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Authority of Nurse Practitioners Under Current NYS Law

As a result of 2017 amendments to the Family Health Care Decisions Act (FHCDA) and 2018 amendments to the Health Care Proxy Law, a nurse practitioner can exercise substantially the same authority as an attending physician to determine patient incapacity and to write do-not-resuscitate (DNR) and other orders to withhold and/or withdraw life-sustaining treatment pursuant to those laws.  Chapter 430 of the Laws of 2017; Chapter 342 of the Laws of 2018.

Specifically, Chapter 430 of the Laws of 2017 amended the Public Health Law to expand the authority of an “attending nurse practitioner” to align it with the authority of the “attending physician” under FHCDA to determine incapacity and to orders to implement end-of-life decisions. 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.

More recently, Chapter 342 of the Laws of 2018 similarly expanded the authority of an attending nurse practitioner to align it with the authority of the attending physician under the Health Care Proxy law. This law became effective on February 3, 2019.

These laws do not amend the Surrogate Court Procedures Act (SCPA) 1750-b, which relates to individuals with developmental disabilities.

Nurse Practitioners and Capacity Determination

The following table clarifies current New York State Public Health Law and the nurse practitioner’s authority to do capacity and concurrent capacity determination. This table is accurate as of February 3, 2019.

Purpose
Initial Determination
Concurring Determination
Explanation
To empower a health care agent
YesYesAs a result of the 2018 amendment to the health care proxy law, the determination of incapacity can be by the "attending physician" or “attending nurse practitioner.”
In life-sustaining treatment cases the attending physician or nurse practitioner must consult with "another physician or nurse practitioner."
This means the HCP Law does allow an NP to determine incapacity or provide the required concurrent determination.
To empower a FHCDA surrogate
YesYesThe 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

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. Having a standardized approach to thoughtful MOLST discussions can help ensure best practices in shared medical decision-making. ECHO MOLST: Honoring Patient Preferences at End-of-Life provides valuable education to fulfill the demand for professional training and assistance on advance care planning, MOLST, and eMOLST admist the recent public health law changes.

The following table clarifies current New York State Public Health Law 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. The 2018 amendments to the health care proxy law do not impact this table.

Decision-makerCan NP Sign the MOLST?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 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
YesCurrently, 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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