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Authority of Nurse Practitioners and Current NYS Law

On November 29th, 2017, Governor Cuomo signed S.1869 (Hannon)/A.7277 (Gottfried), legislation enabling nurse practitioners to execute medical orders not to resuscitate and other orders pertaining to withholding and/or withdrawing life-sustaining treatment, as Chapter 430 of the laws of 2017.

Chapter 430 amends the Public Health Law to expand the authority of the “attending nurse practitioner” and align with the authority of the “attending physician” under Family Health Care Decisions Act (FHCDA) for making end-of-life decisions that result in medical orders in all clinical settings.  Under the Palliative Care Information Act, nurse practitioners are obliged to – and do – counsel patients and families about end-of-life options. The new law became effective on May 28, 2018, six months after the Governor signed the legislation.

The new law, however, does not amend the Surrogate Court Procedures Act (SCPA) 1750-b, which relates to individuals with developmental disabilities, or statutes governing health care proxies.

Thus, the new law will impact the Medical Orders of Life Sustaining Treatments (MOLST) form and process, the DOH MOLST Checklists, the MOLST Chart Documentation forms and eMOLST. Revisions to the documents and eMOLST are needed to acknowledge the new statutory authority afforded to nurse practitioners with this legislation. We are working with the Department of Health to align the MOLST documents with the new law.

We need to continue working on reducing arbitrary barriers that will include addressing the existing statue for health care proxies and Surrogate Court Procedures Act.  A bill introduced in this legislative session (S7713, A10345) aims to align Health Care Proxy law with FHCDA. Learn more about the proposed legislation and how you can help. Your support is needed!

Nurse Practitioners and Capacity Determination

There is understandable confusion when the scope of practice of nurse practitioners changed with amending the FHCDA, but not Health Care Proxy law or Surrogate Court Procedures Act (SCPA) 1750-b.

While these laws were not amended under this legislation, the scope of practice for nurse practitioners allows for nurse practitioner to assess capacity and notify the patient of the capacity determination when a FHCDA Surrogate makes decisions. There is no difference if the decision-maker is a health care agent.  It is particularly problematic when the new law expands the authority for the nurse practitioners to not only perform the primary capacity determination, but also medical determinations, notifications, special requirements, etc.

The following table clarifies current New York State Public Health Law NYSPHL and the nurse practitioner’s authority to do capacity and concurrent capacity determination. This table is accurate as of May 30, 2018. Pending legislation may impact this table.

Purpose
Initial Determination
Concurring Determination
Explanation
To empower a health care agent
NoNoThe health care proxy law, in PHL 2983.1, provides that the determination of incapacity must be by the "attending physician."  Per PHL 2980, that term applies only to a physician. In life-sustaining treatment cases the attending physician must consult with "another physician." This means the HCP Law does not allow an NP to determine incapacity or provide the required consult. The 2017 NP legislation did not amend this.
To empower a FHCDA surrogate
Yes, as of May 28, 2018YesThe FHCDA, in PHL 2994-c, as of May 28, provides that the determination of incapacity must be by the "attending physician or attending nurse practitioner." In life-sustaining treatment cases there must be a concurring determination by a "health or social services practitioner" which includes an NP. This means that the FHCDA does allow an NP to determine incapacity or provide the required concurring determination.
To empower a § SCPA 1750-b surrogate (decisions for patients with intellectual disabilities)
NoNo§ SCPA 1750-b(4)(a) provides that in life-sustaining treatment cases the "attending physician" as defined in PHL 2980.2 must determine incapacity. 
The attending physician must consult with another physician or licensed psychologist. Either the attending or consult must have special qualifications relating to the treatment of persons with intellectual disabilities. This means that § SCPA 1750-b does not allow an NP to determine incapacity or provide the required consult.

Nurse Practitioners and MOLST Process Beyond Signing MOLST Orders

MOLST is more than a form. Having a thoughtful MOLST discussion that ensures shared medical decision-making is best done using a standardized approach. The 8-Step MOLST Protocol was developed in 2005 to help physicians, nurse practitioners, physician assistants and others who are engaged in end-of-life discussions develop a systematic approach to end-of-life discussions that worked for physicians prior to MOLST.

The following table clarifies current New York State Public Health Law NYSPHL and the nurse practitioner’s authority to participate in the MOLST process and sign MOLST orders. This table is accurate as of May 30, 2018. Pending legislation may impact this table.

Decision-makerCan NP Sign the MOLST? (subject to the usual constraints on an NP)
Explanation
Decision by Patient (directly or by advance directive)
YesFalls within NP's scope of practice. No statutory limitation. NP can write the order.
Decision by  health care agent
YesThe health care proxy law, in requires the "health care provider" to honor decisions by agent.  "Health care provider" would include a NP. NP can write the order.
Decision by  FHCDA surrogate
Yes, as of May 28, 2018Currently, the FHCDA specifies that the attending physician must implement the surrogate's decision.  PHL 2994-F. The definition of attending physician (effective May 28) will include nurse practitioner. So, as of May 28, 2018, an NP can write the order.
Decision by an § SCPA 1750-b surrogate (decisions for patients with intellectual disabilities)
NoSCPA 1750-b.4(d)  provides that it is the “attending physician” who must write the order. The 2017 NP bill did not amend this.
Adapted from tables created by Robert N. Swidler, V.P.  Legal Services, St. Peter’s Health Partners, Albany NY

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