Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Statement of purpose.
The New York State Health Care Proxy Law allows an adult
to designate another adult, such as a trusted friend or loved one who knows the
person and his/her wishes, to make treatment decisions if the adult becomes
incapacitated and is unable to do so. The Health Care Proxy Law guarantees an
adult's right to self-determination and the expression of this right through
another adult. Advance directives also allow an adult to express his or her
preference regarding health care treatment, including a desire to continue or
to refuse treatment and life supports. In the absence of a health care proxy,
the Family Health Care Decisions Act allows a surrogate (a family member or
close friend) to make treatment decisions on behalf of a patient, in accordance
with the patient's wishes, if known, or if the patient's wishes are not known,
in accordance with the patient's best interests. Facilities must ensure that
all adult patients/residents are informed of their rights and are supported and
protected as they exercise their right to formulate written or oral
instructions regarding their health care in the event such adults become
incapacitated and are unable to direct their own health care.
(b)
Definitions.
The following words or phrases shall have the following
meanings:
(1) An advance
directive means a type of written or oral instruction relating to the
provision of health care when an adult becomes incapacitated, including but not
limited to a health care proxy, a consent to the issuance of an order not to
resuscitate or other medical orders for life-sustaining treatment (MOLST)
recorded in a patient's/resident's medical record, and a living will.
(2) A health care proxy
means a document created pursuant to article 29-C of the Public Health Law
which delegates the authority to another adult known as a health care agent to
make health care decisions on behalf of the adult when that adult is
incapacitated.
(3) A living
will means a document which contains specific instructions concerning
an adult's wishes about the type of health care choices and treatments that an
adult does or does not want to receive.
(4) A health care agent or
agent means an adult to whom authority to make health care
decisions is delegated under a health care proxy.
(5) An adult means any
person who is 18 years of age or older, or is the parent of a child, or has
married.
(6)
Medical orders
for life-sustaining treatment (MOLST) means medical orders to provide,
withhold or withdraw life-sustaining treatment. The MOLST form is an
alternative form authorized by the commissioner under subdivision 6 of section
2994-dd
of the Public Health Law. The MOLST form and guidance and checklists for using
the MOLST form for any patient in any setting are posted on the department's
website.
(c)
Facility compliance.
The facility shall ensure compliance with the
requirements of law governing advance directives, including but not limited to
articles 29-C, 29-CC and 29-CCC of the Public Health Law.
(d)
Policies and procedures.
The facility shall be responsible for developing,
implementing and maintaining written policies and procedures addressing advance
directives and shall:
(1) make the
following material available to each adult patient/resident, or if the adult
patient/resident lacks capacity, to the family member or other adult who speaks
on the patient's/resident's behalf at or prior to the time of admission to the
facility as an inpatient or an outpatient and to each member of the facility's
staff who provides patient/resident care. A facility need not provide these
items more than once to an outpatient receiving services on a recurring basis:
(i) the description of State law prepared by
the department entitled "Deciding About Health Care: A Guide for Patients and
Families," which summarizes the rights, duties and requirements of Articles
29-C, 29-CC and 29-CCC; and
(ii)
the pamphlet prepared by the department entitled "Health Care Proxy: Appointing
your Health Care Agent in New York State," containing a sample health care
proxy form;
(2) ensure
that there is documentation in each adult's medical record indicating whether
or not the adult has executed a health care proxy under article 29-C of the
Public Health Law, or whether the adult has provided written or oral advance
instructions about treatment to facility staff responsible for the patient's
care or to facility employees upon admission;
(3) assess advance directives other than
those described in articles 29-C, 29-CC and 29-CCC of the Public Health Law.
Nothing herein shall be construed to require that a facility must or may not
seek a court determination that any individual advance directive has been
expressed in a clear and convincing manner;
(4) provide in-service education to staff
involved in the provision of care including medical staff concerning the
facility's policies and procedures concerned with advance directives;
(5) provide (individually or with others)
education to the community on issues concerning advance directives;
(6) ensure that an adult is not discriminated
against in the provision of care or otherwise discriminated against based on
whether or not the adult has executed an advance directive; and
(7) in addition a nursing home shall:
(i) educate adult residents about the
authority delegated under a health care proxy, what a proxy may include or
omit, and how a proxy is created, revoked, or changed as requested by the
resident;
(ii) ensure that each
resident who creates a proxy while residing at the facility does so
voluntarily; and
(iii) designate
one or more individuals to educate the residents, respond to questions and
assist residents in creating, revoking or changing a proxy.
(e)
Medical
orders for life-sustaining treatment (MOLST).
To implement a patient's wishes regarding cardiopulmonary
resuscitation (CPR) and other life-sustaining treatment, facilities may, if
appropriate, utilize the department approved MOLST form for patients with
serious health conditions who:
(1)
want to avoid or receive any or all life-sustaining treatment; or
(2) can reasonably be expected to die within
one year.
(f)
Rights to be publicized.
The facility shall post in a public place in the facility
the rights, duties and requirements of this section. Such statement may be
included in any other statement of patient's/resident's rights required to be
posted.
