Does a NY volunteer fire/rescue department have to honor a nonhospital DNR order, keep DNRs on file, and check them before answering 911 calls?

Subject

Volunteer fire/rescue must honor nonhospital DNR orders when presented at the scene; the squad has no obligation to maintain DNR files or check them before each call

Plain-English summary

A local attorney mailed the Kenmore Village volunteer fire/rescue department a copy of his client's living will and health care proxy. The client (a village resident) had consented to an order not to resuscitate (DNR) and named a proxy and an alternate to make her health care decisions if she became incapacitated. The attorney asked the department to honor those documents if called to her residence.

The village attorney asked three questions: must the department honor the DNR? Must it maintain records of such requests? Must it check those records before responding to emergency calls?

The AG answered: yes to the first, no to the second and third.

On the obligation to honor. Public Health Law Article 29-B (specifically § 2977) is the statutory framework for nonhospital DNR orders. Section 2977(1) requires "emergency medical services personnel" and others to honor nonhospital DNR orders except in the limited circumstances spelled out in § 2977(10). The definition of "emergency medical services personnel" in § 2961(7) includes first responders, EMTs, and advanced EMTs in services providing initial emergency medical assistance. A village volunteer fire/rescue department fits squarely within that definition.

The limited circumstances for disregard in § 2977(10) include good-faith belief that consent has been revoked or that the order has been cancelled, or family members or others on the scene objecting to the order such that physical confrontation appears likely.

On notice at the scene. The statute's notice mechanism contemplates that emergency personnel will be provided with the DNR order, or will identify a standard DNR bracelet on the patient's body, at the scene of the emergency. The legislative design assumes scene-of-emergency identification, not pre-emergency filing.

On filing and review. The AG read the statute as putting recordkeeping with the patient and the attending physician, not with emergency responders. Section 2977 imposes detailed duties on the physician: noting the order on the medical record, reviewing whether it remains appropriate at each examination and at least every 90 days, issuing the order on a standard form, ensuring availability of the standard bracelet. Section 2977(9) requires the physician (notified by any health care professional aware of revocation) to note revocation in the chart, cancel the order, and make "diligent efforts to retrieve" the form and bracelet.

None of those duties fall on the EMS responder. Imposing a filing-and-review obligation on emergency personnel would create three problems: it would not account for revocation (a DNR validly on file with the squad could have been revoked by the patient yesterday with no notice to the squad); it would impede swift emergency response (the squad would need to triage call data, retrieve records, and decide what to do before dispatching); and it would conflict with the statutory design that puts recordkeeping with the physician.

A nuance on health care proxies. Under Public Health Law Article 29-C, a proxy agent has no authority to act until the principal's attending physician determines the principal lacks capacity to make health care decisions (§§ 2981(4), 2983(1)). For a decision to withhold life-sustaining treatment, the attending physician must consult with another physician to confirm incapacity (§ 2983(1)). Emergency medical personnel are not authorized to make that capacity determination, so they cannot be responsible for deciding in the first instance whether an agent named in a proxy is authorized to make health care decisions on the principal's behalf.

The practical takeaway for the village: write back to the requesting attorney explaining the legal basis for not keeping the DNR on file, ensure the rescue squad members understand the conditions under which DNRs must be honored when presented at the scene, and document any training given. No formal filing system is needed.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does a nonhospital DNR order actually look like?

It is issued on a standard form developed by the Commissioner of Health (Public Health Law § 2977(6)). The standard bracelet is a wearable identification that signals DNR status. The form and the bracelet together provide the notice mechanism for emergency responders.

What if a family member objects when EMS arrives?

If the objection is such that "physical confrontation appears likely," § 2977(10)(a)(ii) lets the responders disregard the DNR. The legislative judgment is that on-scene safety of responders and others must come first. The DNR is also disregardable if responders believe in good faith that consent was revoked or the order was cancelled.

Why doesn't the responder have to verify the DNR's current validity?

Because the statute does not require it. The patient's attending physician has the recordkeeping duties. Responders rely on the standard form or bracelet presented at the scene, plus the limited disregard exceptions in § 2977(10). Adding verification duties to emergency responders would slow critical care and create liability exposure for choices that aren't theirs to make.

What about the health care proxy?

The proxy agent has authority only after the attending physician determines incapacity. EMS responders cannot make that determination, so the proxy alone is not actionable at a 911 call. A DNR order (a separate document, even though related) is the document EMS honors at the scene.

Can the village set up a voluntary registry anyway?

The opinion does not prohibit it but is skeptical. A voluntary registry would create the very problems the AG identified: stale data risk from undocumented revocations, dispatch delay from required record checks, and structural mismatch with the statute's intended responder workflow. If the village wanted to do this, it should be designed not to delay response (DNR check happens after en-route, for example), and should make clear that the registry is an aid, not a substitute for the scene-of-emergency notice mechanism.

Statutory framework

Public Health Law Article 29-B governs DNR orders. § 2961(7) defines "emergency medical services personnel" to include first responders, EMTs, and advanced EMTs. § 2977 covers nonhospital DNR orders. § 2977(1) requires emergency personnel and others to honor them. § 2977(5), (6), and (8) impose recordkeeping, form, and review duties on the attending physician. § 2977(9) covers revocation procedures. § 2977(10) lists the limited circumstances for disregarding a DNR (good-faith belief in revocation/cancellation, or likely physical confrontation).

Public Health Law Article 29-C governs health care proxies. § 2981(4) and § 2983(1) condition proxy-agent authority on the attending physician's determination of incapacity. For decisions to withhold life-sustaining treatment, the attending physician must consult with another physician to confirm incapacity (§ 2983(1)).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-1_pw.pdf

Original opinion text

PUBLIC HEALTH LAW ART 29-B and 29-C, §§ 2961(7), 2977, 2981, 2983.

A village volunteer fire/rescue department is required to honor nonhospital orders not to resuscitate issued pursuant to Public Health Law § 2977. Members of the department may disregard such orders only in the circumstances described in Public Health Law § 2977(10). The statute does not require emergency service providers to maintain files of such orders or to review such orders before responding to calls for emergency assistance.

February 2, 1996

Kathleen P. Johnson, Esq.
Village Attorney
Village of Kenmore
Municipal Building
2919 Delaware Avenue
Kenmore, NY 14217-2394

Informal Opinion
No. 96-1

Dear Ms. Johnson:

You have asked for an opinion regarding your village's volunteer fire/rescue department. A local attorney has mailed the department a copy of a client's health care proxy and living will. The attorney states that the client, who is a village resident, has consented to an order not to resuscitate (DNR) and has designated a proxy and an alternate to make health care decisions for the client in the event she becomes incapacitated. The attorney has asked the department to honor the client's wishes as expressed in the living will and health care proxy if the department is called to her residence. You ask whether the department is obligated to honor this request, whether it must maintain records of such requests, and whether it must review such records before responding to emergency calls.

Public Health Law Article 29-B governs orders not to resuscitate. Section 2977 makes express provision for nonhospital orders not to resuscitate. It states that "emergency medical services personnel", among others, "shall honor nonhospital orders not to resuscitate" except in limited circumstances specified in the statute. Public Health Law § 2977(1). "Emergency medical services personnel" is defined to include personnel of a service providing initial emergency medical assistance, including first responders, emergency medical technicians and advanced emergency medical technicians. Id., § 2961(7). Thus, the village volunteer fire/rescue department is required to honor nonhospital orders not to resuscitate issued according to Public Health Law § 2977.

The statute also defines notice to these personnel of the existence of a nonhospital order not to resuscitate.

Emergency medical services personnel, hospital emergency service personnel or correctional facilities medical care personnel who are provided with a nonhospital order not to resuscitate, or who identify the standard bracelet on the patient's body, shall comply with the terms of such order; provided, however, that:

(a) emergency medical services personnel, hospital emergency service personnel or correctional facilities medical care personnel may disregard the order if:

(i) they believe in good faith that consent to the order has been revoked, or that the order has been cancelled; or

(ii) family members or others on the scene, excluding such personnel, object to the order and physical confrontation appears likely;

. . .

Id., § 2977(10). This subsection addresses situations that may arise at the scene of an emergency, indicating a legislative intent that emergency medical services personnel be provided with DNR orders, or identify a standard bracelet, at the scene of an emergency.

We do not believe that the statute was intended to require emergency medical services personnel to maintain copies of DNR orders and health care proxies or to review such files before responding to emergency calls. The statute places the burden of record keeping with respect to DNR orders on the patient and his or her attending physician and imposes no such requirements on emergency personnel. Section 2977(3) provides that a nonhospital DNR order may be issued during hospitalization to take effect afterward or may be issued to a person who is not a hospital patient. The attending physician must note the order on the patient's medical record and review whether the order is still appropriate each time he or she examines the patient and at least every 90 days. Id., § 2977(5), (8). The order is to be issued on a standard form and the Commissioner is directed to develop a standard bracelet that may be worn by a patient with a DNR order to identify that status. Id., § 2977(6).

The statute also provides that a person who has consented to a DNR order may revoke it at any time by any act evidencing a specific intent to revoke. Any health care professional who becomes aware of a revocation is required to notify the attending physician, who must note the revocation in the patient's chart, cancel the order "and make diligent efforts to retrieve the form issuing the order, and the standard bracelet, if any". Id., § 2977(9). Not only does this section make the attending physician responsible for record keeping, it expresses the Legislature's intent that a person who has consented to a DNR order may freely revoke that consent at any time. A requirement that emergency medical personnel keep records of such orders on file, review them before responding to emergency calls and act according to the filed records would not take into account the possibility that the orders may have been revoked. Statutory requirements do not envision such filings. In any event, reliance on such filings would not be prudent in light of the foregoing statutory requirements governing revocation of DNRs. Moreover, as you note, such a requirement would impede swift provision of emergency assistance.

We also note that pursuant to Public Health Law Article 29-C, an agent designated in a health care proxy has no authority to act until the principal's attending physician makes a determination that the principal lacks capacity to make health care decisions. Id., §§ 2981(4), 2983(1). For a decision by an agent to withhold life-sustaining treatment, the attending physician must consult with another physician to confirm the determination of the incapacity of the principal. Id., § 2983(1). Emergency medical services personnel are not authorized to make that determination and so would not be responsible for deciding in the first instance whether an agent named in a proxy is authorized to make health care decisions.

Responding to your questions, you are not required to keep the DNR on file. You should communicate this position to the person who requested filing along with its legal basis so that statutory requirements regarding the honoring of DNRs can be met. While a formal procedure is not required, members of the emergency squad should fully understand the conditions for honoring a DNR.

We conclude that a village volunteer fire/rescue department is required to honor nonhospital orders not to resuscitate issued pursuant to Public Health Law § 2977. Members of the department may disregard such orders only in the circumstances described in Public Health Law § 2977(10). The statute does not require emergency service providers to maintain files of such orders or to review such orders before responding to calls for emergency assistance.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General