New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIV - Office for People With Developmental Disabilities › Part 633 - Protection of Individuals Receiving Services in Facilities and Services Operated and/or Certified by OPWDD › Section 633.18 - Procedures governing do not resuscitate (DNR) orders (see glossary)

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Principles of compliance.
(1)
				The regulations contained in this section apply to persons (see glossary) in
				facilities operated or certified by OPWDD.
(2) Nothing in this section shall require
				facilities to expand their existing personnel, training, or equipment to
				provide cardiopulmonary resuscitation (see glossary).
(3) General requirements.
(i) Anyone admitted to a facility shall be
				presumed to consent to the administration of cardiopulmonary resuscitation in
				the event of cardiac or respiratory arrest, unless there is consent to the
				issuance of an order not to resuscitate, hereinafter referred to as a DNR order
				(see glossary) as provided in this section.
(ii) When a person who has a health care
				agent (see glossary) lacks capacity pursuant to section
				633.20(a)(9) 
				of this Part, the agent shall have the rights and authority that a person with
				capacity would have pursuant to this section, subject to the terms of the
				health care proxy, section
				633.20 
				of this Part, and article 29-C of the New York State Public Health Law entitled
				"Health Care Agents and Proxies."
(iii) It is lawful for an attending physician
				(see glossary) to issue a DNR order provided that the order has been issued
				pursuant to the requirements of this section and article 29-B of the New York
				State Public Health Law, entitled, "Orders Not To Resuscitate". The order is to
				be included in writing in the medical portion of a person's clinical record and
				include all the terms and conditions of the order. A DNR order is effective
				upon issuance.
(iv) Issuance of
				orders.
(a) A DNR order may be originally
				issued by:
(1) an attending physician in a
				developmental center (see glossary) for a person located in the developmental
				center;
(2) an attending physician
				in a hospital (see glossary), a psychiatric center, or residential health care
				facility (see glossary) for a patient in the hospital, psychiatric center, or
				residential health care facility pursuant to regulations promulgated by the
				Department of Health.
(b) Nonhospital DNR orders (see glossary) may
				be issued by:
(1) an attending physician in a
				developmental center, to take effect only after departure from the
				developmental center;
(2) an
				attending physician in a hospital, psychiatric center, or residential health
				care facility, to take effect only after discharge from the hospital,
				psychiatric center or residential health care facility;
(3) an attending physician in the community,
				to take effect upon issuance.
(v) Before obtaining the consent of an adult
				person, a health care agent, a surrogate (see glossary) of the person, or a
				parent (see glossary) or legal guardian of a minor (see glossary) to a DNR
				order, an attending physician is to provide to the party giving consent
				information about the person's diagnosis and prognosis, the reasonably
				foreseeable risks and benefits for cardiopulmonary resuscitation for the
				person, and the consequences of a DNR order.
(4) Nonhospital DNR orders.
(i) In addition to the requirements for
				nonhospital DNR orders set forth in this paragraph, all the requirements of
				this section governing DNR orders apply to nonhospital DNR orders, unless other
				provisions are specifically set forth.
(ii) A nonhospital DNR order is to be issued
				in a format acceptable to the Commissioner of the Department of
				Health.
(iii) An attending
				physician who has issued a nonhospital DNR order and who transfers care of a
				person to another physician, is to inform the physician of the order.
(iv) A standard bracelet, developed by the
				Commissioner of the Department of Health, may be worn by a person with a
				nonhospital DNR order to identify that status. However, no one may require a
				person to wear such a bracelet and no one may require a person to wear such a
				bracelet as a condition for honoring a nonhospital DNR order or providing
				health care services.
(v) A
				nonhospital DNR order may be issued:
(a) in a
				developmental center, hospital, psychiatric center, or health care facility, to
				take effect only after departure from such facility;
(b) in the community, to take effect upon
				issuance.
(vi) For each
				adult person for whom a nonhospital DNR order has been issued, the attending
				physician is to review whether the order is still appropriate in light of the
				person's condition each time he or she examines the person, but at least every
				90 days. While the review must occur at least every 90 days, the review need
				not occur more than once every seven days. The attending physician is to record
				the review in the medical portion of the person's clinical record provided,
				however, that a registered nurse who provides care to the person may record the
				review in the record at the direction of the physician. In such case, the
				attending physician is to include a confirmation of the review in the medical
				portion of the person's clinical record within 14 days of such review. The DNR
				order remains in effect even if there is a lapse in the time frame specified
				for the review.
(vii) Any adult
				person, health care agent, surrogate, or parent or legal guardian of a minor,
				who has consented to a nonhospital DNR order may at any time revoke his or her
				consent to the order by any act evidencing a specific intent to revoke such
				consent. Any health care professional (see glossary) informed of a revocation
				of consent to a nonhospital DNR order is to notify the attending physician of
				the revocation. An attending physician who is informed that a nonhospital DNR
				order has been revoked is to record the revocation in the person's medical
				record, cancel the order and make diligent efforts to retrieve the form issuing
				the order and the standard bracelet, if any.
(viii) If a person with a nonhospital DNR
				order relocates to a developmental center, hospital, psychiatric center, or
				residential health care facility, even on a temporary basis, the continuance of
				the order shall be governed by the provisions of paragraph (14) of this
				subdivision, as well as the dispute mediation provisions of paragraph
				(15).
(ix) It shall be lawful for
				staff at facilities, including staff who are designated by policy to provide
				initial emergency medical assistance, to honor nonhospital DNR
				orders.
(x) Staff at facilities
				operated or licensed by OPWDD who are provided with a nonhospital DNR order, or
				who identify the standard bracelet on a person's body, shall comply with the
				terms of such order, provided however, that such staff may disregard the order
				if:
(a) they believe in good faith that
				consent to the order has been revoked or that the order has been canceled;
				or
(b) physical confrontation
				appears likely because family members or others on the scene, excluding staff,
				object to the order.
(xi) No one may be subjected to criminal
				prosecution or civil liability, or be deemed to have engaged in unprofessional
				conduct, for honoring reasonably and in good faith, pursuant to this section, a
				nonhospital DNR order, or for disregarding a nonhospital DNR order pursuant to
				subparagraph (x) of this paragraph, or for other actions taken reasonably and
				in good faith pursuant to this section.
(5) Determination of capacity (see glossary)
				of an adult (see glossary) person to make a decision regarding cardiopulmonary
				resuscitation.
(i) Every adult person shall be
				presumed to have the capacity to make a decision regarding cardiopulmonary
				resuscitation unless determined otherwise pursuant to this paragraph or
				pursuant to a court order. A lack of capacity shall not be presumed from the
				fact that a committee of the property or conservator has been appointed for an
				adult pursuant to article 77 or 78 of the Mental Hygiene Law, or that a
				guardian has been appointed pursuant to article 17-A of the Surrogate's Court
				Procedure Act, or that a guardian was appointed pursuant to article 81 of the
				Mental Health Law, unless the order of the court provides otherwise.
(ii) A determination that an adult person
				lacks capacity is to be made by an attending physician to a reasonable degree
				of medical certainty. The determination is to be made in writing and contain
				such attending physician's opinion regarding the cause and nature of the
				person's incapacity including the extent and probable duration of such
				incapacity. The determination is to be included in the medical portion of a
				person's clinical record and the physician is to obtain a concurring opinion
				confirming an adult person's lack of capacity pursuant to the following:
(a) If an attending physician determines that
				lack of capacity of an adult person is due to a medical condition, at least one
				other physician must concur in that determination. If the person is located in
				a developmental center, hospital, psychiatric center, or residential health
				care facility, the concurring opinion shall be made by a physician authorized
				by the director of that developmental center, hospital, psychiatric center, or
				residential health care facility. The concurring determination is to be made in
				writing after personal examination of the person and is to contain the
				consulting physician's opinion regarding the cause and nature of the person's
				incapacity, including the extent and probable duration of such incapacity. Each
				concurring determination is to be included in the medical portion of a person's
				clinical record.
(b) If an
				attending physician determines that an adult person lacks capacity because of
				mental illness (see glossary), the concurring determination is to be provided
				by a physician certified or eligible to be certified by the American Board of
				Psychiatry and Neurology. The concurring determination is to be made in writing
				after personal examination of the person and is to contain the consulting
				physician's opinion regarding the cause and nature of the person's incapacity,
				including the extent and probable duration of such incapacity. Each concurring
				determination is to be included in the medical portion of a person's clinical
				record.
(c) If an attending
				physician determines that an adult person lacks capacity because of a
				developmental disability (see glossary), the concurring determination is to be
				made in writing after personal examination of the person by a physician or
				psychologist and is to contain his or her opinion regarding the cause and
				nature of the person's incapacity, including the extent and probable duration
				of such incapacity. Each concurring determination is to be included in the
				medical portion of a person's clinical record. Such concurring determination
				must be provided by:
(1) a physician licensed
				in New York State who is presently employed by a developmental center or a DDSO
				and has been so employed for at least one year; or
(2) a psychologist who is presently employed
				by a developmental center or a DDSO and has been so employed for at least one
				year; or
(3) a physician, licensed
				in New York State, employed for a minimum of two years to render care and
				services in a facility; or
(4) a
				psychologist, licensed in New York State, employed for a minimum of two years
				to render care and services in a facility; or
(5) a physician licensed in New York State
				who has had specialized training in developmental disabilities and has had two
				years experience treating those with developmental disabilities; or
(6) a psychologist licensed in New York State
				who has had specialized training in developmental disabilities and has had two
				years experience treating those with developmental disabilities; or
(7) a physician licensed in New York State
				whose name and credentials have been submitted to OPWDD and who has been
				approved by the commissioner of OPWDD to render such a concurring opinion;
				or
(8) a psychologist whose name
				and credentials have been submitted to OPWDD and who has been approved by the
				commissioner of OPWDD to render such a concurring opinion.
(iii) Notice of a determination
				that an adult person lacks capacity is to promptly be given:
(a) to the person, where there is any
				indication of the person's ability to understand the notice, in the means of
				communication normally used with that person, advising him or her that someone
				will be designated to give consent on his or her behalf, together with a copy
				of a statement summarizing the rights, duties and requirements of this section;
				and
(b) to the party on the
				surrogate list (see glossary) highest in order of priority listed; nothing in
				this section precludes or requires notice to more than one party on the
				surrogate list. When the party highest in priority is not reasonably available
				(see glossary), the immediate next party listed in subparagraph (8)(iv) of this
				subdivision is to be notified; and
(c) to the chief executive officer (see
				glossary) of the facility in which the person resides and/or from which the
				person was relocated, as appropriate.
(iv) A determination that a person lacks
				capacity to make a decision regarding a DNR order pursuant to this section
				shall not be construed as a finding that the person lacks capacity for any
				other purpose.
(6)
				Decisionmaking by an adult person with capacity to make a decision regarding
				cardiopulmonary resuscitation.
(i) The consent
				of an adult person with capacity must be obtained prior to issuing a DNR order,
				except as provided in subparagraph (vi) of this paragraph.
(ii) If an adult person has capacity at the
				time the order is to be issued, the consent must be obtained at or about such
				time, notwithstanding any prior oral or written consent.
(iii) An adult person with capacity may
				express a decision to consent to a DNR order as follows:
(a) When an adult person is in a
				developmental center, hospital, psychiatric center, or residential health care
				facility:
(1) in ways normally used by the
				person to communicate, in the presence of at least two witnesses, 18 years of
				age or older, one of whom is a physician at the developmental center, hospital,
				psychiatric center, or residential health care facility and recorded in the
				medical portion of the person's clinical record; or
(2) in writing, dated and signed in the
				presence of at least two witnesses 18 years of age or older who shall also sign
				the decision. The decision shall be included in the medical portion of the
				person's clinical record.
(b) When an adult person is in the community:
(1) to the attending physician in ways
				normally used by the person to communicate; or
(2) in writing, dated and signed in the
				presence of at least two witnesses 18 years of age or older who must also sign
				the decision.
(iv) An attending physician who is provided
				with or informed of a decision pursuant to this paragraph is to record or
				include the decision in the medical portion of the person's clinical record if
				the decision has not been recorded or included, and either:
(a) promptly issue a DNR order or issue an
				order at such time as the conditions, if any, specified in the decision are
				met, and inform the chief executive officer of the facility in which the person
				resides, who shall ensure notification is made to the facility staff
				responsible for the person's care, of the order; or
(b) promptly make his or her objection to the
				issuance of such an order and the reasons therefore known to the person and
				either make all reasonable efforts to arrange for the transfer of the person to
				another physician, if necessary; or promptly submit the matter to the dispute
				mediation system as discussed in paragraph (15) of this subdivision, if
				applicable.
(v) Prior to
				issuing a DNR order, for an adult person who has expressed a decision
				consenting to a DNR order under specified medical conditions, an attending
				physician must make a determination to a reasonable degree of medical
				certainty, that such conditions exist, and include the determination in the
				medical portion of the person's clinical record. An attending physician is to
				notify the person of such determination and his or her intent to issue a DNR
				order.
(vi) In the event that an
				attending physician determines that, to a reasonable degree of medical
				certainty, an adult person who has capacity would suffer immediate and severe
				injury from a discussion of cardiopulmonary resuscitation, and has documented
				this in the medical portion of the person's clinical record, the attending
				physician may issue a DNR order without obtaining the person's consent, but
				only after:
(a) ascertaining the wishes of the
				person to the extent possible without subjecting the person to a risk of
				immediate and severe injury;
(b)
				including the reasons for not consulting the person in the medical portion of
				the person's clinical record; and
(c) obtaining the consent of a health care
				agent or a surrogate pursuant to paragraph (8) of this subdivision. However,
				the consent of a health care agent or a surrogate is not required if the person
				has previously consented to a DNR order pursuant to this paragraph;
(d) for persons in a developmental center,
				hospital, psychiatric center or residential health care facility, consulting
				with and obtaining the written concurrence of another physician selected by the
				director of that developmental center, hospital, psychiatric center, or
				residential health care facility, or selected by a party authorized by the
				director to do so. Such concurrence shall be given after personal examination
				of the person concerning the assessment of immediate and severe injury to the
				person from a decision to use cardiopulmonary resuscitation.
(vii) Where the provisions of
				subparagraph (vi) of this paragraph have been invoked, an attending physician
				reassess, on a regular basis, a person's risk of injury from a decision to use
				cardiopulmonary resuscitation, and is to consult with the person regarding
				resuscitation as soon as the medical basis for not consulting with the person
				no longer exists.
(7)
				Notice of consent.
(i) The chief executive
				office of the facility in which a person resides is to be advised at any time a
				DNR order is issued, whether issued as a nonhospital order or whether issued in
				a developmental center, hospital, psychiatric center or residential health care
				facility. However notification to the chief executive officer of a facility is
				not to delay issuance of a DNR order. If a chief executive officer concludes
				that the person lacks capacity or that issuance of a DNR order may be
				inconsistent with the person's wishes or that the order fails to meet the
				necessary requirements spelled out in this section and if the person is in a
				developmental center, hospital, psychiatric center or residential health care
				facility, the chief executive officer shall submit the matter to the
				appropriate dispute mediation system (see glossary). Otherwise, the chief
				executive officer may seek judicial review in conformance with paragraph (16)
				of this subdivision.
(ii) If a
				person is in a developmental center, notice of a person's consent to a DNR
				order, or of a health care agent's consent to a DNR order, or of a surrogate's
				consent to a DNR order, is also to be given to the director of the
				developmental center in which the person is located at the time the consent was
				given. Such notice shall be given prior to the issuance of a DNR order.
				Notification to the director shall not delay issuance of a DNR order.
(8) Surrogate decisionmaking.
(i) The consent of a health care agent who is
				available and who is authorized to make a decision regarding cardiopulmonary
				resuscitation if a person lacks the capacity to do so must be obtained prior to
				issuing a DNR order. If, there is no such agent, consent of a surrogate acting
				on behalf of an adult person who lacks capacity to make a decision regarding
				cardiopulmonary resuscitation, or on behalf of an adult person for whom consent
				by a surrogate is authorized by subparagraph (8)(iv) of this subdivision must
				be obtained prior to issuing a DNR order except as provided in subparagraph
				(iii) of this paragraph or paragraph (9) of this subdivision.
(ii) A decision regarding cardiopulmonary
				resuscitation by a health care agent on a person's behalf is governed by
				section
				633.20 
				of this Part and article 29-C of the New York State Public Health Law and has
				priority over decisions by any other party except the person or as otherwise
				provided in a health care proxy.
(iii) The consent of a surrogate or a health
				care agent is not required where an adult person, prior to losing capacity to
				consent, had consented to a DNR order pursuant to subparagraph (6)(iii), (iv),
				or (v) of this subdivision.
(iv)
				One party (in the order of priority listed) from the following list, has the
				authority to act as surrogate on behalf of a person, when that person is not
				competent to make a decision and that person has not appointed a health care
				agent. When the party highest in priority listed below is not reasonably
				available, the immediate next party is to be solicited.
(a) a "committee of the person" or a guardian
				appointed pursuant to article 17-A of the Surrogate's Court Procedure Act,
				provided that this clause will not be construed to require the appointment of a
				"committee of the person" or guardian for the purpose of making the
				resuscitation decision;
(b) the
				spouse;
(c) a son or daughter who
				is 18 years of age or older;
(d) a
				parent;
(e) a brother or sister who
				is 18 years of age or older; and
(f) a close friend (see glossary).
(v) After a surrogate has been
				identified, the name of such party is to be included in the medical portion of
				a person's clinical record.
(vi)
				The unavailability of prior parties or the unwillingness to make a decision by
				prior parties on the surrogate's list is to be documented in the medical
				portion of a person's clinical record.
(vii) A determination that a surrogate is not
				competent to act as surrogate is to be documented with the reasons therefore in
				the medical portion of a person's clinical record and may be the subject of an
				appeal to the dispute mediation system by a surrogate, if a person is in a
				developmental center, hospital, psychiatric center, or residential health care
				facility.
(viii) A surrogate is to
				make a decision regarding cardiopulmonary resuscitation on the basis of the
				adult person's wishes including a consideration of the person's religious and
				moral beliefs, or, if the person's wishes are unknown and cannot be
				ascertained, on the basis of the person's best interests.
(ix) Notwithstanding any law to the contrary,
				a surrogate is to have the same right as a person to receive medical
				information and the medical portion of the clinical record.
(x) A surrogate may consent to a DNR order on
				behalf of an adult person only if there has been a determination by an
				attending physician with the concurrence of another physician, given only after
				personal examination of the person that, to a reasonable degree of medical
				certainty:
(a) the person has a terminal
				condition (see glossary); or
(b)
				the person is permanently unconscious; or
(c) resuscitation would be medically futile
				(see glossary); or
(d)
				resuscitation would impose an extraordinary burden on the person in light of
				the person's medical condition and the expected outcome of resuscitation for
				the person.
(xi) For the
				purpose of subparagraph (x) of this paragraph, if the person is in a
				developmental center, the attending physician shall seek the concurrence of
				another physician selected by the director of the developmental
				center.
(xii) Each determination
				and a brief statement of the reasons therefor are to be included in the medical
				portion of a person's clinical record.
(xiii) A surrogate is to express a decision
				consenting to a DNR order:
(a) in writing,
				dated, and signed in the presence of one witness 18 years of age or older who
				is to sign the decision; or
(b) if
				the person is in a developmental center, hospital, psychiatric center, or
				residential health care facility, such decision may be made orally, to two
				parties 18 years of age or older, one of whom is a physician affiliated with
				that developmental center, hospital, psychiatric center, or residential health
				care facility. Any such decision is to be recorded in the medical portion of a
				person's clinical record.
(xiv) A health care agent may consent orally,
				to the attending physician, to a nonhospital DNR order.
(xv) In a developmental center, hospital,
				psychiatric center or residential health care facility, an attending physician
				who is provided with the decision of a surrogate shall include the decision in
				the medical portion of a person's clinical record, and, if the surrogate has
				consented to the issuance of a DNR order, shall either:
(a) promptly issue a DNR order and ensure
				that the developmental center staff responsible for the person's care are
				informed of the order; or
(b)
				promptly make the attending physician's objection to the issuance of such an
				order known to the surrogate and either make all reasonable efforts to arrange
				for the transfer of the person to another physician, if necessary, or promptly
				refer the matter to the dispute mediation system.
(xvi) If a person is in a developmental
				center, hospital, psychiatric center or residential health care facility,
				notice of a surrogate's consent to a DNR order is to be given to the director
				of the developmental center, hospital, psychiatric center, or residential
				health care facility in which a person is located at the time the consent was
				given, as well as to the chief executive officer of the residential facility in
				which a person resides at the time the consent is given or from which the
				person was relocated, if applicable. Such notice is to be given prior to the
				issuance pursuant to this section of a DNR order. Notification to a director of
				a developmental center, hospital, psychiatric center or residential health care
				facility and/or the chief executive officer of the facility in which a person
				resides or from which a person has been relocated, if applicable, will not
				delay issuance of a DNR order. If a director of a developmental center or other
				chief executive officer, if applicable, concludes that a person has capacity or
				that issuance of a DNR order is otherwise inconsistent with this section, the
				director at the developmental center and/or other chief executive officer shall
				submit the matter to the appropriate dispute mediation system.
(xvii) If a person is in a developmental
				center, hospital, psychiatric center, or residential health care facility, and
				an attending physician has actual notice of opposition to a surrogate's consent
				to a DNR order by any party on the surrogate list, the physician is to submit
				the matter to the appropriate dispute mediation system and such order must not
				be issued or must be revoked in accordance with the provisions of paragraph
				(12) of this subdivision.
(xviii)
				For persons residing in facilities other than developmental centers, notice of
				a surrogate's consent to a DNR order is to be given to the chief executive
				officer of the facility in which the person resides. Such notice is to be given
				prior to the issuance of the DNR order, pursuant to this section. Notification
				to a chief executive officer is not to delay issuance of a DNR order. If a
				person is in a developmental center, hospital, psychiatric center, or
				residential health care facility, and a chief executive officer concludes that
				a person has capacity or that issuance of a DNR order is otherwise inconsistent
				with this section, the chief executive officer shall submit the matter to the
				appropriate dispute mediation system. Otherwise, the chief executive officer
				may seek judicial review in conformance with paragraph (16) of this
				subdivision.
(xix) If a surrogate
				has consented to a DNR order, notice of the surrogate's decision must be given
				to the person where there is any indication of the person's ability to
				comprehend such notice, except if a determination has been made pursuant to
				subparagraph (6)(vi) of this subdivision. If the person objects, a DNR order
				shall not be issued.
(9)
				Decisionmaking on behalf of an adult person without capacity for whom no
				surrogate is available and for whom no health care agent has been appointed.
(i) If a surrogate is:
(a) not reasonably available; or
(b) not willing to make a decision regarding
				cardiopulmonary resuscitation; or
(c) not competent to make a decision
				regarding cardiopulmonary resuscitation; and
(ii) If a person lacks capacity to make a
				decision regarding cardiopulmonary resuscitation or if a person, when
				capacitated, did not previously consent to the issuance of a DNR order, then an
				attending physician:
(a) may issue a DNR
				order, provided that the attending physician determines, and documents in the
				medical portion of a person's clinical record, that to a reasonable degree of
				medical certainty, resuscitation would be medically futile, and another
				physician, after personal examination of the person, reviews and concurs in
				writing with such determination (if the person is located in a developmental
				center, hospital, psychiatric center, or residential health care facility, the
				second physician shall be a physician authorized by the director of that
				developmental center, hospital, psychiatric center, or residential health care
				facility); or
(b) issues a DNR
				order provided that a court has granted a judgment directing the issuance of
				such an order; and
(c) documents in
				the medical portion of a person's clinical record that no surrogate was
				available, competent or willing to make a decision regarding cardiopulmonary
				resuscitation for the person.
(iii) For a person who is in a developmental
				center, hospital, psychiatric center, or residential health care facility,
				prior to issuance of a DNR order pursuant to subparagraph (ii) of this
				paragraph, notice of such order is to be given to the director of the
				developmental center, hospital, psychiatric center, or residential health care
				facility in which the person is located at the time the decision to issue a DNR
				order is made, and/or to the chief executive officer of the residential
				facility from which the person was relocated, if applicable. Notification to
				the director and/or other chief executive officer is not to delay issuance of a
				DNR order. If a director and/or other chief executive officer concludes that a
				person has capacity or that issuance of a DNR order is otherwise inconsistent
				with this section, the director and/or other chief executive officer shall
				submit the matter to the appropriate dispute mediation system.
(iv) For a person residing in a facility
				other than a developmental center, notice is to be given to the chief executive
				officer of that facility. Notification to the chief executive officer is not to
				delay issuance of a DNR order.
(v)
				Notwithstanding any other provision of this paragraph, where a decision to
				consent to a DNR order has been made, notice of the decision is to be given to
				the person where there is any indication of the person's ability to comprehend
				such notice, except where a determination has been made pursuant to paragraph
				(6) of this subdivision. If the person objects, a DNR order is not to be
				issued.
(10)
				Decisionmaking on behalf of a person who is a minor (see glossary).
(i) An attending physician, in consultation
				with a minor's parent or legal guardian, is to determine whether a minor has
				the capacity to make a decision regarding resuscitation.
(ii) The consent of a minor's parent or legal
				guardian and the consent of the minor, if the minor has capacity, must be
				obtained prior to issuing a DNR order for the minor.
(iii) A parent or legal guardian may consent
				to a DNR order on behalf of a minor only if there has been a written
				determination by the attending physician, with the written concurrence of
				another physician, given after personal examination of the minor, that, to a
				reasonable degree of medical certainty, the minor suffers from one of the
				medical conditions set forth in subparagraph (8)(x) of this subdivision. If the
				person is in a developmental center, the concurring opinion shall be given by a
				physician authoried by the director of the developmental center. Each
				determination is to be documented in the medical portion of a minor's clinical
				record.
(iv) Where an attending
				physician has reason to believe that there is another parent or a noncustodial
				parent who has not been informed of a decision to issue a DNR order for the
				minor, the attending physician, or someone acting on behalf of the attending
				physician, is to make reasonable efforts to determine if the uninformed parent
				or noncustodial parent has maintained substantial and continuous contact with
				the minor and, if so, is to make diligent efforts to notify that parent or
				noncustodial parent of the decision prior to issuing the order.
(v) For a minor who is located in a
				developmental center, hospital, psychiatric center, or residential health care
				facility, notice of a decision to issue a DNR order for a minor is to be given
				to the director of the developmental center, hospital, psychiatric center, or
				residential health care facility in which the minor is located at the time the
				consent is given, and/or to the chief executive officer of the residential
				facility from which the minor was relocated, if applicable. Such notice is to
				be given prior to issuance of a DNR order. Notification to a director or other
				chief executive officer is not to delay issuance of a DNR order. If a director
				or other chief executive officer concludes that issuance of a DNR order is
				inconsistent with this section, the director or other chief executive officer
				is to submit the matter to the appropriate dispute mediation system.
(vi) A parent or legal guardian of a person
				who is a minor, in making a decision regarding cardiopulmonary resuscitation,
				is to consider the minor's wishes, including a consideration of the minor's
				religious and moral beliefs, and is to express a decision consenting to
				issuance of a DNR order:
(a) in writing,
				dated, and signed in the presence of one witness who is 18 years of age or
				older who must also sign the decision; or
(b) if a person is in a developmental center,
				hospital, psychiatric center, or residential health care facility, such
				decision may be made orally, to two parties 18 years of age or older, one of
				whom is a physician affiliated with that developmental center, hospital,
				psychiatric center, or residential health care facility in which the person is
				being treated. Any such decision shall be recorded in the medical portion of a
				person's clinical record.
(vii) An attending physician who is provided
				with the decision of a minor's parent or legal guardian, expressed pursuant to
				this paragraph, and of the minor if the minor has capacity, is to include such
				decision or decisions in the medical portion of a minor's clinical
				record.
(viii) If a minor is in a
				developmental center, hospital, psychiatric center, or residential health care
				facility and an attending physician has actual notice of the opposition of a
				parent, noncustodial parent, or legal guardian of a minor to consent by another
				parent to a DNR order for a minor, the physician is to submit the matter to the
				appropriate dispute mediation system and such order cannot be issued or must be
				revoked in accordance with the provisions of paragraph (12) of this
				subdivision.
(ix) If a parent or
				legal guardian of a minor has consented to a DNR order, notice of the parent or
				legal guardian's decision is to be given to the minor where there is any
				indication of the minor's ability to comprehend such notice, except if a
				determination has been made pursuant to subparagraph (6)(vi) of this
				subdivision. If the minor objects, a DNR order cannot be issued.
(11) Medical treatment. Consent to
				the issuance of a DNR order does not constitute consent to withhold or withdraw
				medical treatment other than cardiopulmonary resuscitation.
(12) Revocation of consent.
(i) A person, including a minor, or a health
				care agent may, at any time, revoke his or her consent to a DNR order by any
				act or communication evidencing a specific intent to revoke such consent. Such
				act or communication may be, but is not limited to, an oral or written
				declaration to a physician, or to a member of the nursing staff or other staff
				members at a facility certified or operated by OPWDD; or, when located in a
				hospital, psychiatric center, or residential health care facility, to a
				physician or member of the nursing staff there.
(ii) Any surrogate, parent, or legal guardian
				may at any time revoke his or her consent to a DNR order by:
(a) notifying a physician or member of the
				nursing staff, of the revocation of consent in writing, dated and signed;
				or
(b) orally notifying the
				attending physician in the presence of a witness 18 years of age or
				older.
(iii) If, at any
				time, a person objects, by any means he or she typically uses to communicate,
				to a DNR order authorized by a surrogate or health care agent, said DNR order
				must either not be issued or must be withdrawn.
(iv) Any physician who is informed of or
				provided with a revocation of consent pursuant to this paragraph must
				immediately include the revocation in the medical portion of a person's
				clinical record, cancel the order, and notify the chief executive officer of
				the facility where the person resides, who shall ensure that notification is
				made to staff responsible for the person's care, of the revocation and
				cancellation. If the order is a nonhospital DNR order, the physician is to make
				diligent efforts to retrieve the form issuing the order, and the standard
				bracelet, if any.
(v) Any member of
				the nursing staff or other facility staff with responsibilities for a person,
				who is informed of or provided with a revocation of consent, except pursuant to
				subparagraph (iv) of this paragraph, shall immediately notify a physician of
				such revocation.
(13)
				Physician review.
(i) For each person for whom
				a DNR order has been issued, an attending physician is to review the person's
				clinical record and medical condition to determine if the order is still
				appropriate in light of the person's condition and is to indicate in the
				medical portion of the person's clinical record that the order has been
				reviewed:
(a) for a person located in a
				developmental center, at least every seven days;
(b) for each person for whom a nonhospital
				DNR order has been issued, the attending physician is to review whether the
				order is still appropriate in light of the person's condition each time he or
				she examines the person, whether in a hospital or elsewhere, but at least every
				90 days, provided that the review need not occur more than once every seven
				days. The attending physician is to record the review in the medical portion of
				a person's clinical record provided, however, that a registered nurse who
				provides direct care to the person may record the review in the clinical record
				at the direction of the physician. In such case, the attending physician is to
				include a confirmation of the review in the medical portion of a person's
				clinical record within 14 days of such review.
(ii) Failure to comply with subparagraph (i)
				of this paragraph does not render a DNR order invalid.
(iii) If an attending physician determines at
				any time that a DNR order is no longer appropriate because a person's medical
				condition has improved, the physician is to immediately notify the party who
				consented to the order. Except as provided in subparagraph (iv) of this
				paragraph, if such party declines to revoke consent to the order, the physician
				is to promptly:
(a) make reasonable efforts to
				arrange for the transfer of care of the person to another physician, if
				necessary; or
(b) submit the matter
				to the dispute mediation system, if appropriate.
(iv) If a DNR order was entered upon the
				consent of a surrogate, parent, or legal guardian and the attending physician
				who issued the order, or, if unavailable, another attending physician, at any
				time determines that a person does not suffer from one of the medical
				conditions set forth in subparagraph (8)(x) of this subdivision, the attending
				physician shall immediately include such determination in the person's record,
				cancel the order, and notify the person who consented to the order and the
				chief executive officer of the facility where the person resides, who shall
				ensure that notification is made to all staff responsible for the person's care
				of the cancellation.
(v) If a DNR
				order was entered upon the consent of a surrogate and the person at any time
				gains or regains capacity, the attending physician who issued the order, or, if
				unavailable, another attending physician, is to immediately cancel the order
				and notify the party who consented to the order and the chief executive officer
				of the facility where the person resides, who shall ensure that notification is
				made to all staff directly responsible for the person's care of the
				cancellation.
(14)
				Relocation.
(i) If a person for whom a DNR
				order has been issued is to be relocated to a developmental center, hospital,
				psychiatric center, or residential health care facility, the ambulance
				personnel, if such are involved, and the receiving developmental center,
				hospital, psychiatric center, or residential health care facility shall be
				advised of the order.
(ii) The
				order remains effective, unless revoked pursuant to this section, until the
				attending physician first examines the transferred person, whereupon the
				attending physician must either:
(a) issue an
				order continuing the prior DNR order, and such order may be issued without
				obtaining further consent from the person, surrogate or parent pursuant to this
				section; or
(b) cancel the DNR
				order, provided the attending physician immediately notifies the person who
				consented to the order and, if in a developmental center, ensures that
				notification is made to the developmental center staff responsible for the
				person's care of the cancellation. Such cancellation does not preclude the
				entry of a new order pursuant to this section.
(15) Dispute mediation system (DMS) at
				developmental centers when a person is located at a developmental center or
				small residential unit (SRU).
(i)
(i) Dispute mediation systems are available
				at developmental centers, hospitals, psychiatric centers, and residential
				health care facilities licensed pursuant to article 28 of the Public Health
				Law. Dispute mediation may apply to a nonhospital DNR order only if the person
				is located in one of the aforementioned facilities at the time the dispute is
				brought to the attention of its staff.
(ii) The requirements below for dispute
				mediation only apply to DNR orders that are effective while a person is located
				in a developmental center.
(iii)
				Each developmental center shall establish a dispute mediation system for the
				purpose of mediating any disputes related to DNR orders for persons located in
				the developmental center, including disputes regarding:
(a) determination of a person's capacity to
				make a decision regarding cardiopulmonary resuscitation;
(b) issuance of a DNR order; or
(c) determination of a surrogate's competence
				pursuant to subparagraph (8)(vii) of this subdivision.
(iv) Only the dispute mediation system
				established for the developmental center in which a person is located at the
				time of a dispute shall have the authority to mediate that dispute.
(v) The dispute mediation system shall not
				have the authority to make a determination on whether a DNR order shall be
				issued.
(vi) The dispute mediation
				system shall attempt to resolve the dispute between the parties and aid the
				parties in reaching a mutually agreeable decision.
(vii) The dispute mediation system shall be
				described in writing.
(viii) A
				developmental center may utilize already existing mechanisms for its dispute
				mediation system membership, or may create a body specifically for this
				purpose.
(ix) If a dispute involves
				a person deemed to lack capacity pursuant to either clause
				(5)(ii)(
b
) or (
c
) of this subdivision, the
				membership of the dispute mediation system must include:
(a) a physician qualified to give a
				concurring determination regarding capacity pursuant to clause
				(5)(ii)(
b
) or (
c
) of this subdivision,
				whichever is applicable; or
(b) a
				family member or a "guardian of the person" of any person with a mental illness
				or developmental disability of the same or similar nature.
(x) No relative, correspondent, surrogate or
				potential surrogate, or any party involved in any decisionmaking process or
				procedure that resulted in the determination of capacity or in the issuance of
				a DNR order for a person whose case is in dispute may serve as a member of the
				dispute mediation system reviewing that case.
(xi) The dispute mediation system is
				authorized to mediate disputes regarding the issuance of a DNR order and
				disputes regarding determination of capacity arising under this section:
(a) between a person and an attending
				physician or the developmental center caring for the person; or
(b) between a person who is a minor and an
				attending physician or the developmental center caring for the minor; or
				between a minor and the minor's parent or legal guardian; or
(c) among an attending physician, a parent, a
				noncustodial parent, a legal guardian, anyone on the surrogate list, or the
				developmental center, or the chief executive officer of the facility from which
				the person was relocated.
(xii) Upon submission of a dispute regarding
				the issuance of a DNR order to the dispute mediation system, a DNR order cannot
				be issued, or must be revoked and may not be reissued until:
(a) the dispute has been resolved or the
				dispute mediation system has concluded its efforts to resolve the dispute;
				or
(b) 72 hours have elapsed from
				the time of submission of the dispute, whichever shall occur first;
				or
(c) the 72-hour period shall
				begin upon submission, by any authorized party, either orally or in writing, of
				an objection to the issuance of a DNR order to any member of the developmental
				center's dispute mediation system.
(xiii) If a dispute between a person
				expressing a decision consenting to a DNR order and an attending physician or
				the developmental center that is caring for the person is submitted to the
				dispute mediation system and either the dispute mediation system has concluded
				its efforts to mediate the dispute without resolution; or 72 hours have elapsed
				from the time of submission without resolution of the dispute, whichever shall
				occur first, the attending physician is to either:
(a) promptly issue a DNR order or issue the
				order at such time as the conditions, if any, specified in the decision are
				met, and inform the developmental center staff responsible for the person's
				care of the issuance of the order; or
(b) promptly arrange for the transfer of the
				person to another physician.
(xiv) If any other dispute between parties
				listed in subparagraph (x) of this paragraph is submitted to the dispute
				mediation system, and the dispute mediation system has concluded its efforts to
				mediate the dispute without resolution; or 72 hours have elapsed from the time
				of submission without resolution of the dispute, whichever occurs first, an
				attending physician may:
(a) reissue the
				original order; or
(b) refuse to
				reissue the original order and inform the disputants of their right to judicial
				review as provided below in paragraph (16) of this subdivision.
(16)
				Judicial review.
(i) An adult person; an
				attending physician; a parent, non-custodial parent, or a legal guardian of a
				person who is a minor; any party on the surrogate list; the director of the
				developmental center that is caring for a person; and, if the person is in or
				was moved from a residential facility, the chief executive officer of that
				facility, may commence a special proceeding pursuant to article 4 of the Civil
				Practice Law and Rules, in a court of competent jurisdiction, with respect to
				any dispute arising under this section, except that the decision of any person
				refusing to consent to or objecting to the issuance of a DNR order may not be
				subjected to judicial review.
(ii)
				In any proceeding brought challenging a decision regarding the issuance of a
				DNR order on the ground that the decision is contrary to a person's wishes or
				best interests, the party or entity challenging the decision must show by clear
				and convincing evidence that the decision is contrary to the person's wishes
				including consideration of the person's religious and moral beliefs, or, in the
				absence of evidence of the person's wishes, the decision is contrary to the
				person's best interests.
(iii) In
				any other proceeding brought pursuant to this paragraph, the court will make
				its determination based upon the applicable substantive standards and
				procedures set forth in this section, and article 29-B of the Public Health
				Law.
(iv) In any proceeding brought
				pursuant to this paragraph, the court may issue an order, pursuant to the
				standards applicable to the issuance of a temporary restraining order according
				to section 6313  of the Civil Practice Law and Rules, which will suspend the DNR
				order to permit review of the matter by the court.
(v) Where a party or entity has invoked the
				dispute mediation system, no such judicial proceeding can be commenced until
				the dispute mediation system has concluded its efforts to resolve the dispute
				or 72 hours have elapsed from the submission of the dispute to the dispute
				mediation system, whichever shall occur first. However, a person who is or
				would be the subject of a DNR order may commence an action for relief with
				respect to any dispute under this section at any time. Further, the Department
				of Health, OPWDD, or any other duly authorized State agency may commence an
				action or proceeding to enjoin a violation of this section at any
				time.
(17) Judicially
				approved DNR order.
(i) If no surrogate is
				reasonably available, willing, or competent to make a decision regarding
				issuance of a DNR order on behalf of an adult person who lacks capacity and who
				has not previously expressed a decision regarding cardiopulmonary resuscitation
				pursuant to this Part, only an attending physician or director of a
				developmental center, hospital, psychiatric center, or residential health care
				facility may commence a special proceeding pursuant to article 4 of the Civil
				Practice Law and Rules, in a court of competent jurisdiction, for a judgment
				directing the physician to issue a DNR order where the person:
(a) has a terminal condition;
(b) is permanently unconcious; or
(c) resuscitation would impose an
				extraordinary burden on the person in light of the person's medical condition
				and where the expected outcome of resuscitation for the person, and issuance of
				a DNR order is consistent with the person's wishes including a consideration of
				the person's religious and moral beliefs; or in the absence of evidence of the
				person's wishes, the person's best interests.
(ii) Nothing in this section shall be
				construed to preclude a court of competent jurisdiction from approving the
				issuance of a DNR order under circumstances other than those under which such
				an order may be issued pursuant to this section and article 29-B of the Public
				Health Law.
(18)
				Immunity.
(i) No party shall be subject to
				criminal prosecution, civil liability or be deemed to have engaged in
				unprofessional conduct:
(a) for carrying out,
				in good faith and pursuant to this section, a decision regarding
				cardiopulmonary resuscitation or for any action taken in compliance with the
				requirements set forth in this section;
(b) for providing cardiopulmonary
				resuscitation to a person for whom a DNR order has been issued, provided that
				the party:
(1) reasonably and in good faith
				was unaware of the issuance of a DNR order; or
(2) reasonably and in good faith believed
				that the DNR order was revoked or canceled; or
(3) reasonably believed, in the case of a
				nonhospital DNR order, that physical confrontation appeared likely because
				family members or others at the scene, excluding facility staff, objected to
				the order.
(ii) No party shall be subjected to criminal
				prosecution or civil liability for consenting or declining to consent in good
				faith, on behalf of a person, to the issuance of a DNR order pursuant to this
				section.
(iii) No party shall be
				subjected to criminal prosecution or civil liability or be deemed to have
				engaged in unprofessional conduct for acts performed in good faith as a
				mediator in the dispute mediation system established by this section.
(19) Responsibilities of chief
				executive officers:
(i) ensuring that each
				member of the facility's staff involved in the provision of care is trained in
				the requirements governing DNR orders; and
(ii) ensuring that persons admitted to
				facilities and their families are advised of their rights regarding DNR
				orders;
(iii) working, to the
				extent practicable, with attending physicians to ensure that appropriate
				notifications are given to the facility, as required by this section and by
				article 29-B of the Public Health Law.