STATE OF NEW YORK ________________________________________________________________________ 7277 2017-2018 Regular Sessions IN ASSEMBLY April 17, 2017 ___________ Introduced by M. of A. GOTTFRIED, D'URSO -- read once and referred to the Committee on Health AN ACT to amend the public health law, in relation to authorizing nurse practitioners to execute orders not to resuscitate and orders pertain- ing to life sustaining treatments The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2960 of the public health law, as added by chapter 2 818 of the laws of 1987, is amended to read as follows: 3 § 2960. Legislative findings and purpose. The legislature finds that, 4 although cardiopulmonary resuscitation has proved invaluable in the 5 prevention of sudden, unexpected death, it is appropriate for an attend- 6 ing physician or attending nurse practitioner, in certain circumstances, 7 to issue an order not to attempt cardiopulmonary resuscitation of a 8 patient where appropriate consent has been obtained. The legislature 9 further finds that there is a need to clarify and establish the rights 10 and obligations of patients, their families, and health care providers 11 regarding cardiopulmonary resuscitation and the issuance of orders not 12 to resuscitate. 13 § 2. Subdivisions 2, 5 and 20 of section 2961 of the public health 14 law, subdivisions 2 and 5 as amended by chapter 8 of the laws of 2010, 15 and subdivision 20 as added by chapter 818 of the laws of 1987 and as 16 renumbered by chapter 370 of the laws of 1991, are amended and two new 17 subdivisions 2-a and 16 are added to read as follows: 18 2. "Attending physician" means the physician selected by or assigned 19 to a patient in a hospital who has primary responsibility for the treat- 20 ment and care of the patient. Where more than one physician and/or nurse 21 practitioner shares such responsibility, any such physician or nurse 22 practitioner may act as the attending physician or attending nurse prac- 23 titioner pursuant to this article. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02551-01-7

A. 7277 2 1 2-a. "Attending nurse practitioner" means the nurse practitioner 2 selected by or assigned to a patient in a hospital who has primary 3 responsibility for the treatment and care of the patient. Where more 4 than one physician and/or nurse practitioner shares such responsibility, 5 any such physician or nurse practitioner may act as the attending physi- 6 cian or attending nurse practitioner pursuant to this article. 7 5. "Close friend" means any person, eighteen years of age or older, 8 who is a close friend of the patient, or relative of the patient (other 9 than a spouse, adult child, parent, brother or sister) who has main- 10 tained such regular contact with the patient as to be familiar with the 11 patient's activities, health, and religious or moral beliefs and who 12 presents a signed statement to that effect to the attending physician or 13 attending nurse practitioner. 14 16. "Nurse practitioner" means a nurse practitioner certified pursuant 15 to section sixty-nine hundred ten of the education law who is practicing 16 in accordance with subdivision three of section sixty-nine hundred two 17 of the education law. 18 20. "Reasonably available" means that a person to be contacted can be 19 contacted with diligent efforts by an attending physician, attending 20 nurse practitioner or another person acting on behalf of the attending 21 physician, attending nurse practitioner or the hospital. 22 § 3. Subdivisions 2 and 3 of section 2962 of the public health law, as 23 added by chapter 818 of the laws of 1987, are amended to read as 24 follows: 25 2. It shall be lawful for the attending physician or attending nurse 26 practitioner to issue an order not to resuscitate a patient, provided 27 that the order has been issued pursuant to the requirements of this 28 article. The order shall be included in writing in the patient's chart. 29 An order not to resuscitate shall be effective upon issuance. 30 3. Before obtaining, pursuant to this article, the consent of the 31 patient, or of the surrogate of the patient, or parent or legal guardian 32 of the minor patient, to an order not to resuscitate, the attending 33 physician or attending nurse practitioner shall provide to the person 34 giving consent information about the patient's diagnosis and prognosis, 35 the reasonably foreseeable risks and benefits of cardiopulmonary resus- 36 citation for the patient, and the consequences of an order not to resus- 37 citate. 38 § 4. Section 2963 of the public health law, as added by chapter 818 of 39 the laws of 1987, subdivision 1, paragraph (b) of subdivision 3 and 40 subdivision 4 as amended by chapter 8 of the laws of 2010, paragraph (c) 41 of subdivision 3 as amended by section 5 of part J of chapter 56 of the 42 laws of 2012, is amended to read as follows: 43 § 2963. Determination of capacity to make a decision regarding 44 cardiopulmonary resuscitation. 1. Every adult shall be presumed to have 45 the capacity to make a decision regarding cardiopulmonary resuscitation 46 unless determined otherwise pursuant to this section or pursuant to a 47 court order or unless a guardian is authorized to decide about health 48 care for the adult pursuant to article eighty-one of the mental hygiene 49 law or article seventeen-A of the surrogate's court procedure act. The 50 attending physician or attending nurse practitioner shall not rely on 51 the presumption stated in this subdivision if clinical indicia of inca- 52 pacity are present. 53 2. A determination that an adult patient lacks capacity shall be made 54 by the attending physician or attending nurse practitioner to a reason- 55 able degree of medical certainty. The determination shall be made in 56 writing and shall contain such attending physician's or attending nurse

A. 7277 3 1 practitioner's opinion regarding the cause and nature of the patient's 2 incapacity as well as its extent and probable duration. The determi- 3 nation shall be included in the patient's medical chart. 4 3. (a) At least one other physician, selected by a person authorized 5 by the hospital to make such selection, must concur in the determination 6 that an adult lacks capacity. The concurring determination shall be made 7 in writing after personal examination of the patient and shall contain 8 the physician's opinion regarding the cause and nature of the patient's 9 incapacity as well as its extent and probable duration. Each concurring 10 determination shall be included in the patient's medical chart. 11 (b) If the attending physician or attending nurse practitioner deter- 12 mines that a patient lacks capacity because of mental illness, the 13 concurring determination required by paragraph (a) of this subdivision 14 shall be provided by a physician licensed to practice medicine in New 15 York state, who is a diplomate or eligible to be certified by the Ameri- 16 can Board of Psychiatry and Neurology or who is certified by the Ameri- 17 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 18 certified by that board. 19 (c) If the attending physician or attending nurse practitioner deter- 20 mines that a patient lacks capacity because of a developmental disabili- 21 ty, the concurring determination required by paragraph (a) of this 22 subdivision shall be provided by a physician or psychologist employed by 23 a developmental disabilities services office named in section 13.17 of 24 the mental hygiene law, or who has been employed for a minimum of two 25 years to render care and service in a facility operated or licensed by 26 the office for people with developmental disabilities, or who has been 27 approved by the commissioner of developmental disabilities in accordance 28 with regulations promulgated by such commissioner. Such regulations 29 shall require that a physician or psychologist possess specialized 30 training or three years experience in treating developmental disabili- 31 ties. 32 4. Notice of a determination that the patient lacks capacity shall 33 promptly be given (a) to the patient, where there is any indication of 34 the patient's ability to comprehend such notice, together with a copy of 35 a statement prepared in accordance with section twenty-nine hundred 36 seventy-eight of this article, and (b) to the person on the surrogate 37 list highest in order of priority listed, when persons in prior subpara- 38 graphs are not reasonably available. Nothing in this subdivision shall 39 preclude or require notice to more than one person on the surrogate 40 list. 41 5. A determination that a patient lacks capacity to make a decision 42 regarding an order not to resuscitate pursuant to this section shall not 43 be construed as a finding that the patient lacks capacity for any other 44 purpose. 45 § 5. Subdivision 2 of section 2964 of the public health law, as added 46 by chapter 818 of the laws of 1987, is amended to read as follows: 47 2. (a) During hospitalization, an adult with capacity may express a 48 decision consenting to an order not to resuscitate orally in the pres- 49 ence of at least two witnesses eighteen years of age or older, one of 50 whom is a physician or nurse practitioner affiliated with the hospital 51 in which the patient is being treated. Any such decision shall be 52 recorded in the patient's medical chart. 53 (b) Prior to or during hospitalization, an adult with capacity may 54 express a decision consenting to an order not to resuscitate in writing, 55 dated and signed in the presence of at least two witnesses eighteen 56 years of age or older who shall sign the decision.

A. 7277 4 1 (c) An attending physician or attending nurse practitioner who is 2 provided with or informed of a decision pursuant to this subdivision 3 shall record or include the decision in the patient's medical chart if 4 the decision has not been recorded or included, and either: 5 (i) promptly issue an order not to resuscitate the patient or issue an 6 order at such time as the conditions, if any, specified in the decision 7 are met, and inform the hospital staff responsible for the patient's 8 care of the order; or 9 (ii) promptly make his or her objection to the issuance of such an 10 order and the reasons therefor known to the patient and either make all 11 reasonable efforts to arrange for the transfer of the patient to another 12 physician or nurse practitioner, if necessary, or promptly submit the 13 matter to the dispute mediation system. 14 (d) Prior to issuing an order not to resuscitate a patient who has 15 expressed a decision consenting to an order not to resuscitate under 16 specified medical conditions, the attending physician or attending nurse 17 practitioner must make a determination, to a reasonable degree of 18 medical certainty, that such conditions exist, and include the determi- 19 nation in the patient's medical chart. 20 § 6. Subdivision 5 of section 2964 of the public health law is renum- 21 bered subdivision 3. 22 § 7. Subdivisions 3 and 4 of section 2965 of the public health law, as 23 added by chapter 818 of the laws of 1987 and as renumbered by chapter 24 370 of the laws of 1991, paragraph (a) of subdivision 4 as amended by 25 chapter 370 of the laws of 1991 and paragraph (c) of subdivision 4 as 26 amended by chapter 8 of the laws of 2010, are amended to read as 27 follows: 28 3. (a) The surrogate shall make a decision regarding cardiopulmonary 29 resuscitation on the basis of the adult patient's wishes including a 30 consideration of the patient's religious and moral beliefs, or, if the 31 patient's wishes are unknown and cannot be ascertained, on the basis of 32 the patient's best interests. 33 (b) Notwithstanding any law to the contrary, the surrogate shall have 34 the same right as the patient to receive medical information and medical 35 records. 36 (c) A surrogate may consent to an order not to resuscitate on behalf 37 of an adult patient only if there has been a determination by an attend- 38 ing physician or attending nurse practitioner with the concurrence of 39 another physician or nurse practitioner selected by a person authorized 40 by the hospital to make such selection, given after personal examination 41 of the patient that, to a reasonable degree of medical certainty: 42 (i) the patient has a terminal condition; or 43 (ii) the patient is permanently unconscious; or 44 (iii) resuscitation would be medically futile; or 45 (iv) resuscitation would impose an extraordinary burden on the patient 46 in light of the patient's medical condition and the expected outcome of 47 resuscitation for the patient. 48 Each determination shall be included in the patient's medical chart. 49 4. (a) A surrogate shall express a decision consenting to an order not 50 to resuscitate either (i) in writing, dated, and signed in the presence 51 of one witness eighteen years of age or older who shall sign the deci- 52 sion, or (ii) orally, to two persons eighteen years of age or older, one 53 of whom is a physician or nurse practitioner affiliated with the hospi- 54 tal in which the patient is being treated. Any such decision shall be 55 recorded in the patient's medical chart.

A. 7277 5 1 (b) The attending physician or attending nurse practitioner who is 2 provided with the decision of a surrogate shall include the decision in 3 the patient's medical chart and, if the surrogate has consented to the 4 issuance of an order not to resuscitate, shall either: 5 (i) promptly issue an order not to resuscitate the patient and inform 6 the hospital staff responsible for the patient's care of the order; or 7 (ii) promptly make the attending physician's or attending nurse prac- 8 titioner's objection to the issuance of such an order known to the 9 surrogate and either make all reasonable efforts to arrange for the 10 transfer of the patient to another physician or nurse practitioner, if 11 necessary, or promptly refer the matter to the dispute mediation system. 12 (c) If the attending physician or attending nurse practitioner has 13 actual notice of opposition to a surrogate's consent to an order not to 14 resuscitate by any person on the surrogate list, the physician or nurse 15 practitioner shall submit the matter to the dispute mediation system and 16 such order shall not be issued or shall be revoked in accordance with 17 the provisions of subdivision three of section twenty-nine hundred 18 seventy-two of this article. 19 § 8. Section 2966 of the public health law, as added by chapter 818 of 20 the laws of 1987, subdivision 3 as amended by chapter 8 of the laws of 21 2010, is amended to read as follows: 22 § 2966. Decision-making on behalf of an adult patient without capacity 23 for whom no surrogate is available. 1. If no surrogate is reasonably 24 available, willing to make a decision regarding issuance of an order not 25 to resuscitate, and competent to make a decision regarding issuance of 26 an order not to resuscitate on behalf of an adult patient who lacks 27 capacity and who had not previously expressed a decision regarding 28 cardiopulmonary resuscitation, an attending physician or attending nurse 29 practitioner (a) may issue an order not to resuscitate the patient, 30 provided that the attending physician or attending nurse practitioner 31 determines, in writing, that, to a reasonable degree of medical certain- 32 ty, resuscitation would be medically futile, and another physician or 33 nurse practitioner selected by a person authorized by the hospital to 34 make such selection, after personal examination of the patient, reviews 35 and concurs in writing with such determination, or, (b) shall issue an 36 order not to resuscitate the patient, provided that, pursuant to subdi- 37 vision one of section twenty-nine hundred seventy-six of this article, a 38 court has granted a judgment directing the issuance of such an order. 39 [3] 2. Notwithstanding any other provision of this section, where a 40 decision to consent to an order not to resuscitate has been made, notice 41 of the decision shall be given to the patient where there is any indi- 42 cation of the patient's ability to comprehend such notice. If the 43 patient objects, an order not to resuscitate shall not be issued. 44 § 9. Section 2967 of the public health law, as added by chapter 818 of 45 the laws of 1987, paragraph (b) of subdivision 2, subdivision 3 and 46 paragraphs (a) and (b) of subdivision 4 as amended by chapter 370 of the 47 laws of 1991, is amended to read as follows: 48 § 2967. Decision-making on behalf of a minor patient. 1. An attending 49 physician or attending nurse practitioner, in consultation with a 50 minor's parent or legal guardian, shall determine whether a minor has 51 the capacity to make a decision regarding resuscitation. 52 2. (a) The consent of a minor's parent or legal guardian and the 53 consent of the minor, if the minor has capacity, must be obtained prior 54 to issuing an order not to resuscitate the minor. 55 (b) Where the attending physician or attending nurse practitioner has 56 reason to believe that there is another parent or a non-custodial parent

A. 7277 6 1 who has not been informed of a decision to issue an order not to resus- 2 citate the minor, the attending physician or attending nurse practition- 3 er, or someone acting on behalf of the attending physician or attending 4 nurse practitioner, shall make reasonable efforts to determine if the 5 uninformed parent or non-custodial parent has maintained substantial and 6 continuous contact with the minor and, if so, shall make diligent 7 efforts to notify that parent or non-custodial parent of the decision 8 prior to issuing the order. 9 3. A parent or legal guardian may consent to an order not to resusci- 10 tate on behalf of a minor only if there has been a written determination 11 by the attending physician or attending nurse practitioner, with the 12 written concurrence of another physician or nurse practitioner selected 13 by a person authorized by the hospital to make such selections given 14 after personal examination of the patient, that, to a reasonable degree 15 of medical certainty, the minor suffers from one of the medical condi- 16 tions set forth in paragraph (c) of subdivision three of section twen- 17 ty-nine hundred sixty-five of this article. Each determination shall be 18 included in the patient's medical chart. 19 4. (a) A parent or legal guardian of a minor, in making a decision 20 regarding cardiopulmonary resuscitation, shall consider the minor 21 patient's wishes, including a consideration of the minor patient's reli- 22 gious and moral beliefs, and shall express a decision consenting to 23 issuance of an order not to resuscitate either (i) in writing, dated and 24 signed in the presence of one witness eighteen years of age or older who 25 shall sign the decision, or (ii) orally, to two persons eighteen years 26 of age or older, one of whom is a physician or nurse practitioner affil- 27 iated with the hospital in which the patient is being treated. Any such 28 decision shall be recorded in the patient's medical chart. 29 (b) The attending physician or attending nurse practitioner who is 30 provided with the decision of a minor's parent or legal guardian, 31 expressed pursuant to this subdivision, and of the minor if the minor 32 has capacity, shall include such decision or decisions in the minor's 33 medical chart and shall comply with the provisions of paragraph (b) of 34 subdivision four of section twenty-nine hundred sixty-five of this arti- 35 cle. 36 (c) If the attending physician or attending nurse practitioner has 37 actual notice of the opposition of a parent or non-custodial parent to 38 consent by another parent to an order not to resuscitate a minor, the 39 physician or nurse practitioner shall submit the matter to the dispute 40 mediation system and such order shall not be issued or shall be revoked 41 in accordance with the provisions of subdivision three of section twen- 42 ty-nine hundred seventy-two of this article. 43 § 10. Section 2969 of the public health law, as added by chapter 818 44 of the laws of 1987, subdivision 2 as amended by chapter 370 of the laws 45 of 1991, is amended to read as follows: 46 § 2969. Revocation of consent to order not to resuscitate. 1. A person 47 may, at any time, revoke his or her consent to an order not to resusci- 48 tate himself or herself by making either a written or an oral declara- 49 tion to a physician or member of the nursing staff at the hospital where 50 he or she is being treated, or by any other act evidencing a specific 51 intent to revoke such consent. 52 2. Any surrogate, parent, or legal guardian may at any time revoke his 53 or her consent to an order not to resuscitate a patient by (a) notifying 54 a physician or member of the nursing staff of the revocation of consent 55 in writing, dated and signed, or (b) orally notifying the attending

A. 7277 7 1 physician or attending nurse practitioner in the presence of a witness 2 eighteen years of age or older. 3 3. Any physician or nurse practitioner who is informed of or provided 4 with a revocation of consent pursuant to this section shall immediately 5 include the revocation in the patient's chart, cancel the order, and 6 notify the hospital staff responsible for the patient's care of the 7 revocation and cancellation. Any member of the nursing staff, other than 8 a nurse practitioner, who is informed of or provided with a revocation 9 of consent pursuant to this section shall immediately notify a physician 10 or nurse practitioner of such revocation. 11 § 11. Section 2970 of the public health law, as added by chapter 818 12 of the laws of 1987, subdivision 1 as amended by chapter 8 of the laws 13 of 2010, paragraph (b) of subdivision 2 as amended by chapter 370 of the 14 laws of 1991, is amended to read as follows: 15 § 2970. Physician and nurse practitioner review of the order not to 16 resuscitate. 1. For each patient for whom an order not to resuscitate 17 has been issued, the attending physician or attending nurse practitioner 18 shall review the patient's chart to determine if the order is still 19 appropriate in light of the patient's condition and shall indicate on 20 the patient's chart that the order has been reviewed each time the 21 patient is required to be seen by a physician but at least every sixty 22 days. 23 Failure to comply with this subdivision shall not render an order not 24 to resuscitate ineffective. 25 2. (a) If the attending physician or attending nurse practitioner 26 determines at any time that an order not to resuscitate is no longer 27 appropriate because the patient's medical condition has improved, the 28 physician or nurse practitioner shall immediately notify the person who 29 consented to the order. Except as provided in paragraph (b) of this 30 subdivision, if such person declines to revoke consent to the order, the 31 physician or nurse practitioner shall promptly (i) make reasonable 32 efforts to arrange for the transfer of the patient to another physician 33 or (ii) submit the matter to the dispute mediation system. 34 (b) If the order not to resuscitate was entered upon the consent of a 35 surrogate, parent, or legal guardian and the attending physician or 36 attending nurse practitioner who issued the order, or, if unavailable, 37 another attending physician or attending nurse practitioner at any time 38 determines that the patient does not suffer from one of the medical 39 conditions set forth in paragraph (c) of subdivision three of section 40 twenty-nine hundred sixty-five of this article, the attending physician 41 or attending nurse practitioner shall immediately include such determi- 42 nation in the patient's chart, cancel the order, and notify the person 43 who consented to the order and all hospital staff responsible for the 44 patient's care of the cancellation. 45 (c) If an order not to resuscitate was entered upon the consent of a 46 surrogate and the patient at any time gains or regains capacity, the 47 attending physician or attending nurse practitioner who issued the 48 order, or, if unavailable, another attending physician or attending 49 nurse practitioner shall immediately cancel the order and notify the 50 person who consented to the order and all hospital staff directly 51 responsible for the patient's care of the cancellation. 52 § 12. The opening paragraph and subdivision 2 of section 2971 of the 53 public health law, as amended by chapter 370 of the laws of 1991, are 54 amended to read as follows: 55 If a patient for whom an order not to resuscitate has been issued is 56 transferred from a hospital to a different hospital the order shall

A. 7277 8 1 remain effective, unless revoked pursuant to this article, until the 2 attending physician or attending nurse practitioner first examines the 3 transferred patient, whereupon the attending physician or attending 4 nurse practitioner must either: 5 2. Cancel the order not to resuscitate, provided the attending physi- 6 cian or attending nurse practitioner immediately notifies the person who 7 consented to the order and the hospital staff directly responsible for 8 the patient's care of the cancellation. Such cancellation does not 9 preclude the entry of a new order pursuant to this article. 10 § 13. Subdivisions 1, 2 and 4 of section 2972 of the public health 11 law, subdivisions 1 and 4 as added by chapter 818 of the laws of 1987, 12 paragraph (b) of subdivision 1 as amended by chapter 370 of the laws of 13 1991 and subdivision 2 as amended by chapter 8 of the laws of 2010, are 14 amended to read as follows: 15 1. (a) Each hospital shall establish a mediation system for the 16 purpose of mediating disputes regarding the issuance of orders not to 17 resuscitate. 18 (b) The dispute mediation system shall be described in writing and 19 adopted by the hospital's governing authority. It may utilize existing 20 hospital resources, such as a patient advocate's office or hospital 21 chaplain's office, or it may utilize a body created specifically for 22 this purpose, but, in the event a dispute involves a patient deemed to 23 lack capacity pursuant to (i) paragraph (b) of subdivision three of 24 section twenty-nine hundred sixty-three of this article, the system must 25 include a physician or nurse practitioner eligible to provide a concur- 26 ring determination pursuant to such subdivision, or a family member or 27 guardian of the person of a person with a mental illness of the same or 28 similar nature, or (ii) paragraph (c) of subdivision three of section 29 twenty-nine hundred sixty-three of this article, the system must include 30 a physician or nurse practitioner eligible to provide a concurring 31 determination pursuant to such subdivision, or a family member or guard- 32 ian of the person of a person with a developmental disability of the 33 same or similar nature. 34 2. The dispute mediation system shall be authorized to mediate any 35 dispute, including disputes regarding the determination of the patient's 36 capacity, arising under this article between the patient and an attend- 37 ing physician, attending nurse practitioner or the hospital that is 38 caring for the patient and, if the patient is a minor, the patient's 39 parent, or among an attending physician, an attending nurse 40 practitioner, a parent, non-custodial parent, or legal guardian of a 41 minor patient, any person on the surrogate list, and the hospital that 42 is caring for the patient. 43 4. If a dispute between a patient who expressed a decision rejecting 44 cardiopulmonary resuscitation and an attending physician, attending 45 nurse practitioner or the hospital that is caring for the patient is 46 submitted to the dispute mediation system, and either: 47 (a) the dispute mediation system has concluded its efforts to resolve 48 the dispute, or 49 (b) seventy-two hours have elapsed from the time of submission without 50 resolution of the dispute, whichever shall occur first, the attending 51 physician or attending nurse practitioner shall either: (i) promptly 52 issue an order not to resuscitate the patient or issue the order at such 53 time as the conditions, if any, specified in the decision are met, and 54 inform the hospital staff responsible for the patient's care of the 55 order; or (ii) promptly arrange for the transfer of the patient to 56 another physician, nurse practitioner or hospital.

A. 7277 9 1 § 14. Subdivision 1 of section 2973 of the public health law, as 2 amended by chapter 8 of the laws of 2010, is amended to read as follows: 3 1. The patient, an attending physician, attending nurse practitioner, 4 a parent, non-custodial parent, or legal guardian of a minor patient, 5 any person on the surrogate list, the hospital that is caring for the 6 patient and the facility director, may commence a special proceeding 7 pursuant to article four of the civil practice law and rules, in a court 8 of competent jurisdiction, with respect to any dispute arising under 9 this article, except that the decision of a patient not to consent to 10 issuance of an order not to resuscitate may not be subjected to judicial 11 review. In any proceeding brought pursuant to this subdivision challeng- 12 ing a decision regarding issuance of an order not to resuscitate on the 13 ground that the decision is contrary to the patient's wishes or best 14 interests, the person or entity challenging the decision must show, by 15 clear and convincing evidence, that the decision is contrary to the 16 patient's wishes including consideration of the patient's religious and 17 moral beliefs, or, in the absence of evidence of the patient's wishes, 18 that the decision is contrary to the patient's best interests. In any 19 other proceeding brought pursuant to this subdivision, the court shall 20 make its determination based upon the applicable substantive standards 21 and procedures set forth in this article. 22 § 15. Section 2976 of the public health law, as added by chapter 818 23 of the laws of 1987, is amended to read as follows: 24 § 2976. Judicially approved order not to resuscitate. 1. If no surro- 25 gate is reasonably available, willing to make a decision regarding issu- 26 ance of an order not to resuscitate, and competent to make a decision 27 regarding issuance of an order not to resuscitate on behalf of an adult 28 patient who lacks capacity and who had not previously expressed a deci- 29 sion regarding cardiopulmonary resuscitation pursuant to this article, 30 an attending physician or attending nurse practitioner or hospital may 31 commence a special proceeding pursuant to article four of the civil 32 practice law and rules, in a court of competent jurisdiction, for a 33 judgment directing the physician or nurse practitioner to issue an order 34 not to resuscitate where the patient has a terminal condition, is perma- 35 nently unconscious, or resuscitation would impose an extraordinary 36 burden on the patient in light of the patient's medical condition and 37 the expected outcome of resuscitation for the patient, and issuance of 38 an order not to resuscitate is consistent with the patient's wishes 39 including a consideration of the patient's religious and moral beliefs 40 or, in the absence of evidence of the patient's wishes, the patient's 41 best interests. 42 2. Nothing in this article shall be construed to preclude a court of 43 competent jurisdiction from approving the issuance of an order not to 44 resuscitate under circumstances other than those under which such an 45 order may be issued pursuant to this article. 46 § 16. Subdivisions 2 and 4 of section 2994-a of the public health law, 47 as added by chapter 8 of the laws of 2010, are amended and two new 48 subdivisions 2-a and 22-a are added to read as follows: 49 2. "Attending physician" means a physician, selected by or assigned to 50 a patient pursuant to hospital policy, who has primary responsibility 51 for the treatment and care of the patient. Where more than one physician 52 and/or nurse practitioner shares such responsibility, or where a physi- 53 cian or nurse practitioner is acting on the attending physician's or 54 attending nurse practitioner's behalf, any such physician or nurse prac- 55 titioner may act as an attending physician or attending nurse practi- 56 tioner pursuant to this article.

A. 7277 10 1 2-a. "Attending nurse practitioner" means a nurse practitioner, 2 selected by or assigned to a patient pursuant to hospital policy, who 3 has primary responsibility for the treatment and care of the patient. 4 Where more than one physician and/or nurse practitioner shares such 5 responsibility, or where a physician or nurse practitioner is acting on 6 the attending physician's or attending nurse practitioner's behalf, any 7 such physician or nurse practitioner may act as an attending physician 8 or attending nurse practitioner pursuant to this article. 9 4. "Close friend" means any person, eighteen years of age or older, 10 who is a close friend of the patient, or a relative of the patient 11 (other than a spouse, adult child, parent, brother or sister), who has 12 maintained such regular contact with the patient as to be familiar with 13 the patient's activities, health, and religious or moral beliefs, and 14 who presents a signed statement to that effect to the attending physi- 15 cian or attending nurse practitioner. 16 22-a. "Nurse practitioner" means a nurse practitioner certified pursu- 17 ant to section sixty-nine hundred ten of the education law who is prac- 18 ticing in accordance with subdivision three of section sixty-nine 19 hundred two of the education law. 20 § 17. Subdivisions 2 and 3 of section 2994-b of the public health law, 21 as added by chapter 8 of the laws of 2010, are amended to read as 22 follows: 23 2. Prior to seeking or relying upon a health care decision by a surro- 24 gate for a patient under this article, the attending physician or 25 attending nurse practitioner shall make reasonable efforts to determine 26 whether the patient has a health care agent appointed pursuant to arti- 27 cle twenty-nine-C of this chapter. If so, health care decisions for the 28 patient shall be governed by such article, and shall have priority over 29 decisions by any other person except the patient or as otherwise 30 provided in the health care proxy. 31 3. Prior to seeking or relying upon a health care decision by a surro- 32 gate for a patient under this article, if the attending physician or 33 attending nurse practitioner has reason to believe that the patient has 34 a history of receiving services for mental retardation or a develop- 35 mental disability; it reasonably appears to the attending physician or 36 attending nurse practitioner that the patient has mental retardation or 37 a developmental disability; or the attending physician or attending 38 nurse practitioner has reason to believe that the patient has been 39 transferred from a mental hygiene facility operated or licensed by the 40 office of mental health, then such physician or nurse practitioner shall 41 make reasonable efforts to determine whether paragraphs (a), (b) or (c) 42 of this subdivision are applicable: 43 (a) If the patient has a guardian appointed by a court pursuant to 44 article seventeen-A of the surrogate's court procedure act, health care 45 decisions for the patient shall be governed by section seventeen hundred 46 fifty-b of the surrogate's court [proceedure] procedure act and not by 47 this article. 48 (b) If a patient does not have a guardian appointed by a court pursu- 49 ant to article seventeen-A of the surrogate's court procedure act but 50 falls within the class of persons described in paragraph (a) of subdivi- 51 sion one of section seventeen hundred fifty-b of such act, decisions to 52 withdraw or withhold life-sustaining treatment for the patient shall be 53 governed by section seventeen hundred fifty-b of the surrogate's court 54 procedure act and not by this article. 55 (c) If a health care decision for a patient cannot be made under para- 56 graphs (a) or (b) of this subdivision, but consent for the decision may

A. 7277 11 1 be provided pursuant to the mental hygiene law or regulations of the 2 office of mental health or the office [of mental retardation and] for 3 people with developmental disabilities, then the decision shall be 4 governed by such statute or regulations and not by this article. 5 § 18. Subdivisions 2, 3 and 7 of section 2994-c of the public health 6 law, as added by chapter 8 of the laws of 2010, paragraph (b) of subdi- 7 vision 3 as amended by chapter 167 of the laws of 2011 and subparagraph 8 (ii) of paragraph (c) of subdivision 3 as amended by section 8 of part J 9 of chapter 56 of the laws of 2012, are amended to read as follows: 10 2. Initial determination by attending physician or attending nurse 11 practitioner. An attending physician or attending nurse practitioner 12 shall make an initial determination that an adult patient lacks deci- 13 sion-making capacity to a reasonable degree of medical certainty. Such 14 determination shall include an assessment of the cause and extent of the 15 patient's incapacity and the likelihood that the patient will regain 16 decision-making capacity. 17 3. Concurring determinations. (a) An initial determination that a 18 patient lacks decision-making capacity shall be subject to a concurring 19 determination, independently made, where required by this subdivision. A 20 concurring determination shall include an assessment of the cause and 21 extent of the patient's incapacity and the likelihood that the patient 22 will regain decision-making capacity, and shall be included in the 23 patient's medical record. Hospitals shall adopt written policies identi- 24 fying the training and credentials of health or social services practi- 25 tioners qualified to provide concurring determinations of incapacity. 26 (b) (i) In a residential health care facility, a health or social 27 services practitioner employed by or otherwise formally affiliated with 28 the facility must independently determine whether an adult patient lacks 29 decision-making capacity. 30 (ii) In a general hospital a health or social services practitioner 31 employed by or otherwise formally affiliated with the facility must 32 independently determine whether an adult patient lacks decision-making 33 capacity if the surrogate's decision concerns the withdrawal or with- 34 holding of life-sustaining treatment. 35 (iii) With respect to decisions regarding hospice care for a patient 36 in a general hospital or residential health care facility, the health or 37 social services practitioner must be employed by or otherwise formally 38 affiliated with the general hospital or residential health care facili- 39 ty. 40 (c) (i) If the attending physician or attending nurse practitioner 41 makes an initial determination that a patient lacks decision-making 42 capacity because of mental illness, either such physician must have the 43 following qualifications, or another physician with the following quali- 44 fications must independently determine whether the patient lacks deci- 45 sion-making capacity: a physician licensed to practice medicine in New 46 York state, who is a diplomate or eligible to be certified by the Ameri- 47 can Board of Psychiatry and Neurology or who is certified by the Ameri- 48 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 49 certified by that board. A record of such consultation shall be included 50 in the patient's medical record. 51 (ii) If the attending physician or attending nurse practitioner makes 52 an initial determination that a patient lacks decision-making capacity 53 because of a developmental disability, either such physician or nurse 54 practitioner must have the following qualifications, or another profes- 55 sional with the following qualifications must independently determine 56 whether the patient lacks decision-making capacity: a physician or clin-

A. 7277 12 1 ical psychologist who either is employed by a developmental disabilities 2 services office named in section 13.17 of the mental hygiene law, or who 3 has been employed for a minimum of two years to render care and service 4 in a facility operated or licensed by the office for people with devel- 5 opmental disabilities, or has been approved by the commissioner of 6 developmental disabilities in accordance with regulations promulgated by 7 such commissioner. Such regulations shall require that a physician or 8 clinical psychologist possess specialized training or three years expe- 9 rience in treating developmental disabilities. A record of such consul- 10 tation shall be included in the patient's medical record. 11 (d) If an attending physician or attending nurse practitioner has 12 determined that the patient lacks decision-making capacity and if the 13 health or social services practitioner consulted for a concurring deter- 14 mination disagrees with the attending physician's or the attending nurse 15 practitioner's determination, the matter shall be referred to the ethics 16 review committee if it cannot otherwise be resolved. 17 7. Confirmation of continued lack of decision-making capacity. An 18 attending physician or attending nurse practitioner shall confirm the 19 adult patient's continued lack of decision-making capacity before 20 complying with health care decisions made pursuant to this article, 21 other than those decisions made at or about the time of the initial 22 determination. A concurring determination of the patient's continued 23 lack of decision-making capacity shall be required if the subsequent 24 health care decision concerns the withholding or withdrawal of life-sus- 25 taining treatment. Health care providers shall not be required to inform 26 the patient or surrogate of the confirmation. 27 § 19. Subdivisions 2, 3 and 5 of section 2994-d of the public health 28 law, as added by chapter 8 of the laws of 2010, the subdivision heading 29 and the opening paragraph of subdivision 5 as amended by chapter 167 of 30 the laws of 2011, are amended to read as follows: 31 2. Restrictions on who may be a surrogate. An operator, administrator, 32 or employee of a hospital or a mental hygiene facility from which the 33 patient was transferred, or a physician or nurse practitioner who has 34 privileges at the hospital or a health care provider under contract with 35 the hospital may not serve as the surrogate for any adult who is a 36 patient of such hospital, unless such individual is related to the 37 patient by blood, marriage, domestic partnership, or adoption, or is a 38 close friend of the patient whose friendship with the patient preceded 39 the patient's admission to the facility. If a physician or nurse practi- 40 tioner serves as surrogate, the physician or nurse practitioner shall 41 not act as the patient's attending physician or attending nurse practi- 42 tioner after his or her authority as surrogate begins. 43 3. Authority and duties of surrogate. (a) Scope of surrogate's author- 44 ity. 45 (i) Subject to the standards and limitations of this article, the 46 surrogate shall have the authority to make any and all health care deci- 47 sions on the adult patient's behalf that the patient could make. 48 (ii) Nothing in this article shall obligate health care providers to 49 seek the consent of a surrogate if an adult patient has already made a 50 decision about the proposed health care, expressed orally or in writing 51 or, with respect to a decision to withdraw or withhold life-sustaining 52 treatment expressed either orally during hospitalization in the presence 53 of two witnesses eighteen years of age or older, at least one of whom is 54 a health or social services practitioner affiliated with the hospital, 55 or in writing. If an attending physician or attending nurse practitioner 56 relies on the patient's prior decision, the physician or nurse practi-

A. 7277 13 1 tioner shall record the prior decision in the patient's medical record. 2 If a surrogate has already been designated for the patient, the attend- 3 ing physician or attending nurse practitioner shall make reasonable 4 efforts to notify the surrogate prior to implementing the decision; 5 provided that in the case of a decision to withdraw or withhold life- 6 sustaining treatment, the attending physician or attending nurse practi- 7 tioner shall make diligent efforts to notify the surrogate and, if 8 unable to notify the surrogate, shall document the efforts that were 9 made to do so. 10 (b) Commencement of surrogate's authority. The surrogate's authority 11 shall commence upon a determination, made pursuant to section twenty- 12 nine hundred ninety-four-c of this article, that the adult patient lacks 13 decision-making capacity and upon identification of a surrogate pursuant 14 to subdivision one of this section. In the event an attending physician 15 or nurse practitioner determines that the patient has regained deci- 16 sion-making capacity, the authority of the surrogate shall cease. 17 (c) Right and duty to be informed. Notwithstanding any law to the 18 contrary, the surrogate shall have the right to receive medical informa- 19 tion and medical records necessary to make informed decisions about the 20 patient's health care. Health care providers shall provide and the 21 surrogate shall seek information necessary to make an informed decision, 22 including information about the patient's diagnosis, prognosis, the 23 nature and consequences of proposed health care, and the benefits and 24 risks of and alternative to proposed health care. 25 5. Decisions to withhold or withdraw life-sustaining treatment. In 26 addition to the standards set forth in subdivision four of this section, 27 decisions by surrogates to withhold or withdraw life-sustaining treat- 28 ment (including decisions to accept a hospice plan of care that provides 29 for the withdrawal or withholding of life-sustaining treatment) shall be 30 authorized only if the following conditions are satisfied, as applica- 31 ble: 32 (a)(i) Treatment would be an extraordinary burden to the patient and 33 an attending physician or attending nurse practitioner determines, with 34 the independent concurrence of another physician or nurse practitioner, 35 that, to a reasonable degree of medical certainty and in accord with 36 accepted medical standards, (A) the patient has an illness or injury 37 which can be expected to cause death within six months, whether or not 38 treatment is provided; or (B) the patient is permanently unconscious; or 39 (ii) The provision of treatment would involve such pain, suffering or 40 other burden that it would reasonably be deemed inhumane or extraor- 41 dinarily burdensome under the circumstances and the patient has an irre- 42 versible or incurable condition, as determined by an attending physician 43 or attending nurse practitioner with the independent concurrence of 44 another physician or nurse practitioner to a reasonable degree of 45 medical certainty and in accord with accepted medical standards. 46 (b) In a residential health care facility, a surrogate shall have the 47 authority to refuse life-sustaining treatment under subparagraph (ii) of 48 paragraph (a) of this subdivision only if the ethics review committee, 49 including at least one physician or nurse practitioner who is not 50 directly responsible for the patient's care, or a court of competent 51 jurisdiction, reviews the decision and determines that it meets the 52 standards set forth in this article. This requirement shall not apply to 53 a decision to withhold cardiopulmonary resuscitation. 54 (c) In a general hospital, if the attending physician or attending 55 nurse practitioner objects to a surrogate's decision, under subparagraph 56 (ii) of paragraph (a) of this subdivision, to withdraw or withhold

A. 7277 14 1 nutrition and hydration provided by means of medical treatment, the 2 decision shall not be implemented until the ethics review committee, 3 including at least one physician or nurse practitioner who is not 4 directly responsible for the patient's care, or a court of competent 5 jurisdiction, reviews the decision and determines that it meets the 6 standards set forth in this subdivision and subdivision four of this 7 section. 8 (d) Providing nutrition and hydration orally, without reliance on 9 medical treatment, is not health care under this article and is not 10 subject to this article. 11 (e) Expression of decisions. The surrogate shall express a decision to 12 withdraw or withhold life-sustaining treatment either orally to an 13 attending physician or attending nurse practitioner or in writing. 14 § 20. Subdivisions 2 and 3 of section 2994-e of the public health law, 15 as added by chapter 8 of the laws of 2010, are amended to read as 16 follows: 17 2. Decision-making standards and procedures for minor patient. (a) The 18 parent or guardian of a minor patient shall make decisions in accordance 19 with the minor's best interests, consistent with the standards set forth 20 in subdivision four of section twenty-nine hundred ninety-four-d of this 21 article, taking into account the minor's wishes as appropriate under the 22 circumstances. 23 (b) An attending physician or attending nurse practitioner, in consul- 24 tation with a minor's parent or guardian, shall determine whether a 25 minor patient has decision-making capacity for a decision to withhold or 26 withdraw life-sustaining treatment. If the minor has such capacity, a 27 parent's or guardian's decision to withhold or withdraw life-sustaining 28 treatment for the minor may not be implemented without the minor's 29 consent. 30 (c) Where a parent or guardian of a minor patient has made a decision 31 to withhold or withdraw life-sustaining treatment and an attending 32 physician or attending nurse practitioner has reason to believe that the 33 minor patient has a parent or guardian who has not been informed of the 34 decision, including a non-custodial parent or guardian, an attending 35 physician,attending nurse practitioner or someone acting on his or her 36 behalf, shall make reasonable efforts to determine if the uninformed 37 parent or guardian has maintained substantial and continuous contact 38 with the minor and, if so, shall make diligent efforts to notify that 39 parent or guardian prior to implementing the decision. 40 3. Decision-making standards and procedures for emancipated minor 41 patient. (a) If an attending physician or attending nurse practitioner 42 determines that a patient is an emancipated minor patient with deci- 43 sion-making capacity, the patient shall have the authority to decide 44 about life-sustaining treatment. Such authority shall include a decision 45 to withhold or withdraw life-sustaining treatment if an attending physi- 46 cian or attending nurse practitioner and the ethics review committee 47 determine that the decision accords with the standards for surrogate 48 decisions for adults, and the ethics review committee approves the deci- 49 sion. 50 (b) If the hospital can with reasonable efforts ascertain the identity 51 of the parents or guardian of an emancipated minor patient, the hospital 52 shall notify such persons prior to withholding or withdrawing life-sus- 53 taining treatment pursuant to this subdivision. 54 § 21. Section 2994-f of the public health law, as added by chapter 8 55 of the laws of 2010, is amended to read as follows:

A. 7277 15 1 § 2994-f. Obligations of attending physician or attending nurse prac- 2 titioner. 1. An attending physician or attending nurse practitioner 3 informed of a decision to withdraw or withhold life-sustaining treatment 4 made pursuant to the standards of this article shall record the decision 5 in the patient's medical record, review the medical basis for the deci- 6 sion, and shall either: (a) implement the decision, or (b) promptly make 7 his or her objection to the decision and the reasons for the objection 8 known to the decision-maker, and either make all reasonable efforts to 9 arrange for the transfer of the patient to another physician or nurse 10 practitioner, if necessary, or promptly refer the matter to the ethics 11 review committee. 12 2. If an attending physician or attending nurse practitioner has actu- 13 al notice of the following objections or disagreements, he or she shall 14 promptly refer the matter to the ethics review committee if the 15 objection or disagreement cannot otherwise be resolved: 16 (a) A health or social services practitioner consulted for a concur- 17 ring determination that an adult patient lacks decision-making capacity 18 disagrees with the attending physician's or attending nurse practition- 19 er's determination; or 20 (b) Any person on the surrogate list objects to the designation of the 21 surrogate pursuant to subdivision one of section twenty-nine hundred 22 ninety-four-d of this article; or 23 (c) Any person on the surrogate list objects to a surrogate's deci- 24 sion; or 25 (d) A parent or guardian of a minor patient objects to the decision by 26 another parent or guardian of the minor; or 27 (e) A minor patient refuses life-sustaining treatment, and the minor's 28 parent or guardian wishes the treatment to be provided, or the minor 29 patient objects to an attending physician's or attending nurse practi- 30 tioner's determination about decision-making capacity or recommendation 31 about life-sustaining treatment. 32 3. Notwithstanding the provisions of this section or subdivision one 33 of section twenty-nine hundred ninety-four-q of this article, if a 34 surrogate directs the provision of life-sustaining treatment, the denial 35 of which in reasonable medical judgment would be likely to result in the 36 death of the patient, a hospital or individual health care provider that 37 does not wish to provide such treatment shall nonetheless comply with 38 the surrogate's decision pending either transfer of the patient to a 39 willing hospital or individual health care provider, or judicial review 40 in accordance with section twenty-nine hundred ninety-four-r of this 41 article. 42 § 22. Subdivisions 3,4,5, 5-a and 6 of section 2994-g of the public 43 health law, subdivisions 3, 4, 5 and 6 as added by chapter 8 of the laws 44 of 2010, subparagraph (iii) of paragraph (b) of subdivision 4 as amended 45 by chapter 167 of the laws of 2011 and subdivision 5-a as added by chap- 46 ter 107 of the laws of 2015, are amended to read as follows: 47 3. Routine medical treatment. (a) For purposes of this subdivision, 48 "routine medical treatment" means any treatment, service, or procedure 49 to diagnose or treat an individual's physical or mental condition, such 50 as the administration of medication, the extraction of bodily fluids for 51 analysis, or dental care performed with a local anesthetic, for which 52 health care providers ordinarily do not seek specific consent from the 53 patient or authorized representative. It shall not include the long-term 54 provision of treatment such as ventilator support or a nasogastric tube 55 but shall include such treatment when provided as part of post-operative

A. 7277 16 1 care or in response to an acute illness and recovery is reasonably 2 expected within one month or less. 3 (b) An attending physician or attending nurse practitioner shall be 4 authorized to decide about routine medical treatment for an adult 5 patient who has been determined to lack decision-making capacity pursu- 6 ant to section twenty-nine hundred ninety-four-c of this article. Noth- 7 ing in this subdivision shall require health care providers to obtain 8 specific consent for treatment where specific consent is not otherwise 9 required by law. 10 4. Major medical treatment. (a) For purposes of this subdivision, 11 "major medical treatment" means any treatment, service or procedure to 12 diagnose or treat an individual's physical or mental condition: (i) 13 where general anesthetic is used; or (ii) which involves any significant 14 risk; or (iii) which involves any significant invasion of bodily integ- 15 rity requiring an incision, producing substantial pain, discomfort, 16 debilitation or having a significant recovery period; or (iv) which 17 involves the use of physical restraints, as specified in regulations 18 promulgated by the commissioner, except in an emergency; or (v) which 19 involves the use of psychoactive medications, except when provided as 20 part of post-operative care or in response to an acute illness and 21 treatment is reasonably expected to be administered over a period of 22 forty-eight hours or less, or when provided in an emergency. 23 (b) A decision to provide major medical treatment, made in accordance 24 with the following requirements, shall be authorized for an adult 25 patient who has been determined to lack decision-making capacity pursu- 26 ant to section twenty-nine hundred ninety-four-c of this article. 27 (i) An attending physician or attending nurse practitioner shall make 28 a recommendation in consultation with hospital staff directly responsi- 29 ble for the patient's care. 30 (ii) In a general hospital, at least one other physician or nurse 31 practitioner designated by the hospital must independently determine 32 that he or she concurs that the recommendation is appropriate. 33 (iii) In a residential health care facility, and for a hospice patient 34 not in a general hospital, the medical director of the facility or 35 hospice, or a physician or nurse practitioner designated by the medical 36 director, must independently determine that he or she concurs that the 37 recommendation is appropriate; provided that if the medical director is 38 the patient's attending physician or attending nurse practitioner, a 39 different physician or nurse practitioner designated by the residential 40 health care facility or hospice must make this independent determi- 41 nation. Any health or social services practitioner employed by or other- 42 wise formally affiliated with the facility or hospice may provide a 43 second opinion for decisions about physical restraints made pursuant to 44 this subdivision. 45 5. Decisions to withhold or withdraw life-sustaining treatment. (a) A 46 court of competent jurisdiction may make a decision to withhold or with- 47 draw life-sustaining treatment for an adult patient who has been deter- 48 mined to lack decision-making capacity pursuant to section twenty-nine 49 hundred ninety-four-c of this article if the court finds that the deci- 50 sion accords with standards for decisions for adults set forth in subdi- 51 visions four and five of section twenty-nine hundred ninety-four-d of 52 this article. 53 (b) If the attending physician or attending nurse practitioner, with 54 independent concurrence of a second physician or nurse practitioner 55 designated by the hospital, determines to a reasonable degree of medical 56 certainty that:

A. 7277 17 1 (i) life-sustaining treatment offers the patient no medical benefit 2 because the patient will die imminently, even if the treatment is 3 provided; and 4 (ii) the provision of life-sustaining treatment would violate accepted 5 medical standards, then such treatment may be withdrawn or withheld from 6 an adult patient who has been determined to lack decision-making capaci- 7 ty pursuant to section twenty-nine hundred ninety-four-c of this arti- 8 cle, without judicial approval. This paragraph shall not apply to any 9 treatment necessary to alleviate pain or discomfort. 10 5-a. Decisions regarding hospice care. An attending physician or 11 attending nurse practitioner shall be authorized to make decisions 12 regarding hospice care and execute appropriate documents for such deci- 13 sions (including a hospice election form) for an adult patient under 14 this section who is hospice eligible in accordance with the following 15 requirements. 16 (a) The attending physician or attending nurse practitioner shall make 17 decisions under this section in consultation with staff directly respon- 18 sible for the patient's care, and shall base his or her decisions on the 19 standards for surrogate decisions set forth in subdivisions four and 20 five of section twenty-nine hundred ninety-four-d of this article; 21 (b) There is a concurring opinion as follows: 22 (i) in a general hospital, at least one other physician or nurse prac- 23 titioner designated by the hospital must independently determine that he 24 or she concurs that the recommendation is consistent with such standards 25 for surrogate decisions; 26 (ii) in a residential health care facility, the medical director of 27 the facility, or a physician or nurse practitioner designated by the 28 medical director, must independently determine that he or she concurs 29 that the recommendation is consistent with such standards for surrogate 30 decisions; provided that if the medical director is the patient's 31 attending physician or attending nurse practitioner, a different physi- 32 cian or nurse practitioner designated by the residential health care 33 facility must make this independent determination; or 34 (iii) in settings other than a general hospital or residential health 35 care facility, the medical director of the hospice, or a physician 36 designated by the medical director, must independently determine that he 37 or she concurs that the recommendation is medically appropriate and 38 consistent with such standards for surrogate decisions; provided that if 39 the medical director is the patient's attending physician or attending 40 nurse practitioner, a different physician or nurse practitioner desig- 41 nated by the hospice must make this independent determination; and 42 (c) The ethics review committee of the general hospital, residential 43 health care facility or hospice, as applicable, including at least one 44 physician or nurse practitioner who is not the patient's attending 45 physician or attending nurse practitioner, or a court of competent 46 jurisdiction, must review the decision and determine that it is consist- 47 ent with such standards for surrogate decisions. 48 6. Physician or nurse practitioner objection. If a physician or nurse 49 practitioner consulted for a concurring opinion objects to an attending 50 physician's or attending nurse practitioner's recommendation or determi- 51 nation made pursuant to this section, or a member of the hospital staff 52 directly responsible for the patient's care objects to an attending 53 physician's or attending nurse practitioner's recommendation about major 54 medical treatment or treatment without medical benefit, the matter shall 55 be referred to the ethics review committee if it cannot be otherwise 56 resolved.

A. 7277 18 1 § 23. Section 2994-j of the public health law, as added by chapter 8 2 of the laws of 2010, is amended read as follows: 3 § 2994-j. Revocation of consent. 1. A patient, surrogate, or parent or 4 guardian of a minor patient may at any time revoke his or her consent to 5 withhold or withdraw life-sustaining treatment by informing an attending 6 physician, attending nurse practitioner or a member of the medical or 7 nursing staff of the revocation. 8 2. An attending physician or attending nurse practitioner informed of 9 a revocation of consent made pursuant to this section shall immediately: 10 (a) record the revocation in the patient's medical record; 11 (b) cancel any orders implementing the decision to withhold or with- 12 draw treatment; and 13 (c) notify the hospital staff directly responsible for the patient's 14 care of the revocation and any cancellations. 15 3. Any member of the medical or nursing staff, other than a nurse 16 practitioner, informed of a revocation made pursuant to this section 17 shall immediately notify an attending physician or attending nurse prac- 18 titioner of the revocation. 19 § 24. The opening paragraph of subdivision 2 of section 2994-k of the 20 public health law, as added by chapter 8 of the laws of 2010, is amended 21 to read as follows: 22 If a decision to withhold or withdraw life-sustaining treatment has 23 been made pursuant to this article, and an attending physician or 24 attending nurse practitioner determines at any time that the decision is 25 no longer appropriate or authorized because the patient has regained 26 decision-making capacity or because the patient's condition has other- 27 wise improved, the physician or nurse practitioner shall immediately: 28 § 25. Section 2994-l of the public health law, as added by chapter 8 29 of the laws of 2010, is amended to read as follows: 30 § 2994-l. Interinstitutional transfers. If a patient with an order to 31 withhold or withdraw life-sustaining treatment is transferred from a 32 mental hygiene facility to a hospital or from a hospital to a different 33 hospital, any such order or plan shall remain effective until an attend- 34 ing physician or attending nurse practitioner first examines the trans- 35 ferred patient, whereupon an attending physician or attending nurse 36 practitioner must either: 37 1. Issue appropriate orders to continue the prior order or plan. Such 38 orders may be issued without obtaining another consent to withhold or 39 withdraw life-sustaining treatment pursuant to this article; or 40 2. Cancel such order, if the attending physician or attending nurse 41 practitioner determines that the order is no longer appropriate or 42 authorized. Before canceling the order the attending physician or 43 attending nurse practitioner shall make reasonable efforts to notify the 44 person who made the decision to withhold or withdraw treatment and the 45 hospital staff directly responsible for the patient's care of any such 46 cancellation. If such notice cannot reasonably be made prior to cancel- 47 ing the order or plan, the attending physician or attending nurse prac- 48 titioner shall make such notice as soon as reasonably practicable after 49 cancellation. 50 § 26. Subdivisions 3 and 4 of section 2994-m of the public health law, 51 as added by chapter 8 of the laws of 2010 and paragraph (c) of subdivi- 52 sion 4 as added by chapter 167 of the laws of 2011, are amended to read 53 as follows: 54 3. Committee membership. The membership of ethics review committees 55 must be interdisciplinary and must include at least five members who 56 have demonstrated an interest in or commitment to patient's rights or to

A. 7277 19 1 the medical, public health, or social needs of those who are ill. At 2 least three ethics review committee members must be health or social 3 services practitioners, at least one of whom must be a registered nurse 4 and one of whom must be a physician or nurse practitioner. At least one 5 member must be a person without any governance, employment or contractu- 6 al relationship with the hospital. In a residential health care facility 7 the facility must offer the residents' council of the facility (or of 8 another facility that participates in the committee) the opportunity to 9 appoint up to two persons to the ethics review committee, none of whom 10 may be a resident of or a family member of a resident of such facility, 11 and both of whom shall be persons who have expertise in or a demon- 12 strated commitment to patient rights or to the care and treatment of the 13 elderly or nursing home residents through professional or community 14 activities, other than activities performed as a health care provider. 15 4. Procedures for ethics review committee. (a) These procedures are 16 required only when: (i) the ethics review committee is convened to 17 review a decision by a surrogate to withhold or withdraw life-sustaining 18 treatment for: (A) a patient in a residential health care facility 19 pursuant to paragraph (b) of subdivision five of section twenty-nine 20 hundred ninety-four-d of this article; (B) a patient in a general hospi- 21 tal pursuant to paragraph (c) of subdivision five of section twenty-nine 22 hundred ninety-four-d of this article; or (C) an emancipated minor 23 patient pursuant to subdivision three of section twenty-nine hundred 24 ninety-four-e of this article; or (ii) when a person connected with the 25 case requests the ethics review committee to provide assistance in 26 resolving a dispute about proposed care. Nothing in this section shall 27 bar health care providers from first striving to resolve disputes 28 through less formal means, including the informal solicitation of 29 ethical advice from any source. 30 (b)(i) A person connected with the case may not participate as an 31 ethics review committee member in the consideration of that case. 32 (ii) The ethics review committee shall respond promptly, as required 33 by the circumstances, to any request for assistance in resolving a 34 dispute or consideration of a decision to withhold or withdraw life-sus- 35 taining treatment pursuant to paragraphs (b) and (c) of subdivision five 36 of section twenty-nine hundred ninety-four-d of this article made by a 37 person connected with the case. The committee shall permit persons 38 connected with the case to present their views to the committee, and to 39 have the option of being accompanied by an advisor when participating in 40 a committee meeting. 41 (iii) The ethics review committee shall promptly provide the patient, 42 where there is any indication of the patient's ability to comprehend the 43 information, the surrogate, other persons on the surrogate list directly 44 involved in the decision or dispute regarding the patient's care, any 45 parent or guardian of a minor patient directly involved in the decision 46 or dispute regarding the minor patient's care, an attending physician, 47 an attending nurse practitioner, the hospital, and other persons the 48 committee deems appropriate, with the following: 49 (A) notice of any pending case consideration concerning the patient, 50 including, for patients, persons on the surrogate list, parents and 51 guardians, information about the ethics review committee's procedures, 52 composition and function; and 53 (B) the committee's response to the case, including a written state- 54 ment of the reasons for approving or disapproving the withholding or 55 withdrawal of life-sustaining treatment for decisions considered pursu- 56 ant to subparagraph (ii) of paragraph (a) of subdivision five of section

A. 7277 20 1 twenty-nine hundred ninety-four-d of this article. The committee's 2 response to the case shall be included in the patient's medical record. 3 (iv) Following ethics review committee consideration of a case 4 concerning the withdrawal or withholding of life-sustaining treatment, 5 treatment shall not be withdrawn or withheld until the persons identi- 6 fied in subparagraph (iii) of this paragraph have been informed of the 7 committee's response to the case. 8 (c) When an ethics review committee is convened to review decisions 9 regarding hospice care for a patient in a general hospital or residen- 10 tial health care facility, the responsibilities of this section shall be 11 carried out by the ethics review committee of the general hospital or 12 residential health care facility, provided that such committee shall 13 invite a representative from hospice to participate. 14 § 27. Paragraph (b) of subdivision 4 of section 2994-r of the public 15 health law, as added by chapter 8 of the laws of 2010, is amended to 16 read as follows: 17 (b) The following persons may commence a special proceeding in a court 18 of competent jurisdiction to seek appointment as the health care guardi- 19 an of a minor patient solely for the purpose of deciding about life-sus- 20 taining treatment pursuant to this article: 21 (i) the hospital administrator; 22 (ii) an attending physician or attending nurse practitioner; 23 (iii) the local commissioner of social services or the local commis- 24 sioner of health, authorized to make medical treatment decisions for the 25 minor pursuant to section three hundred eighty-three-b of the social 26 services law; or 27 (iv) an individual, eighteen years of age or older, who has assumed 28 care of the minor for a substantial and continuous period of time. 29 § 28. Subdivision 1 of section 2994-s of the public health law, as 30 added by chapter 8 of the laws of 2010, is amended to read as follows: 31 1. Any hospital [or], attending physician or nurse practitioner that 32 refuses to honor a health care decision by a surrogate made pursuant to 33 this article and in accord with the standards set forth in this article 34 shall not be entitled to compensation for treatment, services, or proce- 35 dures refused by the surrogate, except that this subdivision shall not 36 apply: 37 (a) when a hospital [or], physician or nurse practitioner exercises 38 the rights granted by section twenty-nine hundred ninety-four-n of this 39 article, provided that the physician, nurse practitioner or hospital 40 promptly fulfills the obligations set forth in section twenty-nine 41 hundred ninety-four-n of this article; 42 (b) while a matter is under consideration by the ethics review commit- 43 tee, provided that the matter is promptly referred to and considered by 44 the committee; 45 (c) in the event of a dispute between individuals on the surrogate 46 list; or 47 (d) if the physician, nurse practitioner or hospital prevails in any 48 litigation concerning the surrogate's decision to refuse the treatment, 49 services or procedure. Nothing in this section shall determine or 50 affect how disputes among individuals on the surrogate list are 51 resolved. 52 § 29. Subdivision 2 of section 2994-aa of the public health law, as 53 added by chapter 8 of the laws of 2010, is amended and two new subdivi- 54 sions 2-a and 13-a are added to read as follows: 55 2. "Attending physician" means the physician who has primary responsi- 56 bility for the treatment and care of the patient. Where more than one

A. 7277 21 1 physician or nurse practitioner shares such responsibility, any such 2 physician or nurse practitioner may act as the attending physician or 3 attending nurse practitioner pursuant to this article. 4 2-a. "Attending nurse practitioner" means the nurse practitioner 5 selected by or assigned to a patient in a hospital who has primary 6 responsibility for the treatment and care of the patient. Where more 7 than one physician and/or nurse practitioner shares such responsibility, 8 any such physician or nurse practitioner may act as the attending physi- 9 cian or attending nurse practitioner pursuant to this article. 10 13-a. "Nurse practitioner" means a nurse practitioner certified pursu- 11 ant to section sixty-nine hundred ten of the education law who is prac- 12 ticing in accordance with subdivision three of section sixty-nine 13 hundred two of the education law. 14 § 30. Section 2994-cc of the public health law, as added by chapter 8 15 of the laws of 2010, subdivision 4 as amended by section 131 of subpart 16 B of part C of chapter 62 of the laws of 2011, is amended to read as 17 follows: 18 § 2994-cc. Consent to a nonhospital order not to resuscitate. 1. An 19 adult with decision-making capacity, a health care agent, or a surrogate 20 may consent to a nonhospital order not to resuscitate orally to the 21 attending physician or attending nurse practitioner or in writing. If a 22 patient consents to a nonhospital order not to resuscitate while in a 23 correctional facility, notice of the patient's consent shall be given to 24 the facility director and reasonable efforts shall be made to notify an 25 individual designated by the patient to receive such notice prior to the 26 issuance of the nonhospital order not to resuscitate. Notification to 27 the facility director or the individual designated by the patient shall 28 not delay issuance of a nonhospital order not to resuscitate. 29 2. Consent by a health care agent shall be governed by article twen- 30 ty-nine-C of this chapter. 31 3. Consent by a surrogate shall be governed by article twenty-nine-CC 32 of this chapter, except that: (a) a second determination of capacity 33 shall be made by a health or social services practitioner; and (b) the 34 authority of the ethics review committee set forth in article 35 twenty-nine-CC of this chapter shall apply only to nonhospital orders 36 issued in a hospital. 37 4. (a) When the concurrence of a second physician or nurse practition- 38 er is sought to fulfill the requirements for the issuance of a nonhospi- 39 tal order not to resuscitate for patients in a correctional facility, 40 such second physician or nurse practitioner shall be selected by the 41 chief medical officer of the department of corrections and community 42 supervision or his or her designee. 43 (b) When the concurrence of a second physician or nurse practitioner 44 is sought to fulfill the requirements for the issuance of a nonhospital 45 order not to resuscitate for hospice and home care patients, such second 46 physician or nurse practitioner shall be selected by the hospice medical 47 director or hospice nurse coordinator designated by the medical director 48 or by the home care services agency director of patient care services, 49 as appropriate to the patient. 50 5. Consent by a patient or a surrogate for a patient in a mental 51 hygiene facility shall be governed by article twenty-nine-B of this 52 chapter. 53 § 31. Section 2994-dd of the public health law, as added by chapter 8 54 of the laws of 2010, subdivision 6 as amended by section 10 of part J of 55 chapter 56 of the laws of 2012, is amended to read as follows:

A. 7277 22 1 § 2994-dd. Managing a nonhospital order not to resuscitate. 1. The 2 attending physician or attending nurse practitioner shall record the 3 issuance of a nonhospital order not to resuscitate in the patient's 4 medical record. 5 2. A nonhospital order not to resuscitate shall be issued upon a stan- 6 dard form prescribed by the commissioner. The commissioner shall also 7 develop a standard bracelet that may be worn by a patient with a nonhos- 8 pital order not to resuscitate to identify that status; provided, howev- 9 er, that no person may require a patient to wear such a bracelet and 10 that no person may require a patient to wear such a bracelet as a condi- 11 tion for honoring a nonhospital order not to resuscitate or for provid- 12 ing health care services. 13 3. An attending physician or attending nurse practitioner who has 14 issued a nonhospital order not to resuscitate, and who transfers care of 15 the patient to another physician or nurse practitioner, shall inform the 16 physician or nurse practitioner of the order. 17 4. For each patient for whom a nonhospital order not to resuscitate 18 has been issued, the attending physician or attending nurse practitioner 19 shall review whether the order is still appropriate in light of the 20 patient's condition each time he or she examines the patient, whether in 21 the hospital or elsewhere, but at least every ninety days, provided that 22 the review need not occur more than once every seven days. The attending 23 physician or attending nurse practitioner shall record the review in the 24 patient's medical record provided, however, that a registered nurse, 25 other than the attending nurse practitioner, who provides direct care to 26 the patient may record the review in the medical record at the direction 27 of the physician. In such case, the attending physician or attending 28 nurse practitioner shall include a confirmation of the review in the 29 patient's medical record within fourteen days of such review. Failure 30 to comply with this subdivision shall not render a nonhospital order not 31 to resuscitate ineffective. 32 5. A person who has consented to a nonhospital order not to resusci- 33 tate may at any time revoke his or her consent to the order by any act 34 evidencing a specific intent to revoke such consent. Any health care 35 professional, other than the attending physician or attending nurse 36 practitioner, informed of a revocation of consent to a nonhospital order 37 not to resuscitate shall notify the attending physician or attending 38 nurse practitioner of the revocation. An attending physician or attend- 39 ing nurse practitioner who is informed that a nonhospital order not to 40 resuscitate has been revoked shall record the revocation in the 41 patient's medical record, cancel the order and make diligent efforts to 42 retrieve the form issuing the order, and the standard bracelet, if any. 43 6. The commissioner may authorize the use of one or more alternative 44 forms for issuing a nonhospital order not to resuscitate (in place of 45 the standard form prescribed by the commissioner under subdivision two 46 of this section). Such alternative form or forms may also be used to 47 issue a non-hospital do not intubate order. Any such alternative forms 48 intended for use for persons with developmental disabilities or persons 49 with mental illness who are incapable of making their own health care 50 decisions or who have a guardian of the person appointed pursuant to 51 article eighty-one of the mental hygiene law or article seventeen-A of 52 the surrogate's court procedure act must also be approved by the commis- 53 sioner of developmental disabilities or the commissioner of mental 54 health, as appropriate. An alternative form under this subdivision shall 55 otherwise conform with applicable federal and state law. This subdivi- 56 sion does not limit, restrict or impair the use of an alternative form

A. 7277 23 1 for issuing an order not to resuscitate in a general hospital or resi- 2 dential health care facility under article twenty-eight of this chapter 3 or a hospital under subdivision ten of section 1.03 of the mental 4 hygiene law. 5 § 32. Subdivision 2 of section 2994-ee of the public health law, as 6 added by chapter 8 of the laws of 2010, is amended to read as follows: 7 2. Hospital emergency services physicians and hospital emergency 8 services nurse practitioners may direct that the order be disregarded if 9 other significant and exceptional medical circumstances warrant disre- 10 garding the order. 11 § 33. This act shall take effect on the one hundred eightieth day 12 after it shall have become a law; provided that, effective immediately, 13 any rules and regulations necessary to implement the provisions of this 14 act on its effective date are authorized and directed to be amended, 15 repealed and/or promulgated on or before such date.