New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIV - Office for People With Developmental Disabilities
Part 633 - Protection of Individuals Receiving Services in Facilities and Services Operated and/or Certified by OPWDD
Section 633.20 - Health care proxy (see glossary) for a person residing in a facility (see glossary) operated or certified by OPWDD
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 633.20
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Principles of compliance.
(1) Authority to appoint a health care agent
(see glossary) by a person residing in a facility.
(i) A competent adult (see glossary) may
appoint a health care agent in accordance with the terms of this Part, and New
York State Public Health Law, article 29-C.
(ii) For purposes of this section, every
adult (see glossary) shall be presumed competent to appoint a health care agent
unless such adult:
(a) has a committee
appointed pursuant to article 78 of the Mental Hygiene Law; or
(b) has a legal guardian appointed pursuant
to article 17-A of the Surrogate's Court Procedure Act; or
(c) has a prior court determination that he
or she is not capable of appointing a health care agent.
(iii) A person who is presumed competent may
lack the capacity to write a health care proxy if that person cannot understand
that he or she is delegating to another the authority to make health care
decisions.
(2) Execution
of a health care proxy.
(i) A competent adult
may appoint a health care agent by a health care proxy, signed and dated by the
adult in the presence of two adult witnesses who must also sign the proxy.
Another party may sign and date a health care proxy for a competent adult if
the adult is unable to do so, at the adult's direction and in the presence of
two adult witnesses who must sign the proxy. Witnesses must state that a person
(hereinafter referred to as a "principal") (see glossary) appeared to execute a
proxy willingly and free from duress. A party appointed as an agent cannot act
as witness to the execution of a health care proxy.
(ii) At least one witness must be someone who
is not affiliated with the residential facility in which a principal resides,
and at least one witness must be:
(a) a
physician licensed in New York State who is presently employed by a
developmental center or DDSO and has been so employed for at least one year;
or
(b) a clinical psychologist who
is presently employed by a developmental center or DDSO and has been so
employed for at least one year; or
(c) a physician licensed in New York State
who has been employed for at least two years to render professional care and
service at a facility; or
(d) a
clinical psychologist licensed in New York State who has been employed for at
least two years to render professional care and service at a facility;
or
(e) a physician licensed in New
York State who has had specialized training in developmental disabilities and
has had at least two years of experience treating persons with developmental
disabilities; or
(f) a clinical
psychologist in New York State who has had specialized training in
developmental disabilities and has had at least two years of experience
treating persons with developmental disabilities; or
(g) a physician licensed in New York State
who has had at least three years of experience treating persons with
developmental disabilities; or
(h)
a clinical psychologist licensed in New York State who has had at least three
years of experience treating persons with developmental disabilities.
(iii) If anyone, requested to be a
witness, is of the opinion that a health care proxy has not been executed
willingly and free from duress, he or she should not act as a witness, and may
bring this to the attention of MHLS or the chief executive officer (see
glossary) of the facility in which the person resides. A staff member, under
these circumstances, shall bring the situation to the attention of the chief
executive officer who shall notify MHLS, and who may decide to commence a
special proceeding in accordance with paragraph (22) of this
subdivision.
(3)
Restrictions on who may be, and limitations on, a health care agent or an
alternate agent.
(i) A principal who, at the
time of the appointment, is a resident of, or has applied for admission to,
such facility, may not appoint as a health care agent any members of the
governing body (see glossary), any corporate officer, a chief executive
officer, or an employee of the facility, or a physician affiliated with the
facility.
(ii) The restriction in
subparagraph (i) of this paragraph shall not apply to:
(a) a family care provider; or
(b) a member of the governing body, a
corporate officer, a chief executive officer, an employee of the facility or a
physician affiliated with the facility, who is related to the principal by
blood, marriage, or adoption.
(iii) If a physician is appointed agent, he
or she cannot act as the principal's attending physician (see glossary) after
the authority under the health care proxy commences, unless the physician
declines the appointment as agent at or before such time.
(iv) No one who is appointed health care
agent for 10 or more principals may be appointed health care agent for another
principal unless such agent is the spouse, child, parent (see glossary),
brother, sister or grandparent of the principal or unless such agent is the
issue of, or married to the spouse, child, parent, brother, sister, or
grandparent of the principal.
(4) Contents and form of a health care proxy.
(i) A health care proxy must:
(a) identify a principal and agent;
and
(b) indicate that a principal
intends an agent to have authority to make health care decisions (see glossary)
on the principal's behalf.
(ii) A health care proxy may include a
principal's wishes or instructions about health care decisions, and limitations
upon an agent's authority.
(iii) A
principal's wishes and instructions regarding specific health care decisions,
if known at the time of writing a health care proxy, may be included in the
proxy as evidence of the principal's wishes. A principal may write in a proxy
his or her health care wishes regarding, but not limited to the following:
(a) the administration of nutrition and
hydration;
(b) blood
transfusions;
(c) artificial
respiration;
(d) withdrawal of life
support;
(e) withholding of life
support;
(f) DNR orders;
(g) pain medication;
(h) chemotherapy;
(i) antibiotics.
(iv) A health care proxy may provide that it
expires upon a specified date or upon the occurrence of a certain condition. If
no such date or condition is set forth in a proxy, the proxy remains in effect
until revoked. If, prior to the expiration of a proxy, the authority of an
agent has commenced, a proxy cannot expire while the principal lacks
capacity.
(v) A health care proxy
may, but need not, be in the form found at paragraph (24) of this
subdivision.
(vi) A health care
proxy may not be executed on a form or other writing that also includes the
execution of a power of attorney; provided, however, that nothing in this
paragraph shall invalidate a delegation of the authority to make health care
decisions executed prior to the enactment of article 29-C of the Public Health
Law on January 18, 1991.
(5) Alternate agent.
(i) In a health care proxy, a competent adult
may designate an alternate agent.
(ii) The alternate agent shall serve in place
of the agent when:
(a) an attending physician
has determined in writing, and has signed such determination that:
(1) a party appointed as agent is not
reasonably available, willing and competent to serve as agent; and
(2) such party is not expected to become
reasonably available, willing and competent to make a timely decision given a
principal's medical circumstances; or
(b) an agent is disqualified from acting on a
principal's behalf pursuant to paragraph (3) of this subdivision; or
(c) conditions set forth in the proxy are
met.
(iii) If, after an
alternate agent's authority commences, the party appointed as agent becomes
available, willing and competent to serve as agent:
(a) the authority of an alternate agent
ceases and the authority of the agent commences; and
(b) an attending physician is to record the
change in agent and the reasons therefor in the medical portion of a
principal's clinical record.
(iv) The restrictions and limitations in
paragraph (3) of this subdivision also apply to an alternate health care agent.
(6) Rights and duties of
a health care agent.
(i) Scope of authority.
Subject to any express limitations in a health care proxy, an agent has the
authority to make any and all health care decisions on a principal's behalf
that the principal could make. Such authority is subject to the provisions of
paragraph (18) of this subdivision.
(ii) Decisionmaking standard. After
consultation with a licensed physician, registered nurse, licensed clinical
psychologist and/or certified social worker, whomever the agent considers to be
most qualified to aid him or her in making an informed health care decision, an
agent is to make health care decisions:
(a) in
accordance with a principal's wishes, including a principal's religious and
moral beliefs; or
(b) if a
principal's wishes are not reasonably known and cannot with reasonable
diligence be ascertained, in accordance with a principal's best interests,
provided however;
(c) if a
principal's wishes regarding the administration of artificial nutrition and
hydration are not reasonably known and cannot with reasonable diligence be
ascertained, an agent does not have the authority to make decisions regarding
these measures.
(iii)
Right to receive information. Notwithstanding any law to the contrary, an agent
has the right to receive medical information and medical and clinical records
necessary to make informed decisions regarding a principal's health care (see
glossary).
(iv) Priority over other
surrogates. Health care decisions by an agent on a principal's behalf pursuant
to this Part have priority over decisions by any other party, including
decisions by a guardian or a surrogate pursuant to section
633.18
of this Part, Procedures governing do not resuscitate (DNR) orders, except as
otherwise provided in a health care proxy or in paragraph (10) of this
subdivision.
(7) Agent's
authority to make decisions regarding nutrition and hydration.
(i) If a principal's wishes regarding the
administration of artificial nutrition and hydration are not reasonably known
and cannot with reasonable diligence be ascertained, an agent does not have the
authority to make decisions regarding these measures.
(ii) A principal may include, within a health
care proxy, his or her wishes regarding the administration of nutrition and
hydration in order to make his or her wishes clearly known.
(8) An agent's authority commences
upon a determination, made pursuant to subparagraph (10)(i) or (ii) of this
subdivision, that a principal lacks capacity to make health care
decisions.
(9) Determination of
lack of capacity of a principal to make a health care decision, thereby
invoking the authority of a health care agent to make health care decisions,
pursuant to the authority set forth in a health care proxy.
(i) A determination that a principal lacks
capacity to make health care decisions is to be made by an attending physician
to a reasonable degree of medical certainty. A determination is to be made in
writing and is to contain such attending physician's opinion regarding the
cause and nature of a principal's incapacity as well as its extent and probable
duration. A determination is to be included in the medical portion of a
principal's clinical record. For a decision to withdraw or withhold
life-sustaining treatment, an attending physician who makes a determination
that a principal lacks capacity to make health care decisions must consult with
another physician to confirm such determination. The results of such
consultation is also to be included within the medical portion of a principal's
clinical record.
(ii) If an
attending physician determines that a principal lacks capacity because of a
developmental disability, the attending physician who makes the determination
must be, or must consult with a professional who is:
(a) a physician licensed in New York State
who is presently employed by a developmental center or DDSO and has been so
employed for at least one year; or
(b) a clinical psychologist who is presently
employed by a developmental center or DDSO and has been so employed for at
least one year; or
(c) a physician
licensed in New York State who has been employed for at least two years to
render professional care and service at a facility; or
(d) a clinical psychologist licensed in New
York State who has been employed for at least two years to render professional
care and service at a facility; or
(e) a physician licensed in New York State
who has had specialized training in developmental disabilities and has had at
least two years of experience treating persons with developmental disabilities;
or
(f) a clinical psychologist in
New York State who has had specialized training in developmental disabilities
and has had at least two years of experience treating persons with
developmental disabilities; or
(g)
a physician licensed in New York State who has had at least three years of
experience treating persons with developmental disabilities; or
(h) a clinical psychologist licensed in New
York State who has had at least three years of experience treating persons with
developmental disabilities.
(iii) A record of any consultation for the
purpose of confirming lack of capacity due to a developmental disability is to
be included in the medical portion of a principal's clinical record.
(iv) A physician who has been appointed as a
principal's agent cannot make the determination of a principal's capacity to
make health care decisions.
(v) If
requested by an agent, an attending physician is to make a determination
regarding a principal's capacity to make health care decisions for the purposes
of this section.
(vi) Notice of a
determination that a principal lacks capacity to make health care decisions is
to promptly be given:
(a) to the principal,
orally and in writing, where there is any indication of a principal's ability
to comprehend such notice;
(b) to
the principal's agent;
(c) to the
chief executive officer of the principal's residence, who shall ensure that
appropriate staff at the facility are so advised;
(d) to the conservator for, or committee or
guardian of, the principal, if applicable.
(vii) A determination made pursuant to this
paragraph that a principal lacks capacity to make health care decisions is not
to be construed as a finding that a person lacks capacity for any other
purpose.
(10) Priority
of a principal's decision.
(i) Notwithstanding
a determination pursuant to this section that a principal lacks capacity to
make health care decisions, where a principal objects to the determination of
incapacity or to a health care decision made by an agent, a principal's
objection or decision is to prevail unless a principal is determined by a court
of competent jurisdiction to lack capacity to make health care
decisions.
(11)
Confirmation of lack of capacity.
(i) An
attending physician is to confirm a principal's continued incapacity before
complying with an agent's health care decisions, other than those decisions
made at or about the time of an initial determination made pursuant to
subparagraph (9)(i) or (ii) of this subdivision. Confirmation is to be stated
in writing and is to be included in the medical portion of the principal's
clinical record.
(ii) The notice
requirements set forth in subparagraph (9)(vi) of this subdivision do not apply
to a confirmation required by this paragraph.
(12) Effect of recovery of capacity.
(i) In the event that an attending physician
determines that a principal has regained capacity, the authority of an agent is
to cease.
(ii) However, the
authority of an agent will recommence if a principal subsequently loses
capacity as determined pursuant to subparagraph (9)(i) or (ii) of this
subdivision.
(13)
Obligations of a health care provider (see glossary).
(i) A health care provider who is provided
with a health care proxy is to arrange for the proxy or a copy thereof to be
inserted in the medical portion of a principal's clinical record.
(ii) A health care provider is to comply with
health care decisions made by an agent in good faith under a health care proxy
to the same extent as if such decisions had been made by the principal, subject
to any limitations in the health care proxy and pursuant to the provisions of
paragraph (10) of this subdivision.
(iii) Notwithstanding subparagraph (ii) of
this paragraph, nothing in this section shall be construed to require a
non-State operated facility to honor an agent's health care decision if:
(a) the facility would be permitted by law to
refuse to honor a decision if made by a principal; or, a decision is contrary
to a formally adopted policy of the facility that is expressly based on
religious beliefs or sincerely held moral convictions central to the facility's
operating principles; and
(b) the
facility has informed a principal or a health care agent of such policy prior
to or upon admission, if reasonably possible; and
(c) the principal is transferred promptly to
another facility that is reasonably accessible under the circumstances and is
willing to honor an agent's decision. If an agent is unable or unwilling to
arrange such a transfer, a facility may intervene to facilitate such a
transfer. If such a transfer is not effected, a facility shall seek judicial
relief or honor an agent's decision.
(iv) Notwithstanding subparagraph (ii) of
this paragraph, nothing in this section shall be construed to require any
health care provider to honor an agent's health care decision if the decision
is contrary to a health care provider's religious beliefs or sincerely held
moral convictions, provided that:
(a) the
health care provider would not have honored the decision for the same religious
or moral reasons had the decision been made by the principal when competent;
and
(b) the health care provider
promptly informs the health care agent and the principal's residential
facility, if applicable, of the refusal to honor the agent's decision. In such
event, the health care provider or the residential facility shall promptly
transfer responsibility for the principal to another health care provider who
is willing to honor the agent's decision.
(14) Revocation.
(i) Means of revoking a proxy.
(a) A competent adult may revoke a health
care proxy by notifying an agent or a health care provider, orally or in
writing, or by any other act evidencing a specific intent to revoke the
proxy.
(b) For the purposes of this
section, every adult shall be presumed competent to revoke his or her health
care proxy unless determined otherwise pursuant to a court order.
(c) A health care proxy will also be revoked
upon execution by a principal of a subsequent health care proxy.
(d) The creation by a principal of written
wishes or instructions about health care, or limitations upon an agent's
authority, does not revoke a health care proxy unless such wishes, instructions
or limitations expressly provide otherwise. Such wishes, instructions or
limitations constitute evidence of a principal's wishes for purposes of
subparagraph (6)(ii) of this subdivision.
(e) The appointment of a principal's spouse
as health care agent will be revoked upon the divorce or legal separation of
the principal and spouse, unless the principal specifies otherwise.
(ii) Duty to record revocation.
(a) physician who is informed of or provided
with a revocation of a health care proxy is to immediately:
(1) record the revocation in the medical
portion of the principal's clinical record; and
(2) notify the agent and the medical staff
responsible for the principal's care of the revocation.
(b) Any member of the staff of a health care
provider informed of or provided with a revocation of a health care proxy
pursuant to this paragraph is to immediately notify a physician of such
revocation.
(15) Immunity.
(i) Provider immunity. No health care
provider or employee thereof may be subjected to criminal or civil liability,
or be deemed to have engaged in unprofessional conduct, for honoring in good
faith a health care decision by an agent, or for other actions taken in good
faith pursuant to this section.
(ii) Agent immunity. No one acting as agent
pursuant to a health care proxy may be subjected to criminal or civil liability
for making a health care decision in good faith pursuant to this
section.
(16) Liability
for the cost of health care provided pursuant to an agent's decision will be
the same as if the health care were provided pursuant to a principal's
decision.
(17) No one may require
or prohibit the execution of a health care proxy by a person as a condition for
providing health care services or insurance to such person.
(18) Effect on other rights.
(i) A competent adult's failure to appoint a
health care agent or to provide an agent with specific health care instructions
pursuant to this section shall create no presumptions regarding the adult's
wishes about health care.
(ii)
Nothing in this section creates, expands, diminishes, impairs or supersedes any
authority that a principal may have under law to make or express decisions,
wishes or instructions regarding health care including decisions about
life-sustaining treatment, whether or not expressed in a health care
proxy.
(iii) This section is not
intended to permit or promote suicide, assisted suicide, or euthanasia.
Accordingly, nothing herein shall be construed to permit an agent to consent to
any act or omission to which a principal could not consent under law.
(19) A health care proxy or
similar instrument executed in another state or jurisdiction in compliance with
the law of that state or jurisdiction shall be considered validly executed for
purposes of this section.
(20)
Creation and use of proxies in residential facilities.
(i) A residential agency/facility, or a
sponsoring agency (see glossary) for family care homes, shall establish
procedures:
(a) to provide information to
adult persons about their right to create a health care proxy under this
Part;
(b) to educate adult persons
about the authority delegated under a health care proxy, what a proxy may
include or omit, and how a proxy is created and revoked;
(c) to help ensure that each person who
creates a proxy while residing at a facility does so voluntarily;
(d) to notify any facilities which provide
services to the principal, of the identity of the health care agent, at the
time such agent is authorized to make health care decisions for the
principal.
(ii) All such
procedures shall be established in accordance with regulations issued by the
Commissioner of OPWDD.
(21) Responsibilities of chief executive
officers.
(i) The chief executive officer of a
residential facility or a sponsoring agency of family care homes is responsible
for ensuring that, under the circumstances in subparagraph (ii) of this
paragraph, steps are taken, including but not limited to a special proceeding
pursuant to paragraph (22) of this subdivision and section
633.4(a)(10)
of this Part, to preserve and represent the best interests of a person who has
executed a health care proxy.
(ii)
Appropriate steps, including notifying MHLS, to preserve and protect the best
interests of a principal shall be taken when, in the opinion of the chief
executive officer:
(a) a health care proxy may
not have been validly executed; or
(b) an agent is acting in bad faith;
or
(c) an agent is not acting in
accordance with the standards set forth in subparagraph (6)(ii) of this
subdivision.
(22) Special proceeding authorized.
(i) A special proceeding may be commenced
pursuant to article 4 of the Civil Practice Law and Rules, in a court of
competent jurisdiction, with respect to any dispute arising under this section,
including but not limited to, a proceeding to:
(a) determine the validity of a health care
proxy; or
(b) remove an agent on
the grounds that the agent:
(1) is not
reasonably available, willing and competent to fulfill his or her obligations
under this section; or
(2) is
acting in bad faith; or
(c) override an agent's decision about health
care treatment on the grounds that:
(1) the
decision is made in bad faith; or
(2) the decision is not in accordance with
the standards set forth in subparagraph (6)(ii) of this subdivision.
(ii) Special
proceedings may be commenced by a health care provider, a conservator for or
committee of a principal, members of a principal's family, a close friend (see
glossary) of a principal, the Commissioner of Health, the Commissioner of
Mental Health, the Commissioner of OPWDD, or the chief executive officer of the
facility in which a person resides.
(23) Rights to be publicized.
(i) The Commissioner of OPWDD shall prepare a
statement summarizing the rights, duties and requirements of this section and
shall require that a copy of such statement be furnished to persons or their
families at or prior to the time of admission to a facility, to each member of
a residential facility's staff, and to each family care provider; and
(ii) The statement of rights required by this
paragraph may be included in any other statement of a person's rights required
by other provisions of OPWDD regulations.
(24) Health care proxy sample form (which
may, but need not be, in the following format).
[1] I, [Name of Principal] hereby appoint
[Name, home address and telephone number]
_________________________________________
as my health care agent to make any and all health care decisions for me, except to the extent that I state otherwise. This health care proxy shall take effect in the event I become unable to make my own health care decisions.
[NOTE: Although not necessary, and neither encouraged nor discouraged, you may wish to state instructions or wishes, and limit your agent's authority. Unless your agent knows your wishes about artificial nutrition and hydration (feeding tubes), your agent will not have authority to decide about artificial nutrition and hydration. If you choose to state instructions, wishes, or limits, please do so below:
[2] Optional instruction: I direct my agent
to make health care decisions in accordance with my wishes, instructions,
and/or limitations as stated below, or as otherwise known to him or her.
(Attach additional pages if necessary.)
_________________________________________
_________________________________________
_________________________________________
[3] In the event that the agent I appointed
above is unable, unwilling or unavailable to act as my health care agent, I
hereby appoint as an alternate:
_________________________________________
[Name, address and telephone number]
_________________________________________
[4] I understand that, unless I revoke it,
this proxy will remain in effect indefinitely, or until the date or the
occurrence of the conditions stated below. This proxy shall expire (specify a
date or specific conditions, if desired):
[5] Signature
_________________________________________
Address
_________________________________________
Date
_________________________________________
Statement by witness (must be 18 or older)
I declare that the person who signed (or asked another to sign) this document is personally known to me and appears to be of sound mind and to have done so willingly and free from duress. He or she signed (or asked another to sign for him or her) this document in my presence (and that party signed in my presence). I am not the person appointed as an agent by this document.
Witness (#1) ______________________________
Address ______________________________
Witness (#2) ______________________________
Address ______________________________
(b) Standards of certification. There are no standards of certification.
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