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Authority of Physician Assistants as of June 17, 2020

As a result of legislation signed by Governor Cuomo in 2019, beginning June 17, 2020, a physician assistant can exercise substantially the same authority as an attending nurse practitioner under current NYS law. Physician assistants will have the authority to determine patient incapacity and to write do-not-resuscitate (DNR) and other orders to withhold and/or withdraw life-sustaining treatment in accordance to public health law.

This new law will impact the Medical Orders for Life Sustaining Treatment (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 physician assistants with this legislation. We are working with the Department of Health to align the MOLST documents with the new laws.

This new law does not amend the Surrogate Court Procedures Act (SCPA) 1750-b, which relates to individuals with developmental disabilities.

Physician Assistants and Capacity Determination

The following table clarifies New York State Public Health law and the physician assistant’s authority to do capacity and concurrent capacity determination.

This table reflects the new law that will be in effect June 17, 2020.

PurposeInitial DeterminationConcurring DeterminationExplanation
To empower a health care agentYes, as of June 17, 2020.Yes, as of June 17, 2020.As a result of the 2019 amendment to the Health Care Proxy Law the determination of incapacity can be by the attending practitioner (a physician, nurse practitioner or physician assistant).
In life-sustaining treatment cases the attending practitioner must consult with another physician, nurse practitioner or physician assistant.
This means PAs can determine incapacity or provide concurring determinations of incapacity. In cases where the patient lacks capacity due to mental illness a psychiatrist must be the concurring.
To empower a FHCDA surrogateYes, as of June 17, 2020.YesThe FHCDA provides that the determination of incapacity must be by the “attending practitioner” (physician, nurse practitioner or physician assistant).
In life-sustaining treatment cases there must be a concurring determination by a “health or social services practitioner” which also includes a PA.
This means the FHCDA allows PAs to determine incapacity or provide the required concurring determination. In cases where the patient lacks capacity due to mental illness a psychiatrist must be the concurring.
To empower a § SCPA 1750-b surrogate (decisions for patients with intellectual/developmental disabilities who lack capacity to make medical decisions and lack capacity to complete a health care proxy)NoNo§ SCPA 1750-b has not been changed. In life-sustaining treatment cases the “attending physician” must determine incapacity.

The attending physician must consult with another physician or licensed psychologist. Either the attending or the consulting clinician must meet special qualifications related to the treatment of people with intellectual or developmental disabilities. 1750-b does not allow a PA to determine incapacity or provide the required consult.

Physician Assistants 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 New York State Public Health law and the physician assistant’s authority to participate in the MOLST process and sign MOLST orders.

This table reflects the new law that will be in effect June 17, 2020.

Decision-MakerCan PA Sign the MOLST? Explanation
PatientYes, as of June 17, 2020Falls under PA’s scope of practice. No limitation. PA can write the order.
Health Care AgentYes, as of June 17, 2020The Health Care Proxy Law requires the “health care provider” to honor decisions by the agent.
“Health care provider” would include a PA. PA can write the order.
FHCDA surrogateYes, as of June 17, 2020Updates to the FHCDA in 2019 specified that the “attending practitioner” must implement the FHCDA Surrogate’s decision.
The “attending practitioner” includes a physician. nurse practitioner or physician assistant. As of June 17, 2020, the PA can write the order.
§ SCPA 1750-b surrogate (decisions for patients with intellectual/developmental disabilities who lack capacity to make medical decisions and lack capacity to complete a health care proxy)No§ SCPA 1750-b requires that it is the “attending physician” who must write the order. The 2019 PA bill did not change this.

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The MOLST Update is a Newsletter dedicated to providing up-to-date information on advance care planning, MOLST and eMOLST.