Let Nurse Practitioners Sign DNRs

Section 1. Section 2960 of the public health law, as added by chapter 818 of the laws of 1987, is amended to read as follows:

§ 2960. Legislative findings and purpose. The legislature finds that, although cardiopulmonary resuscitation has proved invaluable in the prevention of sudden, unexpected death, it is appropriate for an attending physician or attending nurse practitioner, in certain circumstances, to issue an order not to attempt cardiopulmonary resuscitation of a patient where appropriate consent has been obtained. The legislature further finds that there is a need to clarify and establish the rights and obligations of patients, their families, and health care providers regarding cardiopulmonary resuscitation and the issuance of orders not to resuscitate.

§ 2. Subdivisions 2, 5 and 20 of section 2961 of the public health law, subdivisions 2 and 5 as amended by chapter 8 of the laws of 2010, and subdivision 20 as added by chapter 818 of the laws of 1987 and as renumbered by chapter 370 of the laws of 1991, are amended and two new subdivisions 2-a and 16 are added to read as follows:

2. "Attending physician" means the physician selected by or assigned to a patient in a hospital who has primary responsibility for the treatment and care of the patient. Where more than one physician and/or nurse practitioner shares such responsibility, any such physician or nurse

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

[ ] is old law to be omitted.

LBD02551-02-7

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practitioner may act as the attending physician or attending nurse practitioner pursuant to this article.

2-a. "Attending nurse practitioner" means the nurse practitioner selected by or assigned to a patient in a hospital who has primary responsibility for the treatment and care of the patient. Where more than one physician and/or nurse practitioner shares such responsibility, any such physician or nurse practitioner may act as the attending physician or attending nurse practitioner pursuant to this article.

5. "Close friend" means any person, eighteen years of age or older, who is a close friend of the patient, or relative of the patient (other than a spouse, adult child, parent, brother or sister) who has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious or moral beliefs and who presents a signed statement to that effect to the attending physician or attending nurse practitioner.

16. "Nurse practitioner" means a nurse practitioner certified pursuant to section sixty-nine hundred ten of the education law who is practicing in accordance with subdivision three of section sixty-nine hundred two of the education law.

20. "Reasonably available" means that a person to be contacted can be contacted with diligent efforts by an attending physician, attending nurse practitioner or another person acting on behalf of the attending physician, attending nurse practitioner or the hospital.

§ 3. Subdivisions 2 and 3 of section 2962 of the public health law, as added by chapter 818 of the laws of 1987, are amended to read as follows:

2. It shall be lawful for the attending physician or attending nurse practitioner to issue an order not to resuscitate a patient, provided that the order has been issued pursuant to the requirements of this article. The order shall be included in writing in the patient's chart. An order not to resuscitate shall be effective upon issuance.

3. Before obtaining, pursuant to this article, the consent of the patient, or of the surrogate of the patient, or parent or legal guardian of the minor patient, to an order not to resuscitate, the attending physician or attending nurse practitioner shall provide to the person giving consent information about the patient's diagnosis and prognosis, the reasonably foreseeable risks and benefits of cardiopulmonary resuscitation for the patient, and the consequences of an order not to resuscitate.

§ 4. Section 2963 of the public health law, as added by chapter 818 of the laws of 1987, subdivision 1, paragraph (b) of subdivision 3 and subdivision 4 as amended by chapter 8 of the laws of 2010, paragraph (c) of subdivision 3 as amended by section 5 of part J of chapter 56 of the laws of 2012, is amended to read as follows:

§ 2963. Determination of capacity to make a decision regarding cardiopulmonary resuscitation. 1. Every adult shall be presumed to have the capacity to make a decision regarding cardiopulmonary resuscitation unless determined otherwise pursuant to this section or pursuant to a court order or unless a guardian is authorized to decide about health care for the adult pursuant to article eighty-one of the mental hygiene law or article seventeen-A of the surrogate's court procedure act. The attending physician or attending nurse practitioner shall not rely on the presumption stated in this subdivision if clinical indicia of incapacity are present.

2. A determination that an adult patient lacks capacity shall be made by the attending physician or attending nurse practitioner to a reason-

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able 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 patient's incapacity as well as its extent and probable duration. The determination shall be included in the patient's medical chart.

3. (a) At least one other physician, selected by a person authorized by the hospital to make such selection, must concur in the determination that an adult lacks capacity. The concurring determination shall be made in writing after personal examination of the patient and shall contain the physician's opinion regarding the cause and nature of the patient's incapacity as well as its extent and probable duration. Each concurring determination shall be included in the patient's medical chart.

(b) If the attending physician or attending nurse practitioner determines that a patient lacks capacity because of mental illness, the concurring determination required by paragraph (a) of this subdivision shall be provided by a physician 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.

(c) If the attending physician or attending nurse practitioner determines that a patient lacks capacity because of a developmental disability, the concurring determination required by paragraph (a) of this subdivision shall be provided by a physician or psychologist 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 who 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 psychologist possess specialized training or three years experience in treating developmental disabilities.

4. Notice of a determination that the patient lacks capacity shall promptly be given (a) to the patient, where there is any indication of the patient's ability to comprehend such notice, together with a copy of a statement prepared in accordance with section twenty-nine hundred seventy-eight of this article, and (b) to the person on the surrogate list highest in order of priority listed, when persons in prior subparagraphs are not reasonably available. Nothing in this subdivision shall preclude or require notice to more than one person on the surrogate list.

5. A determination that a patient lacks capacity to make a decision regarding an order not to resuscitate pursuant to this section shall not be construed as a finding that the patient lacks capacity for any other purpose.

§ 5. Subdivision 2 of section 2964 of the public health law, as added by chapter 818 of the laws of 1987, is amended to read as follows:

2. (a) During hospitalization, an adult with capacity may express a decision consenting to an order not to resuscitate orally in the presence of at least two witnesses eighteen years of age or older, one of whom is a physician or nurse practitioner affiliated with the hospital in which the patient is being treated. Any such decision shall be recorded in the patient's medical chart.

(b) Prior to or during hospitalization, an adult with capacity may express a decision consenting to an order not to resuscitate in writing,

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dated and signed in the presence of at least two witnesses eighteen years of age or older who shall sign the decision.

(c) An attending physician or attending nurse practitioner who is provided with or informed of a decision pursuant to this subdivision shall record or include the decision in the patient's medical chart if the decision has not been recorded or included, and either:

(i) promptly issue an order not to resuscitate the patient or issue an order at such time as the conditions, if any, specified in the decision are met, and inform the hospital staff responsible for the patient's care of the order; or

(ii) promptly make his or her objection to the issuance of such an order and the reasons therefor known to the patient and either make all reasonable efforts to arrange for the transfer of the patient to another physician or nurse practitioner, if necessary, or promptly submit the matter to the dispute mediation system.

(d) Prior to issuing an order not to resuscitate a patient who has expressed a decision consenting to an order not to resuscitate under specified medical conditions, the attending physician or attending nurse practitioner must make a determination, to a reasonable degree of medical certainty, that such conditions exist, and include the determination in the patient's medical chart.

§ 6. Subdivision 5 of section 2964 of the public health law is renumbered subdivision 3.

§ 7. Subdivisions 3 and 4 of section 2965 of the public health law, as added by chapter 818 of the laws of 1987 and as renumbered by chapter 370 of the laws of 1991, paragraph (a) of subdivision 4 as amended by chapter 370 of the laws of 1991 and paragraph (c) of subdivision 4 as amended by chapter 8 of the laws of 2010, are amended to read as follows:

3. (a) The surrogate shall make a decision regarding cardiopulmonary resuscitation on the basis of the adult patient's wishes including a consideration of the patient's religious and moral beliefs, or, if the patient's wishes are unknown and cannot be ascertained, on the basis of the patient's best interests.

(b) Notwithstanding any law to the contrary, the surrogate shall have the same right as the patient to receive medical information and medical records.

(c) A surrogate may consent to an order not to resuscitate on behalf of an adult patient only if there has been a determination by an attending physician or attending nurse practitioner with the concurrence of another physician or nurse practitioner selected by a person authorized by the hospital to make such selection, given after personal examination of the patient that, to a reasonable degree of medical certainty:

(i) the patient has a terminal condition; or

(ii) the patient is permanently unconscious; or

(iii) resuscitation would be medically futile; or

(iv) resuscitation would impose an extraordinary burden on the patient in light of the patient's medical condition and the expected outcome of resuscitation for the patient.

Each determination shall be included in the patient's medical chart.

4. (a) A surrogate shall express a decision consenting to an order not to resuscitate either (i) in writing, dated, and signed in the presence of one witness eighteen years of age or older who shall sign the decision, or (ii) orally, to two persons eighteen years of age or older, one of whom is a physician or nurse practitioner affiliated with the hospi-

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tal in which the patient is being treated. Any such decision shall be recorded in the patient's medical chart.

(b) The attending physician or attending nurse practitioner who is provided with the decision of a surrogate shall include the decision in the patient's medical chart and, if the surrogate has consented to the issuance of an order not to resuscitate, shall either:

(i) promptly issue an order not to resuscitate the patient and inform the hospital staff responsible for the patient's care of the order; or

(ii) promptly make the attending physician's or attending nurse practitioner's objection to the issuance of such an order known to the surrogate and either make all reasonable efforts to arrange for the transfer of the patient to another physician or nurse practitioner, if necessary, or promptly refer the matter to the dispute mediation system.

(c) If the attending physician or attending nurse practitioner has actual notice of opposition to a surrogate's consent to an order not to resuscitate by any person on the surrogate list, the physician or nurse practitioner shall submit the matter to the dispute mediation system and such order shall not be issued or shall be revoked in accordance with the provisions of subdivision three of section twenty-nine hundred seventy-two of this article.