Dear Chief Executive Officer Letter: Advise Facilities of Recently-Enacted Laws that Directly Impact the Operations of Hospitals in New York State, January 11, 2011

Re: Legislation

January 11, 2011

Dear Chief Executive Officer:

This letter is written to advise facilities of recently-enacted laws that directly impact the operations of hospitals in New York State. A brief summary of each law is provided, along with resources to assist providers in assuring compliance:

Breast Reconstruction Act

Effective January 1, 2011, section 2803-o of the Public Health Law was amended to require every general hospital that provides mastectomy surgery, lymph node dissection or a lumpectomy to provide information to the patient concerning the option of reconstructive surgery following such procedures, including the availability of insurance coverage of reconstructive surgery and access to reconstructive care. The information must be provided in writing and in advance of obtaining consent to the surgical procedure, and must include:

  • a description of the various reconstructive options, their advantages and disadvantages;
  • a description of the provisions assuring coverage by public and private insurance plans of the costs related to reconstructive surgery under federal and state law;
  • a description of how a patient may access reconstructive care including the potential of transferring care to a facility that provides reconstructive care or choosing to pursue reconstruction after completion of breast cancer surgery and chemo/radiotherapy, if warranted;

Facilities may use the following websites to assist in developing informational material to offer information to patients concerning the option of reconstructive surgery:

Specific questions pertaining to Breast Reconstructive Surgery Law can be directed to Julia Richards, at the Department's Division of Certification and Surveillance at (518) 402-1003 or e-mail her at

Family Healthcare Decisions Act (FHCDA)

Effective June 1, 2010, the Family Healthcare Decisions Act amended the Public Health Law by adding a new Article 29-CC that authorizes surrogate decision-making in hospitals and nursing homes, for patients who lack capacity to make their own medical decisions and have not signed health care proxies. Please note that the surrogate decision-making provisions of the FHCDA do not apply in psychiatric units of general hospitals. Pursuant to Article 29-B of the Public Health Law, surrogates are authorized to make only DNR decisions for patients who lack capacity in psychiatric units licensed under the Mental Hygiene Law. Additional guidance for patients, family members and providers can be accessed via the Department of Health's website and the New York State Bar Association:

  • "Deciding About Health Care - A Guide for Patients and Families", which is incorporated in the Health Department's website page "Your Rights as a Hospital Patient in New York State".
  • To help physicians and other health care providers discuss and convey a patient's wishes regarding cardiopulmonary resuscitation (CPR) and other life-sustaining treatment, the Department of Health approved a physician order form DOH-5003-Medical Orders of Life-Sustaining Treatment (MOLST) , which can be used statewide by health care practitioners and facilities. The Department has also developed checklists to assist providers in meeting the requirements governing consent to orders to withhold or withdraw life sustaining treatment. They are available on the Department's website at:
  • NY State Bar Association's FHCDA information center webpage is designed as a resource for all persons – including health care professionals, health care attorneys, advocacy groups, policymakers and members of the public – who are seeking background on the law and other information about the FHCDA:

Specific legal questions pertaining to the FHCDA can be directed to Jonathan Karmel; New York State Department of Health, Division of Legal Affairs; at (518) 473-3303 or e-mail

Rapid HIV Testing Law

Effective September 1, 2010, Chapter 308 of the Public Health Law authorizes significant changes in HIV testing in New York State. This law was enacted to increase HIV testing in the state and promote HIV-positive persons entering into treatment. Implementing this legislation is critical since approximately 20% of HIV-positive New Yorkers are unaware of their infection status and 33% of persons newly identified with HIV are diagnosed with AIDS within one year. Providers can access the Public Health Law, key provisions of the legislation, model consent forms, Frequently Asked Questions, and additional information on implementation by linking to the following Health Department's websites:

For information on clinical education, providers may access the Health Department's AIDS Institute Clinical Education Initiative (CEI) website and the website to HIV Guidelines. Both websites are designed to meet the educational needs of HIV providers throughout New York State:

Questions pertaining to the HIV Testing Law may contact the following persons in the Department's AIDS Institute:

Palliative Care Law

Effective February 9, 2011, the Public Health Law was amended by adding a new section 2997-c, commonly known as the Palliative Care Information Act. This requires attending physicians and nurse practitioners to offer terminally-ill patients information and counseling concerning palliative care and end-of-life options, including information about pain management and symptom control. Under the law, a terminal illness or condition is one which can reasonably be expected to cause death within six months, whether or not treatment is provided. Palliative care, as defined by the law, is "health care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient's quality of life, including hospice care." Information for providers concerning compliance with the law will be disseminated via the HCS and the Department's website prior to the effective date.

Questions pertaining to the Palliative Care Law may contact Karen Lipson in the Department's Policy Division at (518) 474-3920 or e-mail her at:


Mary Ellen Hennessy
Division of Certification and Surveillance