§ 82.12 — Limitations on liability

New York § 82.12

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title E: General Provisions
• Art. 82: Supported Decision-making

Text

* § 82.12 Limitations on liability.\n (a) Subdivisions (b), (c) and (d) of this section shall apply only to\ndecisions made pursuant to supported decision-making agreements created\nin accordance with this article which are signed by a facilitator and\nfollowing a recognized supported decision-making facilitation or\neducation process, as prescribed by regulations governing the\nfacilitation and education processes promulgated by the office for\npeople with developmental disabilities.\n (b) A person shall not be subject to criminal or civil liability and\nshall not be determined to have engaged in professional misconduct for\nan act or omission if the act or omission is done in good faith and in\nreliance on a decision made by a decision-maker pursuant to a duly\nexecuted supported decision-making agreement created in accordance with\nthis article.\n (c) Any health care provider that provides health care based on the\nconsent of a decision-maker, given with support or assistance provided\nthrough a duly executed supported decision-making agreement created in\naccordance with this article, shall be immune from any action alleging\nthat the decision-maker lacked capacity to provide informed consent,\nunless the entity, custodian, or organization had actual knowledge or\nnotice that the decision-maker had revoked the supported decision-making\nagreement, or that the supporter had committed abuse, physical coercion,\nundue influence, or financial exploitation with respect to the decision\nto grant consent.\n (d) Any public or private entity, custodian, or organization that\ndiscloses personal information about a decision-maker in reliance on the\nterms of a duly executed supported decision-making agreement created in\naccordance with this article, to a supporter authorized by the terms of\nthe supported decision-making agreement to assist the decision-maker in\naccessing, collecting, or obtaining that information under subdivision\n(e) of section 82.05 of this article, shall be immune from any action\nalleging that it improperly or unlawfully disclosed such information to\nthe supporter unless the entity, custodian, or organization had actual\nknowledge that the decision-maker had revoked such authorization.\n (e) This section may not be construed to provide immunity from actions\nalleging that a health care provider, or other third party, has done any\nof the following:\n 1. caused personal injury as a result of a negligent, reckless, or\nintentional act;\n 2. acted inconsistently with the expressed wishes of a decision-maker;\n 3. failed to provide information to either decision-maker or their\nsupporter that would be necessary for informed consent; or\n 4. otherwise acted inconsistently with applicable law.\n (f) The existence or availability of a supported decision-making\nagreement does not relieve a health care provider, or other third party,\nof any legal obligation to provide services to individuals with\ndisabilities, including the obligation to provide reasonable\naccommodations or auxiliary aids and services, including, but not\nlimited to, interpretation services and communication supports to\nindividuals with disabilities under the federal Americans with\nDisabilities Act (42 U.S.C. § 12101).\n * NB Effective 90 days from the date that the regulations issued in\naccordance with § 1 of chapter 481 of 2022 appear in the New York State\nRegister or the date such regulations are adopted, whichever is later.\n