Bill Text: NY S01964 | 2025-2026 | General Assembly | Introduced
Bill Title: Conforms and improves the process for determining incapacity.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2025-01-14 - REFERRED TO HEALTH [S01964 Detail]
Download: New_York-2025-S01964-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1964 2025-2026 Regular Sessions IN SENATE January 14, 2025 ___________ 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 proce- dure act, in relation to conforming and improving the process for determining incapacity The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 2, 3, 4, 5, 6 and 7 of section 2983 of the 2 public health law are renumbered subdivisions 3, 4, 5, 6, 7 and 8. 3 § 2. Subdivision 1 of section 2983 of the public health law, as 4 amended by chapter 708 of the laws of 2019, is amended to read as 5 follows: 6 1. [Determination] Initial determination by attending practitioner. 7 [(a) A] An initial determination that a principal lacks capacity to make 8 health care decisions shall be made by the attending practitioner to a 9 reasonable degree of medical certainty. The determination shall be made 10 in writing and shall contain such attending practitioner's opinion 11 regarding the cause and nature of the principal's incapacity as well as 12 its extent and probable duration. The determination shall be included in 13 the patient's medical record. [For a decision to withdraw or withhold14life-sustaining treatment, the attending practitioner who makes the15determination that a principal lacks capacity to make health care deci-16sions must consult with another physician, physician assistant, or nurse17practitioner to confirm such determination. Such consultation shall also18be included within the patient's medical record.] A practitioner who has 19 been appointed as a patient's agent shall not make the determination of 20 the patient's capacity to make health care decisions. 21 2. Concurring determinations for life-sustaining treatment decisions. 22 For a decision to withdraw or withhold life-sustaining treatment, the 23 following shall apply: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03431-01-5S. 1964 2 1 (a) The initial determination that a patient lacks capacity shall be 2 subject to a concurring determination, independently made by a health or 3 social services practitioner. A concurring determination shall include 4 an assessment of the cause and extent of the patient's incapacity and 5 the likelihood that the patient will regain decision-making capacity, 6 and shall be included in the patient's medical record. Hospitals shall 7 adopt written policies identifying the training and credentials of 8 health or social services practitioners qualified to provide concurring 9 determinations of incapacity conducted for hospital patients. 10 (b) If an attending practitioner of a patient in a general hospital or 11 mental hygiene facility determines that a patient lacks capacity because 12 of mental illness, [the attending practitioner who makes the determi-13nation must be, or must consult, for the purpose of confirming the14determination, with a qualified psychiatrist] either such practitioner 15 or the concurring practitioner must have the following qualifications: a 16 practitioner licensed to practice medicine in New York state, who is a 17 diplomate or eligible to be certified by the American Board of Psychia- 18 try and Neurology or who is certified by the American Osteopathic Board 19 of Neurology and Psychiatry or is eligible to be certified by that 20 board. A record of such consultation shall be included in the patient's 21 medical record. 22 (c) If the attending practitioner determines that a patient lacks 23 capacity because of a developmental disability, [the attending practi-24tioner who makes the determination must be, or must consult, for the25purpose of confirming the determination, with] either such practitioner 26 or the concurring practitioner must have the following qualifications: 27 either (i) for a patient in a hospital, a health or social services 28 practitioner qualified by training or experience to make such determi- 29 nation in accordance with written policies adopted by the hospital; or 30 (ii) for a patient in any setting, a physician, nurse practitioner, 31 physician assistant, or clinical psychologist who either is employed by 32 a developmental disabilities services office named in section 13.17 of 33 the mental hygiene law, or who has been employed for a minimum of two 34 years to render care and service in a facility operated or licensed by 35 the office for people with developmental disabilities, or has been 36 approved by the commissioner of developmental disabilities in accordance 37 with regulations promulgated by such commissioner. Such regulations 38 shall require that a physician, nurse practitioner, physician assistant, 39 or clinical psychologist possess specialized training or three years 40 experience in treating developmental disabilities. A record of such 41 consultation shall be included in the patient's medical record. 42 [(d) A physician, physician assistant, or nurse practitioner who has43been appointed as a patient's agent shall not make the determination of44the patient's capacity to make health care decisions.] 45 § 3. Subdivision 3 of section 2994-c of the public health law, as 46 amended by chapter 708 of the laws of 2019, is amended to read as 47 follows: 48 3. Concurring determinations for life-sustaining treatment decisions. 49 For a decision to withdraw or withhold life-sustaining treatment, the 50 following shall apply: (a) An initial determination that a patient lacks 51 decision-making capacity shall be subject to a concurring determination, 52 independently made, [where required by this subdivision] by a health or 53 social services practitioner employed or otherwise formally affiliated 54 with the hospital. A concurring determination shall include an assess- 55 ment of the cause and extent of the patient's incapacity and the likeli- 56 hood that the patient will regain decision-making capacity, and shall beS. 1964 3 1 included in the patient's medical record. Hospitals shall adopt written 2 policies identifying the training and credentials of health or social 3 services practitioners qualified to provide concurring determinations of 4 incapacity. 5 (b) [(i) In a residential health care facility, a health or social6services practitioner employed by or otherwise formally affiliated with7the facility must independently determine whether an adult patient lacks8decision-making capacity.9(ii) In a general hospital a health or social services practitioner10employed by or otherwise formally affiliated with the facility must11independently determine whether an adult patient lacks decision-making12capacity if the surrogate's decision concerns the withdrawal or with-13holding of life-sustaining treatment.14(iii)] With respect to decisions regarding hospice care for a patient 15 in a general hospital or residential health care facility, the health or 16 social services practitioner must be employed by or otherwise formally 17 affiliated with the general hospital or residential health care facili- 18 ty. 19 (c) (i) If the attending practitioner makes an initial determination 20 that a patient lacks decision-making capacity because of mental illness, 21 either such physician or the concurring practitioner must have the 22 following qualifications[, or another physician with the following qual-23ifications must independently determine whether the patient lacks deci-24sion-making capacity]: a physician licensed to practice medicine in New 25 York state, who is a diplomate or eligible to be certified by the Ameri- 26 can Board of Psychiatry and Neurology or who is certified by the Ameri- 27 can Osteopathic Board of Neurology and Psychiatry or is eligible to be 28 certified by that board. A record of such consultation shall be included 29 in the patient's medical record. 30 (ii) If the attending practitioner makes an initial determination that 31 a patient lacks decision-making capacity because of a developmental 32 disability, either such physician, nurse practitioner [or], physician 33 assistant, or the concurring practitioner must have the following quali- 34 fications[, or another professional with the following qualifications35must independently determine whether the patient lacks decision-making36capacity]: either (A) a health or social services practitioner quali- 37 fied by training experience to make such determination in accordance 38 with the written policies adopted by the hospital, or (B) a physician or 39 clinical psychologist who either is employed by a developmental disabil- 40 ities services office named in section 13.17 of the mental hygiene law, 41 or who has been employed for a minimum of two years to render care and 42 service in a facility operated or licensed by the office for people with 43 developmental disabilities, or has been approved by the commissioner of 44 developmental disabilities in accordance with regulations promulgated by 45 such commissioner. Such regulations shall require that a physician or 46 clinical psychologist possess specialized training or three years expe- 47 rience in treating developmental disabilities. A record of such consul- 48 tation shall be included in the patient's medical record. 49 (d) If an attending practitioner has determined that the patient lacks 50 decision-making capacity and if the health or social services practi- 51 tioner consulted for a concurring determination disagrees with the 52 attending practitioner's determination, the matter shall be referred to 53 the ethics review committee if it cannot otherwise be resolved. 54 § 4. Subdivisions 3 and 4 of section 2994-cc of the public health law, 55 as amended by chapter 708 of the laws of 2019, are amended to read as 56 follows:S. 1964 4 1 3. Consent by a surrogate shall be governed by article twenty-nine-CC 2 of this chapter, except that[: (a) a second determination of capacity3shall be made by a health or social services practitioner; and (b)] the 4 authority of the ethics review committee set forth in article 5 twenty-nine-CC of this chapter shall apply only to nonhospital orders 6 issued in a hospital or hospice. 7 4. (a) When the concurrence of a second [physician, nurse practitioner8or physician assistant] health or social services practitioner is sought 9 to fulfill the requirements for the issuance of a nonhospital order not 10 to resuscitate for patients in a correctional facility, such second 11 [physician, nurse practitioner or physician assistant] health or social 12 services practitioner shall be selected by the chief medical officer of 13 the department of corrections and community supervision or [his or her] 14 the designee of such chief medical officer. 15 (b) When the concurrence of a second [physician, nurse practitioner or16physician assistant] health or social services practitioner is sought to 17 fulfill the requirements for the issuance of a nonhospital order not to 18 resuscitate for [hospice and] home care patients, such second [physi-19cian, nurse practitioner or physician assistant] health or social 20 services practitioner shall be selected [by the hospice medical director21or hospice nurse coordinator designated by the medical director or] by 22 the home care services agency director of patient care services[, as23appropriate to the patient]. 24 § 5. Paragraph (a) of subdivision 4 of section 1750-b of the surro- 25 gate's court procedure act, as amended by chapter 198 of the laws of 26 2016, is amended to read as follows: 27 (a) The attending [physician] practitioner, as defined in subdivision 28 two of section twenty-nine hundred eighty of the public health law, 29 [must confirm] shall initially determine to a reasonable degree of 30 medical certainty that the person who is intellectually disabled lacks 31 capacity to make health care decisions. The determination thereof shall 32 be included in the person who is intellectually disabled's medical 33 record, and shall contain such attending [physician's] practitioner's 34 opinion regarding the cause and nature of the person who is intellectu- 35 ally disabled's incapacity as well as its extent and probable duration. 36 The attending [physician] practitioner who makes [the confirmation] such 37 initial determination shall consult with another practitioner, physi- 38 cian, or a licensed psychologist, to further confirm the person who is 39 intellectually disabled's lack of capacity. [The] If the attending 40 practitioner makes an initial determination that a patient lacks capaci- 41 ty to make health care decisions because of intellectual disability, 42 then the attending [physician who makes the confirmation,] practitioner 43 or the physician or licensed psychologist with whom the attending 44 [physician] practitioner consults[,]either (i) for a patient in a gener- 45 al hospital, residential health care facility or hospice, must [(i)] be 46 qualified by training or experience to make such determination, in 47 accordance with policies adopted by the general hospital, residential 48 health care facility or hospice; or (ii) for a patient in any setting, 49 must (A) be employed by a developmental disabilities services office 50 named in section 13.17 of the mental hygiene law or employed by the 51 office for people with developmental disabilities to provide treatment 52 and care to people with developmental disabilities, or [(ii)] (B) have 53 been employed for a minimum of two years to render care and service in a 54 facility or program operated, licensed or authorized by the office for 55 people with developmental disabilities, or [(iii)] (C) have been 56 approved by the commissioner of the office for people with developmentalS. 1964 5 1 disabilities in accordance with regulations promulgated by such commis- 2 sioner. Such regulations shall require that a physician or licensed 3 psychologist possess specialized training or three years experience in 4 treating intellectual disability. A record of such consultation shall be 5 included in the person who is intellectually disabled's medical record. 6 § 6. Subdivision 4 of section 2982 of the public health law, as 7 amended by chapter 370 of the laws of 1991, is amended to read as 8 follows: 9 4. Priority over other surrogates. Health care decisions by an agent 10 on a principal's behalf pursuant to this article shall have priority 11 over decisions by any other person, except as otherwise provided in the 12 health care proxy or in subdivision [five] six of section two thousand 13 nine hundred eighty-three of this article. 14 § 7. Subdivision 2 of section 2984 of the public health law, as added 15 by chapter 752 of the laws of 1990, is amended to read as follows: 16 2. A health care provider shall comply with health care decisions made 17 by an agent in good faith under a health care proxy to the same extent 18 as if such decisions had been made by the principal, subject to any 19 limitations in the health care proxy and pursuant to the provisions of 20 subdivision [five] six of section two thousand nine hundred eighty-three 21 of this article. 22 § 8. Paragraph (b) of subdivision 7 of section 2983 of the public 23 health law, as amended by chapter 708 of the laws of 2019 and such 24 subdivision as renumbered by section one of this act, is amended to read 25 as follows: 26 (b) The notice requirements set forth in subdivision [three] four of 27 this section shall not apply to the confirmation required by this subdi- 28 vision. 29 § 9. This act shall take effect on the ninetieth day after it shall 30 have become a law, provided that the amendments to article 29-C of the 31 public health law made by section two of this act shall apply to the 32 decisions made pursuant to health care proxies created prior to the 33 effective date of this act as well as those created thereafter.
