Legislative Changes

The 2018 New York State legislative session ended in June. These pending and proposed legislation are critical to the MOLST program and have important next steps.

Pending Legislation

New NP Bill Aligns with Current NYSPHL

Senator Kemp Hannon introduced a new bill (S7713, A10345) that would address a key concern with legislation that enables nurse practitioners (NPs) to execute medical orders not to resuscitate and other orders pertaining to withholding and/or withdrawing life-sustaining treatment, which goes into effect on May 28, 2018 (“NP DNR Bill”). Assemblyman Gottfried introduced a companion bill in the Assembly. The bill passed both the Senate and Assembly and is awaiting Governor Cuomo’s signature.  If signed, the law would go into effect 90 days after it is signed. This legislation is critical for the expansion of NP involvement in in end of life care. The legislation can be found here. We ask that you urge Governor Cuomo to sign this legislation as soon as possible.

Despite the overall support of the NP DNR Bill, many physicians, NPs, nursing homes and health systems were concerned that the legislation did not align the new role of NPs with existing laws governing health care proxies (HCPs), and, as a result, would not extend the authority of NPs to perform capacity determinations and execute DNR and other medical orders for individuals who have designated a HCP.

The new bill directly addresses this concern and would align existing HCP laws with the NP DNR Bill. The bill would authorize NPs making determinations of capacity for purposes of executing or implementing a HCP, issue orders not to resuscitate, and issue other orders pertaining to withholding and/or withdrawing life-sustaining treatment and provide appropriate notification of the capacity determination, as well as recovery and documentation of capacity. Importantly, the bill would take effect on the same date as the NP DNR Bill, which will limit both practitioner and patient confusion regarding the new role of NPs regarding medical orders like DNR and MOLST.

The bill would also address determination of capacity for individuals with developmental disabilities to execute a health care proxy. Under the proposed legislation, in order to determine capacity to execute a health care proxy for a patient with developmental disabilities, the NP must: (a) be employed by a DDSO; or (b) have been employed for at least 2 years in a facility or program operated, licensed or authorized by OPWDD; or (c) have been approved by the commissioner of OPWDD as either possessing specialized training or have 3 years experience in providing services to individuals with DD.

Similar to the attending physician, if an attending nurse practitioner of a patient in a general hospital or mental hygiene facility determines that a patient lacks capacity because of mental illness, the attending physician or attending nurse practitioner who makes the determination must be, or must consult, with a qualified psychiatrist or qualified psychiatric NP.

Increasingly, NPs are the primary care provider of choice for many New Yorkers, often serving as the attending health care provider for patients in long-term care, rural and urban areas of the state. We commend Senator Hannon and Assemblyman Gottfried for working to ensure that more New Yorkers will benefit from conversations between patients and their NPs regarding advance directives and thoughtful MOLST discussions.

Proposed Legislation

Combined Health Care Proxy and eMOLST Registry Bill

Assemblyman Joseph Morelle introduced new legislation (A9063) in 2018 related to the eMOLST Registry, combining the prior eMOLST Registry legislation with a proposal to require the Department of Health (DOH) to develop a health care proxy registry.  The bill defines “Medical Orders for Life Sustaining Treatment (MOLST)” under the Public Health Law and directs the Department to establish an electronic registry for health care decision medical orders and documents, placing both the eMOLST program and registry for health care proxies under one Health Care Decisions Document Registry. The bill was referred to the Assembly Health Committee with 14 co-sponsors, including a number of members on the Assembly Health Committee.  Unfortunately, it never moved out of the Assembly Health Committee and was not introduced in the Senate.

This legislation is critical to the continued success of the MOLST Program. We need volunteers willing to educate your local Senators and Assembly members about MOLST and share the value of eMOLST in improving quality & patient safety, ensuring accessibility in an emergency and achieving the quadruple aim. We need to introduce and pass legislation during the 2019 session. If interested, please contact Dr. Patricia Bomba

The bill contains a critical provision that would require practitioners who complete a MOLST form to submit to the Registry within 14 days.  By requiring health care professionals to submit completed MOLST forms to the registry, the bill will ensure the most current MOLST form is accessible in an electronic format, allowing for a patient’s end-of-life preferences to be followed as he or she moves through the health care system, facility to facility, physician to physician.  Other states that have established MOLST (or POLST) registries have included mandatory submission as a necessary component of operating the registry.   In efforts to support the submission of MOLST forms, the MOLST program has already developed optical scanning recognition system that simplifies the process for practitioners to submit paper versions of the MOLST to eMOLST.

Requiring the DOH to create a health care proxy registry is an important step. Promoting early advance care planning discussions and completion of health care proxies for all New Yorkers 18 years of age and older complements the thoughtful MOLST discussions and completion of the MOLST for seriously ill patients who might die in the next year. Access to a properly completed health care proxy is vital in completing a MOLST for patients who lack the capacity to make decisions that are well informed using a shared decision making model. It assures that end-of-life decisions are being made by the person the incapacitated patient trusts and is made by known wishes.

Subscribe to the MOLST Update

Submit your email address to receive New York's MOLST Update.
The MOLST Update is a Newsletter dedicated to providing up-to-date information on advance care planning, MOLST and eMOLST.