§ 2994-c. Determination of incapacity. 1. Presumption of capacity. For\npurposes of this article, every adult shall be presumed to have\ndecision-making capacity unless determined otherwise pursuant to this\nsection or pursuant to court order, or unless a guardian is authorized\nto decide about health care for the adult pursuant to article eighty-one\nof the mental hygiene law.\n 2. Initial determination by attending practitioner. An attending\npractitioner shall make an initial determination that an adult patient\nlacks decision-making capacity to a reasonable degree of medical\ncertainty. Such determination shall include an assessment of the cause\nand extent of the patient's incapacity and the likelihood that the\npatient will regain decision-making capacity.\n 3. Concurring determinations. (a) An initial determination that a\npatient lacks decision-making capacity shall be subject to a concurring\ndetermination, independently made, where required by this subdivision. A\nconcurring determination shall include an assessment of the cause and\nextent of the patient's incapacity and the likelihood that the patient\nwill regain decision-making capacity, and shall be included in the\npatient's medical record. Hospitals shall adopt written policies\nidentifying the training and credentials of health or social services\npractitioners qualified to provide concurring determinations of\nincapacity.\n (b) (i) In a residential health care facility, a health or social\nservices practitioner employed by or otherwise formally affiliated with\nthe facility must independently determine whether an adult patient lacks\ndecision-making capacity.\n (ii) In a general hospital a health or social services practitioner\nemployed by or otherwise formally affiliated with the facility must\nindependently determine whether an adult patient lacks decision-making\ncapacity if the surrogate's decision concerns the withdrawal or\nwithholding of life-sustaining treatment.\n (iii) With respect to decisions regarding hospice care for a patient\nin a general hospital or residential health care facility, the health or\nsocial services practitioner must be employed by or otherwise formally\naffiliated with the general hospital or residential health care\nfacility.\n (c) (i) If the attending practitioner makes an initial determination\nthat a patient lacks decision-making capacity because of mental illness,\neither such physician must have the following qualifications, or another\nphysician with the following qualifications must independently determine\nwhether the patient lacks decision-making capacity: a physician licensed\nto practice medicine in New York state, who is a diplomate or eligible\nto be certified by the American Board of Psychiatry and Neurology or who\nis certified by the American Osteopathic Board of Neurology and\nPsychiatry or is eligible to be certified by that board. A record of\nsuch consultation shall be included in the patient's medical record.\n (ii) If the attending practitioner makes an initial determination that\na patient lacks decision-making capacity because of a developmental\ndisability, either such physician, nurse practitioner or physician\nassistant must have the following qualifications, or another\nprofessional with the following qualifications must independently\ndetermine whether the patient lacks decision-making capacity: a\nphysician or clinical psychologist who either is employed by a\ndevelopmental disabilities services office named in section 13.17 of the\nmental hygiene law, or who has been employed for a minimum of two years\nto render care and service in a facility operated or licensed by the\noffice for people with developmental disabilities, or has been approved\nby the commissioner of developmental disabilities in accordance with\nregulations promulgated by such commissioner. Such regulations shall\nrequire that a physician or clinical psychologist possess specialized\ntraining or three years experience in
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