Let Nurses Witness Health Proxies

Section 1. Section 2980 of the public health law is amended by adding three new subdivisions 2-a, 2-b and 2-c to read as follows:

2-a. "Nurse practitioner" means a nurse practitioner certified under section sixty-nine hundred ten of the education law, practicing within his or her scope of practice.

2-b. "Psychiatric nurse practitioner" means a nurse practitioner certified by the department of education as a psychiatric nurse practitioner.

2-c. "Attending nurse practitioner" means the nurse practitioner, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. Where more than one nurse practitioner shares such responsibility, or where a nurse practitioner is acting on the attending nurse practitioner's behalf, any such nurse practitioner may act as the attending nurse practitioner pursuant to this article.

§ 2. Subdivisions 2, 3 and 6 of section 2981 of the public health law, as added by chapter 752 of the laws of 1990, paragraph (b) of subdivision 2 as amended by chapter 23 of the laws of 1994 and paragraph (c) of subdivision 2 as amended by section 6 of part J of chapter 56 of the laws of 2012, are amended to read as follows:

2. Health care proxy; execution; witnesses. (a) A competent adult may appoint a health care agent by a health care proxy, signed and dated by the adult in the presence of two adult witnesses who shall also sign the proxy. Another person may sign and date the health care proxy for the adult if the adult is unable to do so, at the adult's direction and in the adult's presence, and in the presence of two adult witnesses who shall sign the proxy. The witnesses shall state that the principal

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD14616-04-8

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appeared to execute the proxy willingly and free from duress. The person appointed as agent shall not act as witness to execution of the health care proxy.

(b) For persons who reside in a mental hygiene facility operated or licensed by the office of mental health, at least one witness shall be an individual who is not affiliated with the facility and, if the mental hygiene facility is also a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law, at least one witness shall be a qualified psychiatrist or psychiatric nurse practitioner.

(c) For persons who reside in a mental hygiene facility operated or licensed by the office for people with developmental disabilities, at least one witness shall be an individual who is not affiliated with the facility and at least one witness shall be a physician, nurse practitioner 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 approved by the commissioner. Such regulations shall require that a physician, nurse practitioner or clinical psychologist possess specialized training or three years experience in treating developmental disabilities.

3. Restrictions on who may be and limitations on a health care agent. (a) An operator, administrator or employee of a hospital may not be appointed as a health care agent by any person who, at the time of the appointment, is a patient or resident of, or has applied for admission to, such hospital.

(b) The restriction in paragraph (a) of this subdivision shall not apply to:

(i) an operator, administrator or employee of a hospital who is related to the principal by blood, marriage or adoption; or

(ii) a physician or nurse practitioner, subject to the limitation set forth in paragraph (c) of this subdivision, except that no physician or nurse practitioner affiliated with a mental hygiene facility or a psychiatric unit of a general hospital may serve as agent for a principal residing in or being treated by such facility or unit unless the physician is related to the principal by blood, marriage or adoption.

(c) If a physician or nurse practitioner is appointed agent, the physician or nurse practitioner shall not act as the patient's attending physician or attending nurse practitioner after the authority under the health care proxy commences, unless the physician or nurse practitioner declines the appointment as agent at or before such time.

(d) No person who is not the spouse, child, parent, brother, sister or grandparent of the principal, or is the issue of, or married to, such person, shall be appointed as a health care agent if, at the time of appointment, he or she is presently appointed health care agent for ten principals.

6. Alternate agent. (a) A competent adult may designate an alternate agent in the health care proxy to serve in place of the agent when:

(i) the attending physician or attending nurse practitioner has determined in a writing signed by the physician or nurse practitioner (A) that the person appointed as agent is not reasonably available, willing and competent to serve as agent, and (B) that such person is not expected to become reasonably available, willing and competent to make a timely decision given the patient's medical circumstances;

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(ii) the agent is disqualified from acting on the principal's behalf pursuant to subdivision three of this section or subdivision two of section two thousand nine hundred ninety-two of this article, or

(iii) under conditions set forth in the proxy.

(b) If, after an alternate agent's authority commences, the person appointed as agent becomes available, willing and competent to serve as agent:

(i) the authority of the alternate agent shall cease and the authority of the agent shall commence; and

(ii) the attending physician or attending nurse practitioner shall record the change in agent and the reasons therefor in the principal's medical record.

§ 3. Section 2983 of the public health law, as added by chapter 752 of the laws of 1990, paragraph (b) of subdivision 1 as amended by chapter 23 of the laws of 1994 and paragraph (c) of subdivision 1 as amended by section 7 of part J of chapter 56 of the laws of 2012, is amended to read as follows:

§ 2983. Determination of lack of capacity to make health care decisions for the purpose of empowering agent. 1. Determination by attending physician or attending nurse practitioner. (a) A determination that a principal lacks capacity to make health care decisions shall be made by the attending physician or attending nurse practitioner to a reasonable degree of medical certainty. The determination shall be made in writing and shall contain such attending physician's or attending nurse practitioner's opinion regarding 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 or attending nurse practitioner who makes the determination that a principal lacks capacity to make health care decisions must consult with another physician or nurse practitioner to confirm such determination. Such consultation shall also be included within the patient's medical record.

(b) If an attending physician or attending nurse practitioner of a patient in a general hospital or mental hygiene facility determines that a patient lacks capacity because of mental illness, the attending physician or attending nurse practitioner who makes the determination must be, or must consult, for the purpose of confirming the determination, with a qualified psychiatrist. A record of such consultation shall be included in the patient's medical record.

(c) If the attending physician or attending nurse practitioner determines that a patient lacks capacity because of a developmental disability, the attending physician or attending nurse practitioner who makes the determination must be, or must consult, for the purpose of confirming the determination, with a physician, nurse practitioner 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, nurse practitioner 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.

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(d) A physician or nurse practitioner who has been appointed as a patient's agent shall not make the determination of the patient's capacity to make health care decisions.

2. Request for a determination. If requested by the agent, an attending physician or attending nurse practitioner shall make a determination regarding the principal's capacity to make health care decisions for the purposes of this article.

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 indication 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.

4. Limited purpose of determination. A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that the patient lacks capacity for any other purpose.

5. Priority of principal's decision. Notwithstanding a determination pursuant to this section that the principal lacks capacity to make health care decisions, where a principal objects to the determination of incapacity or to a health care decision made by an agent, the principal's objection or decision shall prevail unless the principal is determined by a court of competent jurisdiction to lack capacity to make health care decisions.

6. Confirmation of lack of capacity. (a) The attending physician or attending nurse practitioner shall confirm the principal's continued incapacity before complying with an agent's health care decisions, other than those decisions made at or about the time of the initial determination made pursuant to subdivision one of this section. The confirmation shall be stated in writing and shall be included in the principal's medical record.

(b) The notice requirements set forth in subdivision three of this section shall not apply to the confirmation required by this subdivision.

7. Effect of recovery of capacity. In the event the attending physician or attending nurse practitioner determines that the principal has regained capacity, the authority of the agent shall cease, but shall recommence if the principal subsequently loses capacity as determined pursuant to this section.

§ 4. Subdivision 2 of section 2985 of the public health law, as added by chapter 752 of the laws of 1990, is amended to read as follows:

2. Duty to record revocation. (a) A physician or nurse practitioner who is informed of or provided with a revocation of a health care proxy shall immediately (i) record the revocation in the principal's medical record and (ii) notify the agent and the medical staff responsible for the principal's care of the revocation.

(b) Any member of the staff of a health care provider informed of or provided with a revocation of a health care proxy pursuant to this section shall immediately notify a physician or nurse practitioner of such revocation.

§ 5. This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately, any rules and regulations necessary to implement the provisions of this act on its effective date are authorized and directed to be amended, repealed and/or promulgated on or before such date.