BILL NUMBER: S1964
SPONSOR: RIVERA
 
TITLE OF BILL:
An act to amend the public health law and the surrogate's court proce-
dure act, in relation to conforming and improving the process for deter-
mining incapacity
 
PURPOSE:
To conform and improve the process for determining incapacity.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends subdivisions 2, 3, 4, 5, 6, and 7 of section 2983 of
the Public Health Law (PHL) to be renumbered as subdivisions 3, 4, 5, 6,
7, and 8
Section 2 amends subdivision 1 of section 2983 of the PHL as it relates
to determinations of lacking capacity to make health care decisions. An
initial determination would be made by an attending practitioner to
determine that a principal lacks capacity to make health care decisions.
A practitioner who has been appointed as a patient's agent would not
make the determination of the patient's capacity to make health care
decisions. The initial determination would be subjected to a concurring
determination that is independently made by a health or social services
practitioner.
Section 3 amends subdivision 3 of section 2994-c of the PHL as it
relates to concurring determinations for life-sustaining treatment deci-
sions. The decision to withdraw or withhold life-sustaining treatment if
an initial determination that a patient lacks decision making capacity
would be subject to a concurring determination that is independently
made by a health or social services practitioner employed or otherwise
formally affiliated with the hospital.
Section 4 amends subdivisions 3 and 4 of section 2994-cc of the PHL as
it relates to consent to a nonhospital order not to resuscitate. This
section allows for a nonhospital order not to resuscitate to be issued
in a hospital or hospice.
Section 5 amends paragraph (a) of subdivision 4 of section 1750-b of the
Surrogate's Court Procedure Act, as it relates to initial determi-
nations. If the attending practitioner makes an initial determination
that a patient lacks capacity to make health care decisions because of
intellectual disability then the attending practitioner consults a
patient in a general hospital, residential health care facility, or
hospice.
Sections 6, 7, and 8 make technical conforming changes to sections 2982,
2984, and 2983 of the PHL.
Section 9 provides the effective date.
 
JUSTIFICATION:
By enacting Chapter 8 of the Laws of 2010 known as the Family Health
Care Decisions Act (FHCDA), 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 treatment 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:
2013-2014: S7153 (Hannon)/A9671 Pretlow
2015-2016: S4793 (Hannon)/A2036 Pretlow
2019-2020: S5938 Rivera/A4525 Pretlow
2021-2022: S4966 Rivera/A2178 Pretlow
2023-2024: S2932 Rivera/A3616 Pretlow
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect on the 90th day after it shall have become a
law.

Statutes affected:
S1964: 2983 public health law, 2983(1) public health law, 2994-c public health law, 2994-c(3) public health law, 2982 public health law, 2982(4) public health law, 2984 public health law, 2984(2) public health law