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S5938Senate2019-2020 SessionSame asA4525

Clarify Incapacity Determination Rules

Official title

“Relates to conforming and improving the process for determining incapacity”

Sponsor Gustavo RiveraSD-33Affects Health
Status
In Senate Committee
Health
Impact
4/10
Low
Passage
0%

Bill progress

Step 2 of 7

In committee · Health

What's happening

This bill updates New York's process for determining patient incapacity, especially regarding decisions about life-sustaining treatment, by clarifying roles and required qualifications for medical professionals involved.

Why it matters

  1. Strengthens patient protections. by requiring a second, independent health or social services practitioner to confirm a finding of incapacity before life-sustaining treatment can be withdrawn or withheld, aiming to prevent unilateral decisions and reduce the risk of error or bias.

  2. Specifies qualifications for professionals involved in capacity determinations,. particularly for patients with mental illness or developmental/intellectual disabilities, ensuring that at least one evaluating practitioner has relevant expertise or experience, thus promoting more reliable and informed assessments.

  3. Mandates hospitals to establish and disclose written policies. regarding the training and credentials required for practitioners making concurring determinations, increasing transparency and accountability in the decision-making process.

  4. Clarifies and updates procedural roles,. such as prohibiting a physician who is also a patient’s appointed agent from assessing that patient’s capacity, and provides mechanisms for resolving disagreements between practitioners (e.g., referral to an ethics committee), to reduce conflicts of interest and improve oversight.

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Who cares

Headline styles

Clarify Incapacity Determination Rules

Plain English, a few words. Used as the page title.

Sponsors

Primary sponsor
Gustavo Rivera

Senator · Senate District 33

Chair, Health

No co-sponsors yet.

History

  1. Referred to health
  2. Referred to health

Companion bill

The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.

A4525Assembly

Update Incapacity Decision Process

In Assembly Committee · Codes · Sponsor J. Gary Pretlow

Impact 4 · Low0% to pass

Full text

5 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗

STATE OF NEW YORK

5938

2019-2020 Regular Sessions

IN SENATE

May 16, 2019

Introduced by Sen. RIVERA -- 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 procedure act, in relation to conforming and improving the process for determining incapacity

The People of the State of New York, represented in Senate and Assembly, 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.

§ 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

S. 5938 2

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-

S. 5938 3

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

S. 5938 4

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

S. 5938 5

Reflowed for reading: line numbers and page breaks removed. Cite the official text.

Sponsor's memo

Title of bill

An act to amend the public health law and the surro- gate's court procedure act, in relation to conforming and improving the process for determining incapacity

Purpose of 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 Family Health Care Decisions Act (FHCDA) (Ch. 8, Laws of 2010) and other laws that govern health care decisions, includ- ing life-sustaining treatment decisions, for patients who lack deci- sion-making capacity This bill 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

Section 1 amends PHL Section 2983 to renumber subdivisions 2 - 7.

Read the full memo (815 words)

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 develop- mental disability by providing that, for a patient in a hospital, nurs- ing 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.

Section 3 amends PHL § 2994-c(3) to clarify that a concurring determi- nation 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.

Section 4 amends PHL § 2994-cc, subdivisions 3 and 4 to eliminate redun- dant language and to change "concurrence of a second physician" to "concurrence of a health or social services practitioner." Clarify that the attending physician is providing an "initial" determination of inca- pacity, not a confirming determination; clarify that either the attend- ing physician or the concurring physician must have special qualifica- tions related to developmental disabilities only if the tending 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.

Section 9 is the effective date: ninety days after it becomes law.

Justification

By enacting Chapter 8 of the Laws of 2010, the Family Health Care Deci- sions 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 treat- ment 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 inter- action 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 to the qualifications of professionals who can determine the incapacity of a patient based on a developmental disability. Hospitals and nursing homes have found it extremely diffi- cult to locate professionals with the special qualifications now required by this law for 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 neces- sary qualifications for that service, just as they determine qualifica- tions for other professional services in their institutions and programs.

Legislative history

2014: S.7153 (Hannon) - Referred to Health

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 there- after.

Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.