On November 29, 2017, Governor Cuomo signed The NPA's main legislative priority of 2017, the Do Not Resuscitate (DNR) Bill into law, authorizing nurse practitioners to sign DNR and MOLST orders.
Chapter 430 of 2017 became effective May 28, 2018.
When the new law takes effect on May 28, 2018, nurse practitioners will be able to sign DNR orders in all settings for any individual:
- who has capacity (including if the patient has a valid health care proxy);
- with a healthcare proxy that has taken effect, pursuant to the request of the patient’s healthcare agent; i.e., the patient has been determined by a physician to lack capacity, thereby empowering the health care agent designated in the health care proxy to make determinations without limitation, and that agent has directed the NP to issue a DNR order;
- who lacks capacity and has no health care agent, but a Court has appointed a surrogate to make health care determinations for the patient, and the duly authorized surrogate directed the NP to issue the DNR order.
The new law also makes several major clarifications regarding the NP’s authority to make determinations of capacity and lack of capacity. For example, the Public Health Law now provides that for purposes of a DNR:
- a “determination that an adult patient lacks capacity shall be made by the attending physician or attending nurse practitioner.”
- if that attending NP finds that the patient who has requested a DNR has capacity, the NP or physician may proceed with issuing the DNR as requested.
- if the physician or NP determines that the adult lacks capacity, that health care professional must issue the determination in writing, and note “the cause and nature of the patient’s incapacity.”
- if the attending NP or attending physician makes a determination of incapacity of a patient in a hospital setting, there must be a concurrence of at least one other physician. If the lack of capacity is due to mental illness, the concurring determination must be made by a board certified psychologist or neurologist.
The 2017 law also amends the Family Health Care Decisions Act to clarify that, in addition to physicians, NPs may determine lack of “decision making capacity to a reasonable degree of medical certainty,” potentially triggering the authority of a surrogate.
The 2017 law did not, however, amend the Article of the Public Health Law that pertains to healthcare proxies.
- Under current law, only a physician may make a determination of incapacity for the purposes of invoking a health care proxy.
**Please note as of June 2018, bills S. 7713 Hannon/A. 10345 Gottfried have passed the Senate and Assembly that will authorize a patient's attending nurse practitioner to witness the patient's execution of a health care proxy. This would make conforming changes to the section of law regarding health care proxies and nurse practitioners (as noted above). The bills will soon be sent to the Governor for his decision.**