There are multiple laws that govern advance care planning and end-of-life medical decision making regarding life-sustaining treatment in New York State. New York Public Health Law (NYSPHL) is based on the nationally recommended ethical framework for end-of-life medical decisions.
Information about the specific laws and regulations including DNR Law, Health Care Proxy Law, Family Health Care Decisions Act and the Surrogate Court Procedure’s Act (SCPA) §1750-b law are all available in the Ethics & Laws section.
In contrast, this area of the website is dedicated to the process clinicians use to honor the ethical framework and legal requirements for end-of-life discussions and MOLST completion. To ensure physicians, nurse practitioners, physician assistants, and other clinicians engaged in thoughtful MOLST discussions do so within scope of practice and consistently comply with NYSPHL, the New York State Department of Health (NYSDOH) developed MOLST Checklists for Adults and Children. To assist physicians, nurse practitioners, and physician assistants who want to correctly document the information required by the laws and Checklists, MOLST Chart Documentation Forms have also been developed to accompany them. While using the Chart Documentation Forms or Checklists is not mandatory, the content captured on them is mandatory and must be otherwise documented in the medical record.
Lastly, while this website is dedicated to MOLST, it is important to understand that even if a Do Not Resuscitate (DNR) or Do Not Intubate (DNI) order, or any other order to withhold/withdraw life-sustaining treatment is written in a medical chart, or a non-hospital DNR form is completed, the exact same process and checklists must be followed and the same ethical standards and legal requirements apply. While FHCDA applies to hospitals, nursing homes and hospice, the legislated community pilot that tested MOLST use in the community (2005-2008) permits EMS to follow DNR and DNI in the community and as a result permits a FHCDA Surrogate to complete DNR and DNI orders for persons in the community who lack the ability to make decisions and do not have a health care agent.
There are seven Checklists – five are for adults, one is for children, and one is for patients who have developmental disabilities that are so significant that they cannot make their own medical decisions or complete a health care proxy (this final checklist was created by OPWDD and must be attached to the completed MOLST).
The correct Checklist for the clinical scenario is driven primarily by three questions:
| Checklist Name | Adult or Child? | Is there a Health Care Proxy completed? | Can the patient make their own medical decisions? | Who is making the decisions? | Where is the decision being made? |
|---|---|---|---|---|---|
| Checklist 1 | Adult | Yes (every person 18+ should complete a health care proxy if they are able to do so) | Yes | The patient | Any setting |
| Checklist 2 | Adult | Yes | No | The health care agent named on the health care proxy | Any setting |
| Checklist 3 | Adult | No | No | Public Health Law Surrogate designated in FHCDA | Only in a hospital, nursing home, or hospice |
| Checklist 4 | Adult | No | No | Two physicians, nurse practitioners, or beginning June 17, 2020, physician assistants as designated in FHCDA (only if no other FHCDA surrogate is available) | Only in a hospital, nursing home, or hospice |
| Checklist 5 | Adult | No | No | A FHCDA Surrogate can make DNR and DNI decisions; "clear & convincing evidence" is needed for other medical orders. | Community (not a hospital or nursing home) |
| Checklist for Minor Patients | Child Note: if they are emancipated, married, or have children of their own they should be treated as an adult | No | No, but if the child has the ability to understand medical decisions they should be part of the discussion | Parents or guardians | Any setting |
| OPWDD Checklist | Adult or Child with Developmental Disabilities who cannot make their own medical decisions or complete a health care proxy | No | No | A Surrogate as designated in SCPA § 1750-b | Any setting |
The pages in this section will address these checklists in more depth in three major categories: adults, children, and patients with developmental disabilities who lack capacity and can’t complete a health care proxy. There is also a special section on the authority of a health care agent or a surrogate that addresses what agents/surrogates can or cannot do when they step into the patient’s shoes to make decisions.
It’s important to recognize that there are medical standards and complex legal requirements beyond capacity determination in NYSPHL as outlined in the MOLST Checklists that are not and cannot be fully captured in the table above. These can only be understood by reading and understanding each MOLST Checklist and the laws that drive them. eMOLST, a free public health service and web-based system used for MOLST completion, will capture the correct logic and documentation required for all of the Checklists and any decision to withhold/withdraw life-sustaining treatment in New York. Since eMOLST also serves as the registry for NYS, the MOLST process and medical orders completed in eMOLST are automatically part of the eMOLST registry.
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The MOLST Update is a Newsletter dedicated to providing up-to-date information on advance care planning, MOLST and eMOLST.