N.Y. Comp. Codes R. & Regs. tit. 14 § 633.18

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

Section 633.18 - Procedures governing do not resuscitate (DNR) orders (see glossary)

(a)Principles of compliance.

(1) The regulations contained in this section apply to persons (see glossary) in facilities operated or certified by OPWDD.

(2) Nothing in this section shall require facilities to expand their existing personnel, training, or equipment to provide cardiopulmonary resuscitation (see glossary).

(3) General requirements.

(i) Anyone admitted to a facility shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate, hereinafter referred to as a DNR order (see glossary) as provided in this section.

(ii) When a person who has a health care agent (see glossary) lacks capacity pursuant to section 633.20(a)(9) of this Part, the agent shall have the rights and authority that a person with capacity would have pursuant to this section, subject to the terms of the health care proxy, section 633.20 of this Part, and article 29-C of the New York State Public Health Law entitled "Health Care Agents and Proxies."

(iii) It is lawful for an attending physician (see glossary) to issue a DNR order provided that the order has been issued pursuant to the requirements of this section and article 29-B of the New York State Public Health Law, entitled, "Orders Not To Resuscitate". The order is to be included in writing in the medical portion of a person's clinical record and include all the terms and conditions of the order. A DNR order is effective upon issuance.

(iv) Issuance of orders.

(a) A DNR order may be originally issued by:

(1) an attending physician in a developmental center (see glossary) for a person located in the developmental center;

(2) an attending physician in a hospital (see glossary), a psychiatric center, or residential health care facility (see glossary) for a patient in the hospital, psychiatric center, or residential health care facility pursuant to regulations promulgated by the Department of Health.

(b) Nonhospital DNR orders (see glossary) may be issued by:

(1) an attending physician in a developmental center, to take effect only after departure from the developmental center;

(2) an attending physician in a hospital, psychiatric center, or residential health care facility, to take effect only after discharge from the hospital, psychiatric center or residential health care facility;

(3) an attending physician in the community, to take effect upon issuance.

(v) Before obtaining the consent of an adult person, a health care agent, a surrogate (see glossary) of the person, or a parent (see glossary) or legal guardian of a minor (see glossary) to a DNR order, an attending physician is to provide to the party giving consent information about the person's diagnosis and prognosis, the reasonably foreseeable risks and benefits for cardiopulmonary resuscitation for the person, and the consequences of a DNR order.

(4) Nonhospital DNR orders.

(i) In addition to the requirements for nonhospital DNR orders set forth in this paragraph, all the requirements of this section governing DNR orders apply to nonhospital DNR orders, unless other provisions are specifically set forth.

(ii) A nonhospital DNR order is to be issued in a format acceptable to the Commissioner of the Department of Health.

(iii) An attending physician who has issued a nonhospital DNR order and who transfers care of a person to another physician, is to inform the physician of the order.

(iv) A standard bracelet, developed by the Commissioner of the Department of Health, may be worn by a person with a nonhospital DNR order to identify that status. However, no one may require a person to wear such a bracelet and no one may require a person to wear such a bracelet as a condition for honoring a nonhospital DNR order or providing health care services.

(v) A nonhospital DNR order may be issued:

(a) in a developmental center, hospital, psychiatric center, or health care facility, to take effect only after departure from such facility;

(b) in the community, to take effect upon issuance.

(vi) For each adult person for whom a nonhospital DNR order has been issued, the attending physician is to review whether the order is still appropriate in light of the person's condition each time he or she examines the person, but at least every 90 days. While the review must occur at least every 90 days, the review need not occur more than once every seven days. The attending physician is to record the review in the medical portion of the person's clinical record provided, however, that a registered nurse who provides care to the person may record the review in the record at the direction of the physician. In such case, the attending physician is to include a confirmation of the review in the medical portion of the person's clinical record within 14 days of such review. The DNR order remains in effect even if there is a lapse in the time frame specified for the review.

(vii) Any adult person, health care agent, surrogate, or parent or legal guardian of a minor, who has consented to a nonhospital DNR order may at any time revoke his or her consent to the order by any act evidencing a specific intent to revoke such consent. Any health care professional (see glossary) informed of a revocation of consent to a nonhospital DNR order is to notify the attending physician of the revocation. An attending physician who is informed that a nonhospital DNR order has been revoked is to record the revocation in the person's medical record, cancel the order and make diligent efforts to retrieve the form issuing the order and the standard bracelet, if any.

(viii) If a person with a nonhospital DNR order relocates to a developmental center, hospital, psychiatric center, or residential health care facility, even on a temporary basis, the continuance of the order shall be governed by the provisions of paragraph (14) of this subdivision, as well as the dispute mediation provisions of paragraph (15).

(ix) It shall be lawful for staff at facilities, including staff who are designated by policy to provide initial emergency medical assistance, to honor nonhospital DNR orders.

(x) Staff at facilities operated or licensed by OPWDD who are provided with a nonhospital DNR order, or who identify the standard bracelet on a person's body, shall comply with the terms of such order, provided however, that such staff may disregard the order if:

(a) they believe in good faith that consent to the order has been revoked or that the order has been canceled; or

(b) physical confrontation appears likely because family members or others on the scene, excluding staff, object to the order.

(xi) No one may be subjected to criminal prosecution or civil liability, or be deemed to have engaged in unprofessional conduct, for honoring reasonably and in good faith, pursuant to this section, a nonhospital DNR order, or for disregarding a nonhospital DNR order pursuant to subparagraph (x) of this paragraph, or for other actions taken reasonably and in good faith pursuant to this section.

(5) Determination of capacity (see glossary) of an adult (see glossary) person to make a decision regarding cardiopulmonary resuscitation.

(i) Every adult person shall be presumed to have the capacity to make a decision regarding cardiopulmonary resuscitation unless determined otherwise pursuant to this paragraph or pursuant to a court order. A lack of capacity shall not be presumed from the fact that a committee of the property or conservator has been appointed for an adult pursuant to article 77 or 78 of the Mental Hygiene Law, or that a guardian has been appointed pursuant to article 17-A of the Surrogate's Court Procedure Act, or that a guardian was appointed pursuant to article 81 of the Mental Health Law, unless the order of the court provides otherwise.

(ii) A determination that an adult person lacks capacity is to be made by an attending physician to a reasonable degree of medical certainty. The determination is to be made in writing and contain such attending physician's opinion regarding the cause and nature of the person's incapacity including the extent and probable duration of such incapacity. The determination is to be included in the medical portion of a person's clinical record and the physician is to obtain a concurring opinion confirming an adult person's lack of capacity pursuant to the following:

(a) If an attending physician determines that lack of capacity of an adult person is due to a medical condition, at least one other physician must concur in that determination. If the person is located in a developmental center, hospital, psychiatric center, or residential health care facility, the concurring opinion shall be made by a physician authorized by the director of that developmental center, hospital, psychiatric center, or residential health care facility. The concurring determination is to be made in writing after personal examination of the person and is to contain the consulting physician's opinion regarding the cause and nature of the person's incapacity, including the extent and probable duration of such incapacity. Each concurring determination is to be included in the medical portion of a person's clinical record.

(b) If an attending physician determines that an adult person lacks capacity because of mental illness (see glossary), the concurring determination is to be provided by a physician certified or eligible to be certified by the American Board of Psychiatry and Neurology. The concurring determination is to be made in writing after personal examination of the person and is to contain the consulting physician's opinion regarding the cause and nature of the person's incapacity, including the extent and probable duration of such incapacity. Each concurring determination is to be included in the medical portion of a person's clinical record.

(c) If an attending physician determines that an adult person lacks capacity because of a developmental disability (see glossary), the concurring determination is to be made in writing after personal examination of the person by a physician or psychologist and is to contain his or her opinion regarding the cause and nature of the person's incapacity, including the extent and probable duration of such incapacity. Each concurring determination is to be included in the medical portion of a person's clinical record. Such concurring determination must be provided by:

(1) a physician licensed in New York State who is presently employed by a developmental center or a DDSO and has been so employed for at least one year; or

(2) a psychologist who is presently employed by a developmental center or a DDSO and has been so employed for at least one year; or

(3) a physician, licensed in New York State, employed for a minimum of two years to render care and services in a facility; or

(4) a psychologist, licensed in New York State, employed for a minimum of two years to render care and services in a facility; or

(5) a physician licensed in New York State who has had specialized training in developmental disabilities and has had two years experience treating those with developmental disabilities; or

(6) a psychologist licensed in New York State who has had specialized training in developmental disabilities and has had two years experience treating those with developmental disabilities; or

(7) a physician licensed in New York State whose name and credentials have been submitted to OPWDD and who has been approved by the commissioner of OPWDD to render such a concurring opinion; or

(8) a psychologist whose name and credentials have been submitted to OPWDD and who has been approved by the commissioner of OPWDD to render such a concurring opinion.

(iii) Notice of a determination that an adult person lacks capacity is to promptly be given:

(a) to the person, where there is any indication of the person's ability to understand the notice, in the means of communication normally used with that person, advising him or her that someone will be designated to give consent on his or her behalf, together with a copy of a statement summarizing the rights, duties and requirements of this section; and

(b) to the party on the surrogate list (see glossary) highest in order of priority listed; nothing in this section precludes or requires notice to more than one party on the surrogate list. When the party highest in priority is not reasonably available (see glossary), the immediate next party listed in subparagraph (8)(iv) of this subdivision is to be notified; and

(c) to the chief executive officer (see glossary) of the facility in which the person resides and/or from which the person was relocated, as appropriate.

(iv) A determination that a person lacks capacity to make a decision regarding a DNR order pursuant to this section shall not be construed as a finding that the person lacks capacity for any other purpose.

(6) Decisionmaking by an adult person with capacity to make a decision regarding cardiopulmonary resuscitation.

(i) The consent of an adult person with capacity must be obtained prior to issuing a DNR order, except as provided in subparagraph (vi) of this paragraph.

(ii) If an adult person has capacity at the time the order is to be issued, the consent must be obtained at or about such time, notwithstanding any prior oral or written consent.

(iii) An adult person with capacity may express a decision to consent to a DNR order as follows:

(a) When an adult person is in a developmental center, hospital, psychiatric center, or residential health care facility:

(1) in ways normally used by the person to communicate, in the presence of at least two witnesses, 18 years of age or older, one of whom is a physician at the developmental center, hospital, psychiatric center, or residential health care facility and recorded in the medical portion of the person's clinical record; or

(2) in writing, dated and signed in the presence of at least two witnesses 18 years of age or older who shall also sign the decision. The decision shall be included in the medical portion of the person's clinical record.

(b) When an adult person is in the community:

(1) to the attending physician in ways normally used by the person to communicate; or

(2) in writing, dated and signed in the presence of at least two witnesses 18 years of age or older who must also sign the decision.

(iv) An attending physician who is provided with or informed of a decision pursuant to this paragraph is to record or include the decision in the medical portion of the person's clinical record if the decision has not been recorded or included, and either:

(a) promptly issue a DNR order or issue an order at such time as the conditions, if any, specified in the decision are met, and inform the chief executive officer of the facility in which the person resides, who shall ensure notification is made to the facility staff responsible for the person's care, of the order; or

(b) promptly make his or her objection to the issuance of such an order and the reasons therefore known to the person and either make all reasonable efforts to arrange for the transfer of the person to another physician, if necessary; or promptly submit the matter to the dispute mediation system as discussed in paragraph (15) of this subdivision, if applicable.

(v) Prior to issuing a DNR order, for an adult person who has expressed a decision consenting to a DNR order under specified medical conditions, an attending physician must make a determination to a reasonable degree of medical certainty, that such conditions exist, and include the determination in the medical portion of the person's clinical record. An attending physician is to notify the person of such determination and his or her intent to issue a DNR order.

(vi) In the event that an attending physician determines that, to a reasonable degree of medical certainty, an adult person who has capacity would suffer immediate and severe injury from a discussion of cardiopulmonary resuscitation, and has documented this in the medical portion of the person's clinical record, the attending physician may issue a DNR order without obtaining the person's consent, but only after:

(a) ascertaining the wishes of the person to the extent possible without subjecting the person to a risk of immediate and severe injury;

(b) including the reasons for not consulting the person in the medical portion of the person's clinical record; and

(c) obtaining the consent of a health care agent or a surrogate pursuant to paragraph (8) of this subdivision. However, the consent of a health care agent or a surrogate is not required if the person has previously consented to a DNR order pursuant to this paragraph;

(d) for persons in a developmental center, hospital, psychiatric center or residential health care facility, consulting with and obtaining the written concurrence of another physician selected by the director of that developmental center, hospital, psychiatric center, or residential health care facility, or selected by a party authorized by the director to do so. Such concurrence shall be given after personal examination of the person concerning the assessment of immediate and severe injury to the person from a decision to use cardiopulmonary resuscitation.

(vii) Where the provisions of subparagraph (vi) of this paragraph have been invoked, an attending physician reassess, on a regular basis, a person's risk of injury from a decision to use cardiopulmonary resuscitation, and is to consult with the person regarding resuscitation as soon as the medical basis for not consulting with the person no longer exists.

(7) Notice of consent.

(i) The chief executive office of the facility in which a person resides is to be advised at any time a DNR order is issued, whether issued as a nonhospital order or whether issued in a developmental center, hospital, psychiatric center or residential health care facility. However notification to the chief executive officer of a facility is not to delay issuance of a DNR order. If a chief executive officer concludes that the person lacks capacity or that issuance of a DNR order may be inconsistent with the person's wishes or that the order fails to meet the necessary requirements spelled out in this section and if the person is in a developmental center, hospital, psychiatric center or residential health care facility, the chief executive officer shall submit the matter to the appropriate dispute mediation system (see glossary). Otherwise, the chief executive officer may seek judicial review in conformance with paragraph (16) of this subdivision.

(ii) If a person is in a developmental center, notice of a person's consent to a DNR order, or of a health care agent's consent to a DNR order, or of a surrogate's consent to a DNR order, is also to be given to the director of the developmental center in which the person is located at the time the consent was given. Such notice shall be given prior to the issuance of a DNR order. Notification to the director shall not delay issuance of a DNR order.

(8) Surrogate decisionmaking.

(i) The consent of a health care agent who is available and who is authorized to make a decision regarding cardiopulmonary resuscitation if a person lacks the capacity to do so must be obtained prior to issuing a DNR order. If, there is no such agent, consent of a surrogate acting on behalf of an adult person who lacks capacity to make a decision regarding cardiopulmonary resuscitation, or on behalf of an adult person for whom consent by a surrogate is authorized by subparagraph (8)(iv) of this subdivision must be obtained prior to issuing a DNR order except as provided in subparagraph (iii) of this paragraph or paragraph (9) of this subdivision.

(ii) A decision regarding cardiopulmonary resuscitation by a health care agent on a person's behalf is governed by section 633.20 of this Part and article 29-C of the New York State Public Health Law and has priority over decisions by any other party except the person or as otherwise provided in a health care proxy.

(iii) The consent of a surrogate or a health care agent is not required where an adult person, prior to losing capacity to consent, had consented to a DNR order pursuant to subparagraph (6)(iii), (iv), or (v) of this subdivision.

(iv) One party (in the order of priority listed) from the following list, has the authority to act as surrogate on behalf of a person, when that person is not competent to make a decision and that person has not appointed a health care agent. When the party highest in priority listed below is not reasonably available, the immediate next party is to be solicited.

(a) a "committee of the person" or a guardian appointed pursuant to article 17-A of the Surrogate's Court Procedure Act, provided that this clause will not be construed to require the appointment of a "committee of the person" or guardian for the purpose of making the resuscitation decision;

(b) the spouse;

(c) a son or daughter who is 18 years of age or older;

(d) a parent;

(e) a brother or sister who is 18 years of age or older; and

(f) a close friend (see glossary).

(v) After a surrogate has been identified, the name of such party is to be included in the medical portion of a person's clinical record.

(vi) The unavailability of prior parties or the unwillingness to make a decision by prior parties on the surrogate's list is to be documented in the medical portion of a person's clinical record.

(vii) A determination that a surrogate is not competent to act as surrogate is to be documented with the reasons therefore in the medical portion of a person's clinical record and may be the subject of an appeal to the dispute mediation system by a surrogate, if a person is in a developmental center, hospital, psychiatric center, or residential health care facility.

(viii) A surrogate is to make a decision regarding cardiopulmonary resuscitation on the basis of the adult person's wishes including a consideration of the person's religious and moral beliefs, or, if the person's wishes are unknown and cannot be ascertained, on the basis of the person's best interests.

(ix) Notwithstanding any law to the contrary, a surrogate is to have the same right as a person to receive medical information and the medical portion of the clinical record.

(x) A surrogate may consent to a DNR order on behalf of an adult person only if there has been a determination by an attending physician with the concurrence of another physician, given only after personal examination of the person that, to a reasonable degree of medical certainty:

(a) the person has a terminal condition (see glossary); or

(b) the person is permanently unconscious; or

(c) resuscitation would be medically futile (see glossary); or

(d) resuscitation would impose an extraordinary burden on the person in light of the person's medical condition and the expected outcome of resuscitation for the person.

(xi) For the purpose of subparagraph (x) of this paragraph, if the person is in a developmental center, the attending physician shall seek the concurrence of another physician selected by the director of the developmental center.

(xii) Each determination and a brief statement of the reasons therefor are to be included in the medical portion of a person's clinical record.

(xiii) A surrogate is to express a decision consenting to a DNR order:

(a) in writing, dated, and signed in the presence of one witness 18 years of age or older who is to sign the decision; or

(b) if the person is in a developmental center, hospital, psychiatric center, or residential health care facility, such decision may be made orally, to two parties 18 years of age or older, one of whom is a physician affiliated with that developmental center, hospital, psychiatric center, or residential health care facility. Any such decision is to be recorded in the medical portion of a person's clinical record.

(xiv) A health care agent may consent orally, to the attending physician, to a nonhospital DNR order.

(xv) In a developmental center, hospital, psychiatric center or residential health care facility, an attending physician who is provided with the decision of a surrogate shall include the decision in the medical portion of a person's clinical record, and, if the surrogate has consented to the issuance of a DNR order, shall either:

(a) promptly issue a DNR order and ensure that the developmental center staff responsible for the person's care are informed of the order; or

(b) promptly make the attending physician's objection to the issuance of such an order known to the surrogate and either make all reasonable efforts to arrange for the transfer of the person to another physician, if necessary, or promptly refer the matter to the dispute mediation system.

(xvi) If a person is in a developmental center, hospital, psychiatric center or residential health care facility, notice of a surrogate's consent to a DNR order is to be given to the director of the developmental center, hospital, psychiatric center, or residential health care facility in which a person is located at the time the consent was given, as well as to the chief executive officer of the residential facility in which a person resides at the time the consent is given or from which the person was relocated, if applicable. Such notice is to be given prior to the issuance pursuant to this section of a DNR order. Notification to a director of a developmental center, hospital, psychiatric center or residential health care facility and/or the chief executive officer of the facility in which a person resides or from which a person has been relocated, if applicable, will not delay issuance of a DNR order. If a director of a developmental center or other chief executive officer, if applicable, concludes that a person has capacity or that issuance of a DNR order is otherwise inconsistent with this section, the director at the developmental center and/or other chief executive officer shall submit the matter to the appropriate dispute mediation system.

(xvii) If a person is in a developmental center, hospital, psychiatric center, or residential health care facility, and an attending physician has actual notice of opposition to a surrogate's consent to a DNR order by any party on the surrogate list, the physician is to submit the matter to the appropriate dispute mediation system and such order must not be issued or must be revoked in accordance with the provisions of paragraph (12) of this subdivision.

(xviii) For persons residing in facilities other than developmental centers, notice of a surrogate's consent to a DNR order is to be given to the chief executive officer of the facility in which the person resides. Such notice is to be given prior to the issuance of the DNR order, pursuant to this section. Notification to a chief executive officer is not to delay issuance of a DNR order. If a person is in a developmental center, hospital, psychiatric center, or residential health care facility, and a chief executive officer concludes that a person has capacity or that issuance of a DNR order is otherwise inconsistent with this section, the chief executive officer shall submit the matter to the appropriate dispute mediation system. Otherwise, the chief executive officer may seek judicial review in conformance with paragraph (16) of this subdivision.

(xix) If a surrogate has consented to a DNR order, notice of the surrogate's decision must be given to the person where there is any indication of the person's ability to comprehend such notice, except if a determination has been made pursuant to subparagraph (6)(vi) of this subdivision. If the person objects, a DNR order shall not be issued.

(9) Decisionmaking on behalf of an adult person without capacity for whom no surrogate is available and for whom no health care agent has been appointed.

(i) If a surrogate is:

(a) not reasonably available; or

(b) not willing to make a decision regarding cardiopulmonary resuscitation; or

(c) not competent to make a decision regarding cardiopulmonary resuscitation; and

(ii) If a person lacks capacity to make a decision regarding cardiopulmonary resuscitation or if a person, when capacitated, did not previously consent to the issuance of a DNR order, then an attending physician:

(a) may issue a DNR order, provided that the attending physician determines, and documents in the medical portion of a person's clinical record, that to a reasonable degree of medical certainty, resuscitation would be medically futile, and another physician, after personal examination of the person, reviews and concurs in writing with such determination (if the person is located in a developmental center, hospital, psychiatric center, or residential health care facility, the second physician shall be a physician authorized by the director of that developmental center, hospital, psychiatric center, or residential health care facility); or

(b) issues a DNR order provided that a court has granted a judgment directing the issuance of such an order; and

(c) documents in the medical portion of a person's clinical record that no surrogate was available, competent or willing to make a decision regarding cardiopulmonary resuscitation for the person.

(iii) For a person who is in a developmental center, hospital, psychiatric center, or residential health care facility, prior to issuance of a DNR order pursuant to subparagraph (ii) of this paragraph, notice of such order is to be given to the director of the developmental center, hospital, psychiatric center, or residential health care facility in which the person is located at the time the decision to issue a DNR order is made, and/or to the chief executive officer of the residential facility from which the person was relocated, if applicable. Notification to the director and/or other chief executive officer is not to delay issuance of a DNR order. If a director and/or other chief executive officer concludes that a person has capacity or that issuance of a DNR order is otherwise inconsistent with this section, the director and/or other chief executive officer shall submit the matter to the appropriate dispute mediation system.

(iv) For a person residing in a facility other than a developmental center, notice is to be given to the chief executive officer of that facility. Notification to the chief executive officer is not to delay issuance of a DNR order.

(v) Notwithstanding any other provision of this paragraph, where a decision to consent to a DNR order has been made, notice of the decision is to be given to the person where there is any indication of the person's ability to comprehend such notice, except where a determination has been made pursuant to paragraph (6) of this subdivision. If the person objects, a DNR order is not to be issued.

(10) Decisionmaking on behalf of a person who is a minor (see glossary).

(i) An attending physician, in consultation with a minor's parent or legal guardian, is to determine whether a minor has the capacity to make a decision regarding resuscitation.

(ii) The consent of a minor's parent or legal guardian and the consent of the minor, if the minor has capacity, must be obtained prior to issuing a DNR order for the minor.

(iii) A parent or legal guardian may consent to a DNR order on behalf of a minor only if there has been a written determination by the attending physician, with the written concurrence of another physician, given after personal examination of the minor, that, to a reasonable degree of medical certainty, the minor suffers from one of the medical conditions set forth in subparagraph (8)(x) of this subdivision. If the person is in a developmental center, the concurring opinion shall be given by a physician authoried by the director of the developmental center. Each determination is to be documented in the medical portion of a minor's clinical record.

(iv) Where an attending physician has reason to believe that there is another parent or a noncustodial parent who has not been informed of a decision to issue a DNR order for the minor, the attending physician, or someone acting on behalf of the attending physician, is to make reasonable efforts to determine if the uninformed parent or noncustodial parent has maintained substantial and continuous contact with the minor and, if so, is to make diligent efforts to notify that parent or noncustodial parent of the decision prior to issuing the order.

(v) For a minor who is located in a developmental center, hospital, psychiatric center, or residential health care facility, notice of a decision to issue a DNR order for a minor is to be given to the director of the developmental center, hospital, psychiatric center, or residential health care facility in which the minor is located at the time the consent is given, and/or to the chief executive officer of the residential facility from which the minor was relocated, if applicable. Such notice is to be given prior to issuance of a DNR order. Notification to a director or other chief executive officer is not to delay issuance of a DNR order. If a director or other chief executive officer concludes that issuance of a DNR order is inconsistent with this section, the director or other chief executive officer is to submit the matter to the appropriate dispute mediation system.

(vi) A parent or legal guardian of a person who is a minor, in making a decision regarding cardiopulmonary resuscitation, is to consider the minor's wishes, including a consideration of the minor's religious and moral beliefs, and is to express a decision consenting to issuance of a DNR order:

(a) in writing, dated, and signed in the presence of one witness who is 18 years of age or older who must also sign the decision; or

(b) if a person is in a developmental center, hospital, psychiatric center, or residential health care facility, such decision may be made orally, to two parties 18 years of age or older, one of whom is a physician affiliated with that developmental center, hospital, psychiatric center, or residential health care facility in which the person is being treated. Any such decision shall be recorded in the medical portion of a person's clinical record.

(vii) An attending physician who is provided with the decision of a minor's parent or legal guardian, expressed pursuant to this paragraph, and of the minor if the minor has capacity, is to include such decision or decisions in the medical portion of a minor's clinical record.

(viii) If a minor is in a developmental center, hospital, psychiatric center, or residential health care facility and an attending physician has actual notice of the opposition of a parent, noncustodial parent, or legal guardian of a minor to consent by another parent to a DNR order for a minor, the physician is to submit the matter to the appropriate dispute mediation system and such order cannot be issued or must be revoked in accordance with the provisions of paragraph (12) of this subdivision.

(ix) If a parent or legal guardian of a minor has consented to a DNR order, notice of the parent or legal guardian's decision is to be given to the minor where there is any indication of the minor's ability to comprehend such notice, except if a determination has been made pursuant to subparagraph (6)(vi) of this subdivision. If the minor objects, a DNR order cannot be issued.

(11) Medical treatment. Consent to the issuance of a DNR order does not constitute consent to withhold or withdraw medical treatment other than cardiopulmonary resuscitation.

(12) Revocation of consent.

(i) A person, including a minor, or a health care agent may, at any time, revoke his or her consent to a DNR order by any act or communication evidencing a specific intent to revoke such consent. Such act or communication may be, but is not limited to, an oral or written declaration to a physician, or to a member of the nursing staff or other staff members at a facility certified or operated by OPWDD; or, when located in a hospital, psychiatric center, or residential health care facility, to a physician or member of the nursing staff there.

(ii) Any surrogate, parent, or legal guardian may at any time revoke his or her consent to a DNR order by:

(a) notifying a physician or member of the nursing staff, of the revocation of consent in writing, dated and signed; or

(b) orally notifying the attending physician in the presence of a witness 18 years of age or older.

(iii) If, at any time, a person objects, by any means he or she typically uses to communicate, to a DNR order authorized by a surrogate or health care agent, said DNR order must either not be issued or must be withdrawn.

(iv) Any physician who is informed of or provided with a revocation of consent pursuant to this paragraph must immediately include the revocation in the medical portion of a person's clinical record, cancel the order, and notify the chief executive officer of the facility where the person resides, who shall ensure that notification is made to staff responsible for the person's care, of the revocation and cancellation. If the order is a nonhospital DNR order, the physician is to make diligent efforts to retrieve the form issuing the order, and the standard bracelet, if any.

(v) Any member of the nursing staff or other facility staff with responsibilities for a person, who is informed of or provided with a revocation of consent, except pursuant to subparagraph (iv) of this paragraph, shall immediately notify a physician of such revocation.

(13) Physician review.

(i) For each person for whom a DNR order has been issued, an attending physician is to review the person's clinical record and medical condition to determine if the order is still appropriate in light of the person's condition and is to indicate in the medical portion of the person's clinical record that the order has been reviewed:

(a) for a person located in a developmental center, at least every seven days;

(b) for each person for whom a nonhospital DNR order has been issued, the attending physician is to review whether the order is still appropriate in light of the person's condition each time he or she examines the person, whether in a hospital or elsewhere, but at least every 90 days, provided that the review need not occur more than once every seven days. The attending physician is to record the review in the medical portion of a person's clinical record provided, however, that a registered nurse who provides direct care to the person may record the review in the clinical record at the direction of the physician. In such case, the attending physician is to include a confirmation of the review in the medical portion of a person's clinical record within 14 days of such review.

(ii) Failure to comply with subparagraph (i) of this paragraph does not render a DNR order invalid.

(iii) If an attending physician determines at any time that a DNR order is no longer appropriate because a person's medical condition has improved, the physician is to immediately notify the party who consented to the order. Except as provided in subparagraph (iv) of this paragraph, if such party declines to revoke consent to the order, the physician is to promptly:

(a) make reasonable efforts to arrange for the transfer of care of the person to another physician, if necessary; or

(b) submit the matter to the dispute mediation system, if appropriate.

(iv) If a DNR order was entered upon the consent of a surrogate, parent, or legal guardian and the attending physician who issued the order, or, if unavailable, another attending physician, at any time determines that a person does not suffer from one of the medical conditions set forth in subparagraph (8)(x) of this subdivision, the attending physician shall immediately include such determination in the person's record, cancel the order, and notify the person who consented to the order and the chief executive officer of the facility where the person resides, who shall ensure that notification is made to all staff responsible for the person's care of the cancellation.

(v) If a DNR order was entered upon the consent of a surrogate and the person at any time gains or regains capacity, the attending physician who issued the order, or, if unavailable, another attending physician, is to immediately cancel the order and notify the party who consented to the order and the chief executive officer of the facility where the person resides, who shall ensure that notification is made to all staff directly responsible for the person's care of the cancellation.

(14) Relocation.

(i) If a person for whom a DNR order has been issued is to be relocated to a developmental center, hospital, psychiatric center, or residential health care facility, the ambulance personnel, if such are involved, and the receiving developmental center, hospital, psychiatric center, or residential health care facility shall be advised of the order.

(ii) The order remains effective, unless revoked pursuant to this section, until the attending physician first examines the transferred person, whereupon the attending physician must either:

(a) issue an order continuing the prior DNR order, and such order may be issued without obtaining further consent from the person, surrogate or parent pursuant to this section; or

(b) cancel the DNR order, provided the attending physician immediately notifies the person who consented to the order and, if in a developmental center, ensures that notification is made to the developmental center staff responsible for the person's care of the cancellation. Such cancellation does not preclude the entry of a new order pursuant to this section.

(15) Dispute mediation system (DMS) at developmental centers when a person is located at a developmental center or small residential unit (SRU).

(i)

(i) Dispute mediation systems are available at developmental centers, hospitals, psychiatric centers, and residential health care facilities licensed pursuant to article 28 of the Public Health Law. Dispute mediation may apply to a nonhospital DNR order only if the person is located in one of the aforementioned facilities at the time the dispute is brought to the attention of its staff.

(ii) The requirements below for dispute mediation only apply to DNR orders that are effective while a person is located in a developmental center.

(iii) Each developmental center shall establish a dispute mediation system for the purpose of mediating any disputes related to DNR orders for persons located in the developmental center, including disputes regarding:

(a) determination of a person's capacity to make a decision regarding cardiopulmonary resuscitation;

(b) issuance of a DNR order; or

(c) determination of a surrogate's competence pursuant to subparagraph (8)(vii) of this subdivision.

(iv) Only the dispute mediation system established for the developmental center in which a person is located at the time of a dispute shall have the authority to mediate that dispute.

(v) The dispute mediation system shall not have the authority to make a determination on whether a DNR order shall be issued.

(vi) The dispute mediation system shall attempt to resolve the dispute between the parties and aid the parties in reaching a mutually agreeable decision.

(vii) The dispute mediation system shall be described in writing.

(viii) A developmental center may utilize already existing mechanisms for its dispute mediation system membership, or may create a body specifically for this purpose.

(ix) If a dispute involves a person deemed to lack capacity pursuant to either clause (5)(ii)(b) or (c) of this subdivision, the membership of the dispute mediation system must include:

(a) a physician qualified to give a concurring determination regarding capacity pursuant to clause (5)(ii)(b) or (c) of this subdivision, whichever is applicable; or

(b) a family member or a "guardian of the person" of any person with a mental illness or developmental disability of the same or similar nature.

(x) No relative, correspondent, surrogate or potential surrogate, or any party involved in any decisionmaking process or procedure that resulted in the determination of capacity or in the issuance of a DNR order for a person whose case is in dispute may serve as a member of the dispute mediation system reviewing that case.

(xi) The dispute mediation system is authorized to mediate disputes regarding the issuance of a DNR order and disputes regarding determination of capacity arising under this section:

(a) between a person and an attending physician or the developmental center caring for the person; or

(b) between a person who is a minor and an attending physician or the developmental center caring for the minor; or between a minor and the minor's parent or legal guardian; or

(c) among an attending physician, a parent, a noncustodial parent, a legal guardian, anyone on the surrogate list, or the developmental center, or the chief executive officer of the facility from which the person was relocated.

(xii) Upon submission of a dispute regarding the issuance of a DNR order to the dispute mediation system, a DNR order cannot be issued, or must be revoked and may not be reissued until:

(a) the dispute has been resolved or the dispute mediation system has concluded its efforts to resolve the dispute; or

(b) 72 hours have elapsed from the time of submission of the dispute, whichever shall occur first; or

(c) the 72-hour period shall begin upon submission, by any authorized party, either orally or in writing, of an objection to the issuance of a DNR order to any member of the developmental center's dispute mediation system.

(xiii) If a dispute between a person expressing a decision consenting to a DNR order and an attending physician or the developmental center that is caring for the person is submitted to the dispute mediation system and either the dispute mediation system has concluded its efforts to mediate the dispute without resolution; or 72 hours have elapsed from the time of submission without resolution of the dispute, whichever shall occur first, the attending physician is to either:

(a) promptly issue a DNR order or issue the order at such time as the conditions, if any, specified in the decision are met, and inform the developmental center staff responsible for the person's care of the issuance of the order; or

(b) promptly arrange for the transfer of the person to another physician.

(xiv) If any other dispute between parties listed in subparagraph (x) of this paragraph is submitted to the dispute mediation system, and the dispute mediation system has concluded its efforts to mediate the dispute without resolution; or 72 hours have elapsed from the time of submission without resolution of the dispute, whichever occurs first, an attending physician may:

(a) reissue the original order; or

(b) refuse to reissue the original order and inform the disputants of their right to judicial review as provided below in paragraph (16) of this subdivision.

(16) Judicial review.

(i) An adult person; an attending physician; a parent, non-custodial parent, or a legal guardian of a person who is a minor; any party on the surrogate list; the director of the developmental center that is caring for a person; and, if the person is in or was moved from a residential facility, the chief executive officer of that facility, may commence a special proceeding 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, except that the decision of any person refusing to consent to or objecting to the issuance of a DNR order may not be subjected to judicial review.

(ii) In any proceeding brought challenging a decision regarding the issuance of a DNR order on the ground that the decision is contrary to a person's wishes or best interests, the party or entity challenging the decision must show by clear and convincing evidence that the decision is contrary to the person's wishes including consideration of the person's religious and moral beliefs, or, in the absence of evidence of the person's wishes, the decision is contrary to the person's best interests.

(iii) In any other proceeding brought pursuant to this paragraph, the court will make its determination based upon the applicable substantive standards and procedures set forth in this section, and article 29-B of the Public Health Law.

(iv) In any proceeding brought pursuant to this paragraph, the court may issue an order, pursuant to the standards applicable to the issuance of a temporary restraining order according to section 6313 of the Civil Practice Law and Rules, which will suspend the DNR order to permit review of the matter by the court.

(v) Where a party or entity has invoked the dispute mediation system, no such judicial proceeding can be commenced until the dispute mediation system has concluded its efforts to resolve the dispute or 72 hours have elapsed from the submission of the dispute to the dispute mediation system, whichever shall occur first. However, a person who is or would be the subject of a DNR order may commence an action for relief with respect to any dispute under this section at any time. Further, the Department of Health, OPWDD, or any other duly authorized State agency may commence an action or proceeding to enjoin a violation of this section at any time.

(17) Judicially approved DNR order.

(i) If no surrogate is reasonably available, willing, or competent to make a decision regarding issuance of a DNR order on behalf of an adult person who lacks capacity and who has not previously expressed a decision regarding cardiopulmonary resuscitation pursuant to this Part, only an attending physician or director of a developmental center, hospital, psychiatric center, or residential health care facility may commence a special proceeding pursuant to article 4 of the Civil Practice Law and Rules, in a court of competent jurisdiction, for a judgment directing the physician to issue a DNR order where the person:

(a) has a terminal condition;

(b) is permanently unconcious; or

(c) resuscitation would impose an extraordinary burden on the person in light of the person's medical condition and where the expected outcome of resuscitation for the person, and issuance of a DNR order is consistent with the person's wishes including a consideration of the person's religious and moral beliefs; or in the absence of evidence of the person's wishes, the person's best interests.

(ii) Nothing in this section shall be construed to preclude a court of competent jurisdiction from approving the issuance of a DNR order under circumstances other than those under which such an order may be issued pursuant to this section and article 29-B of the Public Health Law.

(18) Immunity.

(i) No party shall be subject to criminal prosecution, civil liability or be deemed to have engaged in unprofessional conduct:

(a) for carrying out, in good faith and pursuant to this section, a decision regarding cardiopulmonary resuscitation or for any action taken in compliance with the requirements set forth in this section;

(b) for providing cardiopulmonary resuscitation to a person for whom a DNR order has been issued, provided that the party:

(1) reasonably and in good faith was unaware of the issuance of a DNR order; or

(2) reasonably and in good faith believed that the DNR order was revoked or canceled; or

(3) reasonably believed, in the case of a nonhospital DNR order, that physical confrontation appeared likely because family members or others at the scene, excluding facility staff, objected to the order.

(ii) No party shall be subjected to criminal prosecution or civil liability for consenting or declining to consent in good faith, on behalf of a person, to the issuance of a DNR order pursuant to this section.

(iii) No party shall be subjected to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct for acts performed in good faith as a mediator in the dispute mediation system established by this section.

(19) Responsibilities of chief executive officers:

(i) ensuring that each member of the facility's staff involved in the provision of care is trained in the requirements governing DNR orders; and

(ii) ensuring that persons admitted to facilities and their families are advised of their rights regarding DNR orders;

(iii) working, to the extent practicable, with attending physicians to ensure that appropriate notifications are given to the facility, as required by this section and by article 29-B of the Public Health Law.

(b)Standards of certification. There are no standards of certification.

(c)Nonhospital order not to resuscitate form.

Click to View Image

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.18

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