N.Y. Comp. Codes R. & Regs. tit. 14 § 633.20

Current through Register Vol. 46, No. 45, November 2, 2024

Section 633.20 - Health care proxy (see glossary) for a person residing in a facility (see glossary) operated or certified by OPWDD

(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

(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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.20

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff.11/1/2015

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016