S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2036
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 15, 2015
                                      ___________
       Introduced  by  M. of A. PRETLOW, GOTTFRIED -- read once and referred 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:
    1    Section  1.  Subdivisions  2,  3, 4, 5, 6 and 7 of section 2983 of the
    2  public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8.
    3    S 2. Subdivision 1 of section 2983 of the public health law, as  added
    4  by  chapter 752 of the laws of 1990, paragraph (b) as amended by chapter
    5  23 of the laws of 1994 and paragraph (c) as amended by section 7 of part
    6  J of chapter 56 of the laws of 2012, is amended to read as follows:
    7    1. [Determination] INITIAL DETERMINATION by attending physician.  [(a)
    8  A]  AN  INITIAL  determination  that  a principal lacks capacity to make
    9  health care decisions shall be made by  the  attending  physician  to  a
   10  reasonable  degree of medical certainty. The determination shall be made
   11  in writing and shall contain such attending physician's opinion  regard-
   12  ing  the  cause  and nature of the principal's incapacity as well as its
   13  extent and probable duration. The determination shall be included in the
   14  patient's medical record. [For a decision to withdraw or withhold  life-
   15  sustaining  treatment,  the  attending  physician who makes the determi-
   16  nation that a principal lacks capacity to  make  health  care  decisions
   17  must  consult with another physician to confirm such determination. Such
   18  consultation shall also be included within the patient's medical record]
   19  A PHYSICIAN WHO HAS BEEN APPOINTED AS A PATIENT'S AGENT SHALL  NOT  MAKE
   20  THE  DETERMINATION  OF  THE PATIENT'S CAPACITY TO MAKE HEALTH CARE DECI-
   21  SIONS.
   22    2. CONCURRING DETERMINATIONS FOR LIFE-SUSTAINING TREATMENT  DECISIONS.
   23  FOR  A  DECISION  TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING TREATMENT, THE
   24  FOLLOWING SHALL APPLY:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05379-01-5
       A. 2036                             2
    1    (A) THE INITIAL DETERMINATION THAT A PATIENT LACKS CAPACITY  SHALL  BE
    2  SUBJECT TO A CONCURRING DETERMINATION, INDEPENDENTLY MADE BY A HEALTH OR
    3  SOCIAL  SERVICES  PRACTITIONER. A CONCURRING DETERMINATION SHALL INCLUDE
    4  AN ASSESSMENT OF THE CAUSE AND EXTENT OF THE  PATIENT'S  INCAPACITY  AND
    5  THE  LIKELIHOOD  THAT  THE PATIENT WILL REGAIN DECISION-MAKING CAPACITY,
    6  AND SHALL BE INCLUDED IN THE PATIENT'S MEDICAL RECORD.  HOSPITALS  SHALL
    7  ADOPT  WRITTEN  POLICIES  IDENTIFYING  THE  TRAINING  AND CREDENTIALS OF
    8  HEALTH OR SOCIAL SERVICES PRACTITIONERS QUALIFIED TO PROVIDE  CONCURRING
    9  DETERMINATIONS OF INCAPACITY CONDUCTED FOR HOSPITAL PATIENTS.
   10    (b)  If  an  attending physician of a patient in a general hospital or
   11  mental hygiene facility determines that a patient lacks capacity because
   12  of mental illness, [the attending physician who makes the  determination
   13  must  be,  or  must  consult, for the purpose of confirming the determi-
   14  nation, with a qualified psychiatrist]  EITHER  SUCH  PHYSICIAN  OR  THE
   15  CONCURRING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS: A PHYSI-
   16  CIAN LICENSED TO PRACTICE MEDICINE IN NEW YORK STATE, WHO IS A DIPLOMATE
   17  OR  ELIGIBLE  TO  BE  CERTIFIED  BY THE AMERICAN BOARD OF PSYCHIATRY AND
   18  NEUROLOGY OR WHO IS CERTIFIED  BY  THE  AMERICAN  OSTEOPATHIC  BOARD  OF
   19  NEUROLOGY AND PSYCHIATRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD. A
   20  record  of  such consultation shall be included in the patient's medical
   21  record.
   22    (c) If the attending physician determines that a patient lacks capaci-
   23  ty because of a developmental disability, [the attending  physician  who
   24  makes  the  determination  must  be, or must consult, for the purpose of
   25  confirming the determination, with] EITHER SUCH PHYSICIAN OR THE CONCUR-
   26  RING PRACTITIONER MUST HAVE THE FOLLOWING QUALIFICATIONS:    EITHER  (I)
   27  FOR  A  PATIENT  IN A HOSPITAL, A HEALTH OR SOCIAL SERVICES PRACTITIONER
   28  QUALIFIED BY TRAINING  OR  EXPERIENCE  TO  MAKE  SUCH  DETERMINATION  IN
   29  ACCORDANCE  WITH  THE  WRITTEN POLICIES ADOPTED BY THE HOSPITAL; OR (II)
   30  FOR A PATIENT IN ANY SETTING, a physician or clinical  psychologist  who
   31  either is employed by a developmental disabilities services office named
   32  in section 13.17 of the mental hygiene law, or who has been employed for
   33  a minimum of two years to render care and service in a facility operated
   34  or licensed by the office for people with developmental disabilities, or
   35  has  been  approved by the commissioner of developmental disabilities in
   36  accordance with regulations promulgated by such commissioner. Such regu-
   37  lations shall require that a physician or clinical psychologist  possess
   38  specialized training or three years experience in treating developmental
   39  disabilities.  A  record  of  such consultation shall be included in the
   40  patient's medical record.
   41    [(d) A physician who has been appointed as a patient's agent shall not
   42  make the determination of the patient's capacity  to  make  health  care
   43  decisions.]
   44    S  3.  Subdivision  3  of  section 2994-c of the public health law, as
   45  added by chapter 8 of the laws of 2010,  paragraph  (b)  as  amended  by
   46  chapter  167  of the laws of 2011, subparagraph (ii) of paragraph (c) as
   47  amended by section 8 of part J of chapter 56 of the  laws  of  2012,  is
   48  amended to read as follows:
   49    3.  Concurring determinations FOR LIFE-SUSTAINING TREATMENT DECISIONS.
   50  FOR A DECISION TO WITHDRAW OR WITHHOLD LIFE-SUSTAINING  TREATMENT,  THEN
   51  THE  FOLLOWING  SHALL APPLY: (a) An initial determination that a patient
   52  lacks decision-making capacity shall be subject to a concurring determi-
   53  nation, independently made, [where required by this  subdivision]  BY  A
   54  HEALTH  OR  SOCIAL  SERVICES PRACTITIONER EMPLOYED OR OTHERWISE FORMALLY
   55  AFFILIATED WITH THE HOSPITAL. A concurring determination  shall  include
   56  an  assessment  of  the cause and extent of the patient's incapacity and
       A. 2036                             3
    1  the likelihood that the patient will  regain  decision-making  capacity,
    2  and  shall  be included in the patient's medical record. Hospitals shall
    3  adopt written policies  identifying  the  training  and  credentials  of
    4  health  or social services practitioners qualified to provide concurring
    5  determinations of incapacity.
    6    (b) [(i) In a residential health care facility,  a  health  or  social
    7  services  practitioner employed by or otherwise formally affiliated with
    8  the facility must independently determine whether an adult patient lacks
    9  decision-making capacity.
   10    (ii) In a general hospital a health or  social  services  practitioner
   11  employed  by  or  otherwise  formally  affiliated with the facility must
   12  independently determine whether an adult patient  lacks  decision-making
   13  capacity  if  the  surrogate's decision concerns the withdrawal or with-
   14  holding of life-sustaining treatment.
   15    (iii)] With respect to decisions regarding hospice care for a  patient
   16  in a general hospital or residential health care facility, the health or
   17  social  services  practitioner must be employed by or otherwise formally
   18  affiliated with the general hospital or residential health care  facili-
   19  ty.
   20    (c) (i) If the attending physician makes an initial determination that
   21  a  patient  lacks  decision-making  capacity  because of mental illness,
   22  either such physician OR  THE  CONCURRING  PRACTITIONER  must  have  the
   23  following qualifications[, or another physician with the following qual-
   24  ifications  must independently determine whether the patient lacks deci-
   25  sion-making capacity]: a physician licensed to practice medicine in  New
   26  York state, who is a diplomate or eligible to be certified by the Ameri-
   27  can  Board of Psychiatry and Neurology or who is certified by the Ameri-
   28  can Osteopathic Board of Neurology and Psychiatry or is eligible  to  be
   29  certified by that board. A record of such consultation shall be included
   30  in the patient's medical record.
   31    (ii)  If the attending physician makes an initial determination that a
   32  patient lacks decision-making capacity because of a developmental  disa-
   33  bility,  either  such physician OR THE CONCURRING PRACTITIONER must have
   34  the following qualifications[, or another professional with the  follow-
   35  ing  qualifications  must  independently  determine  whether the patient
   36  lacks decision-making capacity]: EITHER (A) A HEALTH OR SOCIAL  SERVICES
   37  PRACTITIONER  QUALIFIED  BY TRAINING OR EXPERIENCE TO MAKE SUCH DETERMI-
   38  NATION IN ACCORDANCE WITH THE WRITTEN POLICIES ADOPTED BY THE  HOSPITAL,
   39  OR  (B) a physician or clinical psychologist who either is employed by a
   40  developmental disabilities services office named in section 13.17 of the
   41  mental hygiene law, or who has been employed for a minimum of two  years
   42  to  render  care  and  service in a facility operated or licensed by the
   43  office for people with developmental disabilities, or has been  approved
   44  by  the  commissioner  of  developmental disabilities in accordance with
   45  regulations promulgated by such  commissioner.  Such  regulations  shall
   46  require  that  a  physician or clinical psychologist possess specialized
   47  training or three years experience in treating  developmental  disabili-
   48  ties.  A  record of such consultation shall be included in the patient's
   49  medical record.
   50    (d) If an attending physician has determined that  the  patient  lacks
   51  decision-making  capacity  and  if the health or social services practi-
   52  tioner consulted for  a  concurring  determination  disagrees  with  the
   53  attending physician's determination, the matter shall be referred to the
   54  ethics review committee if it cannot otherwise be resolved.
   55    S 4. Subdivisions 3 and 4 of section 2994-cc of the public health law,
   56  subdivision  3 as added by chapter 8 of the laws of 2010 and subdivision
       A. 2036                             4
    1  4 as amended by section 131 of subpart B of part C of chapter 62 of  the
    2  laws of 2011, are amended to read as follows:
    3    3.  Consent by a surrogate shall be governed by article twenty-nine-CC
    4  of this chapter, except that[: (a) a second  determination  of  capacity
    5  shall  be made by a health or social services practitioner; and (b)] the
    6  authority  of  the  ethics  review  committee  set  forth   in   article
    7  twenty-nine-CC  of  this  chapter shall apply only to nonhospital orders
    8  issued in a hospital OR HOSPICE.
    9    4. (a) When the concurrence of a second [physician] HEALTH  OR  SOCIAL
   10  SERVICES  PRACTITIONER  is  sought  to  fulfill the requirements for the
   11  issuance of a nonhospital order not to resuscitate  for  patients  in  a
   12  correctional facility, such second [physician] HEALTH OR SOCIAL SERVICES
   13  PRACTITIONER  shall  be  selected  by  the  chief medical officer of the
   14  department of corrections and community supervision or his or her desig-
   15  nee.
   16    (b) When the concurrence of a  second  [physician]  HEALTH  OR  SOCIAL
   17  SERVICES  PRACTITIONER  is  sought  to  fulfill the requirements for the
   18  issuance of a nonhospital order not to  resuscitate  for  [hospice  and]
   19  home  care  patients,  such second [physician] HEALTH OR SOCIAL SERVICES
   20  PRACTITIONER shall be selected  [by  the  hospice  medical  director  or
   21  hospice  nurse coordinator designated by the medical director or] by the
   22  home care services agency director of patient care services[, as  appro-
   23  priate to the patient].
   24    S  5.  Paragraph  (a) of subdivision 4 of section 1750-b of the surro-
   25  gate's court procedure act, as added by chapter 500 of the laws of 2002,
   26  subparagraph (i) as amended by section 18 of part J of chapter 56 of the
   27  laws of 2012, is amended to read as follows:
   28    (a) The attending physician, as defined in subdivision two of  section
   29  twenty-nine  hundred  eighty  of  the  public health law, [must confirm]
   30  SHALL INITIALLY DETERMINE to a reasonable degree  of  medical  certainty
   31  that  the  [mentally  retarded]  DEVELOPMENTALLY  DISABLED  person lacks
   32  capacity to make health care decisions. The determination thereof  shall
   33  be included in the [mentally retarded] DEVELOPMENTALLY DISABLED person's
   34  medical  record,  and  shall  contain such attending physician's opinion
   35  regarding the cause and  nature  of  the  [mentally  retarded]  DEVELOP-
   36  MENTALLY DISABLED person's incapacity as well as its extent and probable
   37  duration.  The  attending  physician  who  makes [the confirmation] SUCH
   38  INITIAL  DETERMINATION  shall  consult  with  another  physician,  or  a
   39  licensed psychologist, to further confirm the [mentally retarded] DEVEL-
   40  OPMENTALLY  DISABLED  person's  lack of capacity. [The] IF THE ATTENDING
   41  PHYSICIAN MAKES AN INITIAL DETERMINATION THAT A PATIENT  LACKS  CAPACITY
   42  TO  MAKE HEALTH CARE DECISIONS BECAUSE OF DEVELOPMENTAL DISABILITY, THEN
   43  THE attending physician [who makes the confirmation,] or  the  physician
   44  or  licensed  psychologist with whom the attending physician consults[,]
   45  EITHER (I) FOR A PATIENT IN A GENERAL HOSPITAL, RESIDENTIAL HEALTH  CARE
   46  FACILITY  OR  HOSPICE, must [(i)] BE QUALIFIED BY TRAINING OR EXPERIENCE
   47  TO MAKE SUCH DETERMINATION, IN ACCORDANCE WITH POLICIES ADOPTED  BY  THE
   48  GENERAL  HOSPITAL,  RESIDENTIAL HEALTH CARE FACILITY OR HOSPICE; OR (II)
   49  FOR A PATIENT IN ANY SETTING, MUST (A) be employed  by  a  developmental
   50  disabilities  services  office  named  in  section  13.17  of the mental
   51  hygiene law or employed by the  office  for  people  with  developmental
   52  disabilities  to provide treatment and care to people with developmental
   53  disabilities, or [(ii)] (B) have been employed  for  a  minimum  of  two
   54  years  to  render  care  and  service in a facility or program operated,
   55  licensed or authorized by the office [of  mental  retardation  and]  FOR
   56  PEOPLE  WITH  developmental  disabilities,  or  [(iii)]  (C)  have  been
       A. 2036                             5
    1  approved by the commissioner of [mental retardation  and]  developmental
    2  disabilities  in accordance with regulations promulgated by such commis-
    3  sioner. Such regulations shall require  that  a  physician  or  licensed
    4  psychologist  possess  specialized training or three years experience in
    5  treating [mental retardation] DEVELOPMENTAL DISABILITIES.  A  record  of
    6  such  consultation shall be included in the [mentally retarded] DEVELOP-
    7  MENTALLY DISABLED person's medical record.
    8    S 6. Subdivision 4 of section  2982  of  the  public  health  law,  as
    9  amended  by  chapter  370  of  the  laws  of 1991, is amended to read as
   10  follows:
   11    4. Priority over other surrogates. Health care decisions by  an  agent
   12  on  a  principal's  behalf  pursuant to this article shall have priority
   13  over decisions by any other person, except as otherwise provided in  the
   14  health  care  proxy or in subdivision [five] SIX of section two thousand
   15  nine hundred eighty-three of this article.
   16    S 7. Subdivision 2 of section 2984 of the public health law, as  added
   17  by chapter 752 of the laws of 1990, is amended to read as follows:
   18    2. A health care provider shall comply with health care decisions made
   19  by  an  agent in good faith under a health care proxy to the same extent
   20  as if such decisions had been made by  the  principal,  subject  to  any
   21  limitations  in  the health care proxy and pursuant to the provisions of
   22  subdivision [five] SIX of section two thousand nine hundred eighty-three
   23  of this article.
   24    S 8.  Paragraph (b) of subdivision 7 of section  2983  of  the  public
   25  health  law, as added by chapter 752 of the laws of 1990 and such subdi-
   26  vision as renumbered by section one of this act, is amended to  read  as
   27  follows:
   28    (b)  The  notice requirements set forth in subdivision [three] FOUR of
   29  this section shall not apply to the confirmation required by this subdi-
   30  vision.
   31    S 9.  This act shall take effect on the ninetieth day after  it  shall
   32  have  become  a law, provided that the amendments to article 29-C of the
   33  public health law made by section two of this act  shall  apply  to  the
   34  decisions  made  pursuant  to  health  care proxies created prior to the
   35  effective date of this act as well as those created thereafter.