Update Incapacity Decision Process

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.

§ 2. Subdivision 1 of section 2983 of the public health law, as amended by chapter 342 of the laws of 2018, is amended to read as follows:

1. [Determination] Initial determination by attending physician or attending nurse practitioner. [(a) A] An initial 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.] 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.

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

[ ] is old law to be omitted.

LBD08610-01-9

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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 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] either such physician or the concurring practitioner must have the following qualifications: 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. 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] either such physician, nurse practitioner or the concurring 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, 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.

[(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.]

§ 3. Subdivision 3 of section 2994-c of the public health law, as amended by chapter 430 of the laws of 2017, 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-

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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 withholding 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 facility.

(c) (i) If the attending physician or attending nurse practitioner 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 qualifications must independently determine whether the patient lacks decision-making capacity]: 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. A record of such consultation shall be included in the patient's medical record.

(ii) If the attending physician or attending nurse practitioner makes an initial determination that a patient lacks decision-making capacity because of a developmental disability, either such physician [or], nurse practitioner, or the concurring practitioner must have the following qualifications[, or another professional with the following qualifications must independently determine whether the patient lacks decisionmaking capacity]: either (A) 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 (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 disabilities. A record of such consultation shall be included in the patient's medical record.

(d) If an attending physician or attending nurse practitioner has determined that the patient lacks decision-making capacity and if the

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health or social services practitioner consulted for a concurring determination disagrees with the attending physician's or the attending nurse practitioner's determination, the matter shall be referred to the ethics review committee if it cannot otherwise be resolved.

§ 4. Subdivisions 3 and 4 of section 2994-cc of the public health law, as amended by chapter 430 of the laws of 2017, 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 or nurse practitioner] 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 or nurse practitioner] 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 designee.

(b) When the concurrence of a second [physician or nurse practitioner] 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 or nurse practitioner] 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 appropriate to the patient].

§ 5. Paragraph (a) of subdivision 4 of section 1750-b of the surrogate's court procedure act, as amended by chapter 198 of the laws of 2016, 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 person who is intellectually disabled lacks capacity to make health care decisions. The determination thereof shall be included in the person who is intellectually disabled's medical record, and shall contain such attending physician's opinion regarding the cause and nature of the person who is intellectually disabled'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 person who is intellectually disabled'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 intellectual 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

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