(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.