of section twenty-nine hundred eighty of the public health law, [must confirm] SHALL INITIALLY DETERMINE to a reasonable degree of medical certainty that the [mentally retarded] DEVELOPMENTALLY DISABLED person lacks capacity to make health care decisions. The determination thereof shall be included in the [mentally retarded] DEVELOPMENTALLY DISABLED person's medical record, and shall contain such attending physician's opinion regarding the cause and nature of the [mentally retarded] DEVELOP- MENTALLY DISABLED person's incapacity as well as its extent and probable duration. The attending physician who makes [the confirmation] SUCH INITIAL DETERMINATION shall consult with another physician, or a licensed psychologist, to further confirm the [mentally retarded] DEVEL- OPMENTALLY DISABLED person's lack of capacity. [The] IF THE ATTENDING PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY TO MAKE HEALTH CARE DECISIONS BECAUSE OF DEVELOPMENTAL DISABILITY, THEN THE attending physician [who makes the confirmation,] or the physician or licensed psychologist with whom the attending physician consults[,] EITHER (I) FOR A PATIENT IN A GENERAL HOSPITAL, RESIDENTIAL HEALTH CARE FACILITY OR HOSPICE, must [(i)] BE QUALIFIED BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMINATION, IN ACCORDANCE WITH POLICIES ADOPTED BY THE GENERAL HOSPITAL, RESIDENTIAL HEALTH CARE FACILITY OR HOSPICE; OR (II) FOR A PATIENT IN ANY SETTING, MUST (A) be employed by a developmental disabilities services office named in section 13.17 of the mental hygiene law or employed by the office for people with developmental disabilities to provide treatment and care to people with developmental disabilities, or [(ii)] (B) have been employed for a minimum of two years to render care and service in a facility or program operated, licensed or authorized by the office [of mental retardation and] FOR PEOPLE WITH developmental disabilities, or [(iii)] (C) have been approved by the commissioner of [mental retardation and] developmental disabilities in accordance with regulations promulgated by such commis-
sioner. Such regulations shall require that a physician or licensed psychologist possess specialized training or three years experience in treating [mental retardation] DEVELOPMENTAL DISABILITIES. A record of such consultation shall be included in the [mentally retarded] DEVELOP- MENTALLY DISABLED person's medical record. S 6. Subdivision 4 of section 2982 of the public health law, as amended by chapter 370 of the laws of 1991, is amended to read as follows: 4. Priority over other surrogates. Health care decisions by an agent on a principal's behalf pursuant to this article shall have priority over decisions by any other person, except as otherwise provided in the health care proxy or in subdivision [five] SIX of section two thousand nine hundred eighty-three of this article. S 7. Subdivision 2 of section 2984 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows: 2. A health care provider shall comply with health care decisions made by an agent in good faith under a health care proxy to the same extent as if such decisions had been made by the principal, subject to any limitations in the health care proxy and pursuant to the provisions of subdivision [five] SIX of section two thousand nine hundred eighty-three of this article. S 8. Paragraph (b) of subdivision 7 of section 2983 of the public health law, as added by chapter 752 of the laws of 1990 and such subdi- vision as renumbered by section one of this act, is amended to read as follows: (b) The notice requirements set forth in subdivision [three] FOUR of this section shall not apply to the confirmation required by this subdi- vision. S 9. 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 made by section two of this act shall apply to the 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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