MOLST Frequently Asked Questions (FAQs)

1 . What is MOLST -- Medical Orders for Life-Sustaining Treatment?

Honoring patient preferences is a critical element in providing quality end-of-life care. Medical Orders for Life-Sustaining Treatment, or MOLST, is designed to improve the quality of care patients receive at the end of life. This is done by translating patient goals of care and preferences into medical orders.

MOLST is based on communication between the patient, their health care agent or other designated surrogate decision-maker, and their physician, nurse practitioner or physician assistant. They ensure that shared, informed medical decision-making takes place. Other health care practitioners may participate in the process, within scope of practice.

2. What is the DOH-5003 MOLST Form?

The New York State Department of Health (Department of Health) approved the DOH-5003 MOLST Form to help physicians, nurse practitioners and physician assistants discuss and convey a patient's wishes regarding CPR and other life-sustaining treatment. It can be used statewide by health care practitioners and facilities. The MOLST form has also been approved by the Office for Persons with Developmental Disabilities (OPWDD) and the Office for Mental Health (OMH).

The MOLST is a medical order form signed by a New York State-licensed physician, nurse practitioner, physician assistant, or a border state physician. It is ideally printed on bright pink paper to ensure visibility in an emergency. Health care practitioners must follow MOLST as a medical order when the patient moves from one location to another. This is true unless a physician, nurse practitioner, or physician assistant examines the patient, reviews the orders, and changes them after talking with the patient and/or their decision-maker.

The MOLST serves as a single document that contains a patient's preferences based on their goals of care.

3. What medical orders are on the DOH-5003 MOLST Form?

The MOLST is completed after a thoughtful discussion with the patient, health care agent or surrogate based on the patient's current health status, prognosis, and goals of care. This fulfills the ethical-legal requirements under New York Public Health Law.

If treatment decisions are not named, and are left blank on the MOLST, or if the decision is deferred, patients and decision-makers should be made aware that those treatments will be provided in full, as necessary.

4. What is the advantage of the DOH-5003 MOLST Form?

Under State law, the MOLST Form is the only authorized form in New York State for documenting both nonhospital Do Not Resuscitate (DNR) and Do Not Intubate (DNI) orders. The Form is also helpful to patients and practitioners. It provides specific medical orders and is recognized and used in a variety of health care settings. It is also transferable to other settings across care transitions. For these reasons, a DNR, DNI or other orders issued on a MOLST Form are effective and must be followed in hospitals, hospice, nursing homes and community settings – for example, e.g. home or an assisted living facility.

5. How can physicians, nurse practitioners and physician assistants adhere strictly to all legal requirements for completing the MOLST Form for adult patients?

In addition to the MOLST Form itself, the Department of Health has developed legal requirements checklists. Checklists #1, #2, #3, #4, #5, and #6 are NOT intended for use with patients who lack medical decision-making capacity and who are living with an intellectual or developmental disability. This includes such patients who live in mental hygiene facilities. The OPWDD checklist is for patients of any age with an intellectual or developmental disability who lack capacity and do not have a Health Care Proxy.

The following checklists are intended to assist physicians, nurse practitioners and physician assistants in satisfying the complex legal requirements associated with decisions concerning life-sustaining treatment for all other patients. They are guidance documents. The use of these checklists is not mandatory.

However, physicians, nurse practitioners and physician assistants who do not use the checklists must use an alternative method for assuring they adhere strictly to all legal requirements for completing the form. This includes requirements related to securing informed consent from the proper person, making the clinical judgments necessary to support orders withholding or withdrawing life-sustaining treatment, and where applicable, securing ethics committee approval and witnesses to the consent.

The following vary depending on who makes the decision and where the decision is made: decision- making standards, procedures, and statutory witness requirements for decisions to withhold or withdraw life-sustaining treatment, including DNR. This is why the Department developed different checklists for different types of decision-makers and settings:

Adult Patients

For more information on MOLST General Instructions for Adults, please review:

Minor Patients

6. Can the DOH-5003 MOLST Form be changed if the patient or doctor does not like the form?

No.The Department of Health has updated the Form several times (most recently in 2022) to make it more user-friendly and to align the form with changes in statute.

However, additional guidelines for withholding/withdrawing treatment not addressed elsewhere on the form can be included in "Additional Medical Orders and Instructions." This includes, for example, decisions about implantable defibrillators.

7. What is the difference between a Health Care Proxy or a Living Will and the MOLST form?

A Health Care Proxy and a Living Will are traditional advance directives for adults 18 and older. These documents are completed when a patient has capacity to do so and apply only when medical decision- making capacity is lost.

The MOLST was created to complement the use of traditional advance directives, and to facilitate the communication of medical orders impacting end-of-life care for patients with advanced illness. The MOLST contains specific and actionable medical orders that transition with the patient across health care settings. Health Care Proxies and Living Wills typically contain more general instructions and cannot be followed by EMS and health care practitioners in an emergency.

In contrast to a Health Care Proxy, the MOLST applies as soon as a patient consents to the orders in it and a physician, nurse practitioner, or physician assistant signs it. It is not conditional on a determination that a patient has lost medical decision-making capacity. The MOLST is based on the belief that patients have the right to make their own health care decisions, including decisions about life-sustaining treatment, to describe these wishes to their physician, nurse practitioner or physician assistant, and to receive comfort care while wishes are being honored.

8. Has the DOH-5003 MOLST Form been approved for use for adult patients and minor patients?

The Department of Health has approved the DOH-5003 MOLST Form for use with adult patients and minor patients. MOLST can be used statewide by health care practitioners and facilities.

The Department has created separate instructions for completing the MOLST Form with adult and minor patients, respectively. The "MOLST Adult General Instructions and Glossary for Use with MOLST" is intended to assist physicians, nurse practitioners and physician assistants in completing the MOLST Form with adult patients and/or their authorized health care decision-makers and can be found at: Medical Orders for Life-Sustaining Treatment (MOLST).

The Department has also created a "MOLST Checklist for Minor Patients and Glossary." It contains instructions to assist physicians, nurse practitioners and physician assistants in completing the MOLST Form with minor patients and their parents, or other legal guardians with authority to make health care decisions on their behalf. The checklist for minor patients can be found at: MOLST Checklist For Minor Patients in a Hospital or Nursing Home (PDF).

9. Has the DOH-5003 MOLST Form been approved for use for persons with developmental disabilities or persons with mental illness?

Persons Living with Developmental Disabilities:

The Office for People with Developmental Disabilities (OPWDD) has approved the use of the MOLST Form for all individuals in New York State with a diagnosed developmental disability. This checklist is for a patient of any age with an intellectual or developmental disability (I/DD) who lacks capacity and does not have a Health Care Proxy, regardless of their residential setting. For a patient with an I/DD who lacks capacity and does not have a Health Care Proxy, the completed OPWDD MOLST Legal Requirements Checklist must remain attached to the MOLST Form for it to be valid.

If the patient has an I/DD and lacks the capacity to decide, the physician (not a nurse practitioner or physician assistant) must follow special procedures and attach the completed OPWDD MOLST Legal Requirements Checklist for Individuals with I/DD before signing the MOLST. The OPWDD Checklist can be found at: OPWDD Checklist (PDF).

This means that the MOLST Form may be completed only after the Surrogate's Court Procedure Act §1750‑b process has been completed for an individual. Use of the Checklist ensures that the appropriate statutory standards have been met prior to use of the MOLST process. Please note that use of the MOLST Form is optional.

The most significant change resulting from approval of the MOLST Form by the OPWDD is with respect to nonhospital Do Not Resuscitate (DNR) orders. Previously, such DNR orders were required to be on the DOH-3474 Form. Now a nonhospital DNR order can be written on either the DOH-3474 Form or the DOH-5003 MOLST Form.

Individuals Living with Mental Illness:

Individuals with mental illness who live alone, with their families, in community residential programs, or who are admitted to a general hospital may be considered for a MOLST in the same way as any adult without a mental illness. Living with a mental illness does not automatically change a person's rights compared to the general population.

However, end-of-life decisions, including DNR and DNI orders, for individuals admitted to a psychiatric unit of a general hospital, a stand-alone psychiatric hospital, a State-Operated Psychiatric Center, or a state-operated patient program, are governed by the NYS Family Health Care Decisions Act (FHCDA), which follows a different process. The FHCDA establishes a distinct procedure for capacity determinations for individuals admitted to an OMH facility. Please see checklists #3 and #4 for additional information on legal requirements for individuals admitted to OMH facilities who lack Medical Decision- Making Capacity due to a mental illness and lack a Health Care Proxy: Medical Orders for Life-Sustaining Treatment (MOLST).

10. What type of adult patient should have a MOLST Form?

MOLST is generally for patients with serious health conditions. Completion of MOLST is a process and is voluntary. Physicians, nurse practitioners, or physician assistants should consider educating and consulting with the patient about completing a MOLST Form if the patient:

  • Wants to avoid or receive life-sustaining treatment
  • Resides in a long-term care facility or requires long-term care services at home or in an assisted living facility
  • Might die within the next year
  • Has one or more advanced chronic conditions or a new diagnosis with a poor prognosis
  • Has had two or more unplanned hospital admissions in the last 12 months coupled with increasing frailty, decreasing functionality, progressive weight loss or lack of social support
  • MOLST also may be appropriate for a patient with advanced age wishing to further define preferences for care.

These patients may:

  • Want all appropriate treatment, including CPR
  • Want to avoid all life-sustaining treatment
  • Choose to limit life-sustaining treatment
  • Want to avoid any attempt to begin CPR and prefer to Allow Natural Death (a DNR order);
  • Want to avoid placement of a tube down the throat into the windpipe connected to a breathing machine (intubation) and request a "Do Not Intubate Order" (DNI order)

11. Is a MOLST Form required for every appropriate patient?

No. Completing a MOLST is voluntary and cannot be required.

12. How much of the form should be completed for an adult patient?

Completion of the entire MOLST Form is strongly encouraged, especially urgent orders on page one needed in an emergency. MOLST is not intended to solely confirm a patient's resuscitation preference. If treatment decisions are not specified and left blank on the MOLST, or if the decision is deferred, patients and decision-makers should be made aware that those treatments will be provided in full, as necessary.

Under Section F of the form, if a decision has not been made, the physician, nurse practitioner, or physician assistant should choose the option, "Determine use or limitation if need arises." If the patient or decision-maker reaches a decision concerning the treatment option(s) later, a new form must be completed and signed by a physician, nurse practitioner, or physician assistant.

The Department of Health has developed Legal Requirements checklists to assist physicians, nurse practitioners and physician assistants in completing the forms with patients and/or their authorized medical decision-makers in various settings. The checklists are available at: Medical Orders for Life-Sustaining Treatment (MOLST).

13. May a physician licensed in another state complete and sign a MOLST?

Patients may choose to receive their care in other states, particularly states that border New York.

Physicians licensed in a border state may sign a MOLST Form. The physician must insert the abbreviation for the state of license, along with the license number. Border states to New York are Pennsylvania, New Jersey, Connecticut, Massachusetts, and Vermont.

14. May a physician working in the Veterans Administration licensed in a state other than New York complete and sign a MOLST?

Physicians practicing in the Veterans Administration (VA) care for New York citizens. These physicians may have licenses from any state, as they practice within a federal system. Similarly, if the VA physician is licensed in a state other than New York, the VA physician must insert the abbreviation for the state of license, along with the license number.

15. What should a physician, nurse practitioner of physician assistant do if the patient presents with a POLST Form from another state?

New York honors all other state-specific POLST Forms. The physician, nurse practitioner or physician assistant should follow the medical orders from other states on a state-specific POLST Form in an

emergency. After the emergency has resolved, the medical orders should be reviewed and renewed. The MOLST form should be completed with adult patients and/or their authorized health care decision-

makers following the ethical-legal requirements outlined on the Department of Health Checklists that can be found at: Medical Orders for Life-Sustaining Treatment (MOLST).

For information on state-specific POLST programs and forms, see www.POLST.org.

16. Can a physician, nurse practitioner or physician assistant complete a MOLST if the patient is seeking specialty care in New York, wishes to withhold life-sustaining treatment, and is returning to their home state?

Patients may seek care, particularly specialty care, in New York. If the adult patient and/or their authorized health care decision-makers make decisions to withhold life-sustaining treatment, complete the MOLST Form with adult patients and/or their authorized health care decision-makers. Follow the ethical-legal requirements outlined on the Department of Health Checklists found at: Medical Orders for Life-Sustaining Treatment (MOLST). The MOLST Form, and ideally documentation of the MOLST discussion, should be included in the transfer of patient information.

17. Who provides consent for MOLST orders for adult patients?

The patient or other medical decision-maker--a health care agent or Public Health Law surrogate, if the patient does not have the ability to make medical decisions about life-sustaining treatment--must consent to the MOLST orders. An exception is made for patients covered by Checklist #4--adult hospital, hospice, or nursing home patients without medical decision-making capacity who do not have a Health Care Proxy or a Public Health Law surrogate.

18. Is verbal consent permitted for MOLST orders?

Yes. Verbal consent with two adult witnesses is permissible for MOLST orders. This includes telehealth visits and eMOLST.

If the MOLST is done with verbal consent and lacks documentation of two witnesses, MOLST is not legal.

19. Are the legal requirements under New York State Public Health Law the same for all medical decision-makers for life-sustaining treatment for adult patients?

Decision-making standards, procedures, and statutory witness requirements for decisions to withhold or withdraw life-sustaining treatment, including DNR, vary depending on who makes the decision and where the decision is made. Accordingly, the Department of Health developed different checklists for different types of decision-makers and settings. The checklists are available at:

Medical Orders for Life-Sustaining Treatment (MOLST).

20. If a patient loses the capacity to make medical decisions, what are the legal requirements for a patient's prior decision to withhold or withdraw life-sustaining treatment to be effective in a hospital, nursing home or hospice setting?

In order for a patient's prior decision to withhold or withdraw life-sustaining treatment to be effective in a hospital, nursing home or hospice after they lose capacity to make medical decisions, the prior decision must have been made:

  • Orally in a hospital, nursing home, or hospice, in the presence of two witnesses, 18 or older, at least one of whom is a health care or social services practitioner affiliated with the hospital, nursing home, or hospice; or
  • In writing.

21. What are the legal requirements for a health care agent completing a MOLST under FHCDA on behalf of an adult patient without medical decision-making capacity who has a Health Care Proxy in any setting?

A health care agent may make medical decisions on behalf of a patient, after two (2) physicians concur the patient lacks medical decision-making capacity. Health care agents are generally authorized to make decisions as if they were the patient. However, sometimes the patient's Health Care Proxy limits the authority of the health care agent.

Health care agents are required to make decisions according to the patient's wishes, including the patient's religious and moral beliefs. If the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, the health care agent may make decisions according to the patient's best interests, except a decision to withhold or withdraw artificial nutrition or hydration.

Health care agents are authorized to make a decision to withhold or withdraw artificial nutrition or hydration only if they know the patient's wishes regarding the administration of artificial nutrition and hydration, as recorded on the Health Care Proxy. For example, the Health Care Proxy may include a statement, "My agent knows my wishes about artificial hydration and nutrition." If the Health Care Proxy does not include the authority of a health care agent to make decisions regarding artificial hydration and nutrition, this decision is made by a surrogate under FHCDA. The decision may be a different medical decision-maker than the health care agent.

For more information on legal requirements for adult patients without medical decision-making capacity who have a Health Care Proxy in any setting, please review Checklist 2 found at

http://www.health.ny.gov/professionals/patients/patient_rights/molst/docs/checklist_2.pdf.

22. What are the legal requirements for a surrogate completing a MOLST under FHCDA for adult hospital, hospice, or nursing home patients without medical decision-making capacity who do not have a Health Care Proxy, and the decision-maker is a Public Health Law Surrogate (a surrogate selected from the surrogate list)?

Under the Family Health Care Decisions Act (FHCDA), a surrogate selected from the surrogate list can make any kind of medical decision in a hospital, hospice, or nursing home, after a legally valid determination is made that the patient lacks capacity. For decisions to withhold or withdraw life- sustaining treatment, specific clinical criteria must be satisfied.

Special requirements exist for declining artificial nutrition and hydration in a hospital over the objection of the attending physician, nurse practitioner, or physician assistant. Special requirements also exist for decisions other than DNR in a nursing home, if the physician, nurse practitioner, or physician assistant has determined the patient has an irreversible or incurable condition. In these situations, the facility's ethics review committee must agree. This nursing home requirement does not apply to a decision to withhold or withdraw life-sustaining treatment if death is expected within six (6) months with or without treatment, or if the patient is permanently unconscious.

Please review Checklist 3 below for more information on legal requirements for adult hospital, hospice or nursing home patients without medical decision-making capacity who do not have a Health Care

Proxy --and the decision-maker is a Public Health Law Surrogate--a surrogate selected from the surrogate list: MOLST Checklist 3 adult FHCDA surrogate.

23. What can a Health Care Agent and/or FHCDA Surrogate do and not do?

If the patient with capacity decides to withhold life-sustaining treatment, a health care agent or

surrogate cannot change the patient's decision if the patient loses capacity. However, a health care agent or surrogate can make additional decisions to withhold life-sustaining treatment on the patient's behalf, if not already made when the patient had capacity.

If a patient lacks capacity and the health care agent or surrogate may make decisions to withhold and/or withdraw life-sustaining treatment, the health care agent or surrogate can change the decision.

24. How does the physician, nurse practitioner or physician assistant identify and notify the appropriate Public Health Law surrogate under FHCDA?

The attending physician, nurse practitioner, or physician assistant identifies and notifies a person from the class highest in priority who is reasonably available, willing, and competent to serve as a surrogate decision-maker. If the person is unable or unwilling to serve, they may designate any other person on the list to be the surrogate, provided no one who is in a class higher in priority than the designated person objects.

In order of highest priority, the appropriate Public Health Law surrogate under FHCDA is:

  • Patient's guardian authorized to decide about health care pursuant to Mental Hygiene Law Article 81
  • Patient's spouse or domestic partner, if not legally separated from the patient
  • Patient's son or daughter, 18 or older
  • Patient's parent
  • Patient's brother or sister, 18 or older
  • Patient's actively involved close friend, 18 or older

This is also the Public Health Law Surrogate List. There is a different Surrogate List for Persons with Developmental Disabilities who lack capacity to make medical decisions. This list and more information can be found in the Health Care Decisions section of the Office for People with Developmental

Disabilities (OPWDD) website: General.

25. For all questions related to surrogates as defined in the Family Health Care Decisions Act, please visit their Information Center for specific FAQs at Family Health Care Decisions Act (FHCDA) Resource Center - New York State Bar Association.

26. What clinical standards apply to a decision made by a surrogate to consent to a DNR order?

Under FHCDA, the physician, nurse practitioner, or physician assistant and a concurring physician, nurse practitioner, or physician assistant must determine to a reasonable degree of medical certainty that CPR would be extraordinarily burdensome, and:

  • The patient has an illness or injury which can be expected to cause death within six (6) months, whether or not treatment is provided; or the patient is permanently unconscious; and/or
  • The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under any circumstances; and the patient has an irreversible or incurable condition; and
  • The concurring physician's, nurse practitioner's, or physician assistant's determination is documented in the medical order.

27. What are standards for FHCDA surrogates for making decisions recorded on a MOLST Form under FHCDA?

Decisions made by an FHCDA surrogate under FHCDA must be consistent with the patient's wishes, including religious and moral beliefs; or if the patient's wishes are not reasonably known and cannot be ascertained, in accordance with the patient's best interests. This includes consideration of:

  • the dignity and uniqueness of every person;
  • the possibility and extent of preserving the patient's life;
  • the preservation, improvement, or restoration of the patient's health or functioning;
  • the relief of the patient's suffering; and
  • any medical condition and such other concerns and values as a reasonable person in the patient's circumstances would wish to consider.

28. What special requirements exist under FHCDA for decisions to withhold or withdraw life-sustaining treatment based on the existence of an "irreversible or incurable condition"?

In hospitals, special requirements exist when withdrawing or withholding artificial nutrition and hydration over the attending physician's, nurse practitioner's, or physician assistant's objection. If the attending physician, nurse practitioner, or physician assistant objects to the order, the ethics review committee (including a physician, nurse practitioner, or physician assistant who is not directly responsible for the patient's care), or an appropriate court, must determine that the medical order meets the required standards.

In nursing homes, for orders to withhold or withdraw life-sustaining treatment other than DNR orders, the ethics review committee (including at least one physician, nurse practitioner, or physician assistant who is not directly responsible for the patient's care), or an appropriate court must determine that the orders meet the required standards.

29. Who makes decisions and what are the legal requirements for completing a MOLST for adult hospital or nursing home patients without medical decision-making capacity who do not have a Health Care Proxy and for whom no surrogate from the surrogate list is available?

Under the Family Health Care Decisions Act (FHCDA), life-sustaining treatment may be withheld from a patient in a hospital or nursing home who does not have a Health Care Proxy or a surrogate. This is true only if a court makes the decision, or two (2) physicians, nurse practitioners, or physician assistants authorized by the facility concur that the patient would die imminently, even if the patient received the treatment, and that provision of the treatment would violate accepted medical standards.

For more information on legal requirements for adult hospital, hospice or nursing home patients without medical decision-making capacity, who do not have a Health Care Proxy, and for whom no surrogate from the surrogate list is available, please review Checklist 4

30. Who makes decisions and what are the legal requirements for completing a MOLST for adult patients without medical decision-making capacity who do not have a Health Care Proxy, and MOLST form is being completed in the community?

In the community, Public Health Law surrogates (surrogates selected from the surrogate list) can consent to a nonhospital DNR order or a nonhospital DNI order on behalf of patients who lack medical decision- making capacity. If MOLST is being completed in the community for a patient who does not have a Health Care Proxy, the physician, nurse practitioner, or physician assistant may issue other medical orders to withhold life-sustaining treatment--other than DNR and DNI--only if there is clear and convincing evidence of the patient's wishes to refuse the treatment.

If the patient is enrolled in a community-based hospice program, decisions regarding the hospice plan of care may be made by a surrogate without clear and convincing evidence, as long as they comply with the applicable patient-centered and clinical standards for decisions by FHCDA surrogates described above.

Please review Checklist 5 below for more information on legal requirements for adult patients without medical decision-making capacity who do not have a Health Care Proxy—and for whom a MOLST Form is being completed in the community: MOLST Checklist 5 adult without capacity in the community.

31. Is documentation in the medical record important and part of the process?

Yes. The conversation should be documented in the medical record. The physician, nurse practitioner or physician assistant should document:

  • Conversations with the patient, Health Care Agent, surrogate decision-maker and 'family,' as defined by the patient;
  • Patient capacity assessments;
  • Documentation of 'clear and convincing' evidence, as required; and
  • Documentation of legal requirements based on who made the decision and where the decision is made. These are outlined in the NYSDOH Legal Requirements Checklist for Adult Patients and Minor Patients and the OPWDD MOLST Checklist for Individuals with Developmental Disabilities who lack medical decision-making capacity.

32. What is 'clear and convincing' evidence?

For decisions on behalf of a patient who lacks capacity, in the community, other than DNR and/or DNI, "clear and convincing" evidence is needed.

"Clear and convincing evidence" is evidence that the patient held a firm and settled commitment to the withholding of life-sustaining treatment in the event of circumstances like the patient's current medical condition. The evidence may be in a written Living Will, and/or previous oral statements indicating the patient's wishes, considering the circumstances under which such statements were made and to whom. To decide whether the evidence of the patient's wishes is clear and convincing, consideration should be given to:

  • whether the statements were general or specific
  • whether the statements were about specific circumstances--for example, terminal illness, persistent vegetative state--that are similar to the patient's current medical condition
  • the intensity, frequency, consistency, and seriousness of such statements
  • whether the statements tended to show that the patient held a firm and settled commitment to certain treatment decisions under circumstances like those presented
  • whether the strength and durability of the patient's religious and moral beliefs make a more recent change of heart unlikely
  • whether the statements were made to only one person, or to more than one person close to the patient

33. What is capacity?

The Family Health Care Decisions Act (FHCDA) defines "decision-making capacity" as the ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed health care, to reach an informed decision.

"Capacity" is the ability to take in information, understand its meaning, and make an informed decision using the information provided. Capacity is task specific. A patient's capacity to make different decisions can vary. The key principle is the assessment of the patient's ability to understand the consequences of a decision.

The capacity to choose a health care agent is different than the ability to make medical decisions. In addition, the capacity to make medical decisions is based on the complexity of decisions. A patient may be able to make simple health care decisions versus complicated decisions regarding DNR and other life- sustaining treatment on the MOLST.

34. Who determines capacity?

Both the Health Care Proxy Law and FHCDA provide that the attending physician, nurse practitioner, or physician assistant determines capacity. The Health Care Proxy Law requires that a second physician, nurse practitioner, or physician assistant provide a concurring determination. The FHCDA also requires a concurring determination of incapacity but allows the concurring determination to be made by a health care or social services practitioner.

If the attending physician, nurse practitioner, or physician assistant has determined that the lack of medical decision-making capacity is due to mental illness, one of the two physicians, nurse practitioners, or physician assistants who determined that the patient lacks medical decision-making capacity must be a qualified psychiatrist.

If the attending physician has determined the individual's lack of capacity to make health care decisions is due to developmental disabilities, either the attending physician, or the concurring physician, or licensed psychologist must: (a) be employed by a developmental disabilities services office (DDSO); or (b) have been employed for at least two (2) years in a facility or program operated, licensed or authorized by OPWDD; or (c) have been approved by the Commissioner of OPWDD as either possessing specialized training or have three (3) years' experience in providing services to individuals with developmental disabilities.

35. Can the physicians, nurse practitioners, or physician assistants make a determination of capacity, without personally examining the patient—for example, over the phone?

Unlike the prior DNR Law, the FHCDA no longer contains a "personal examination" requirement. As a result, the physician, nurse practitioner, or physician assistant must comply with the applicable professional standard of care. In most instances, that would require an in-person examination, but in limited circumstances it might not, such as when the patient lacks capacity due to being unconscious or in the late stage of dementia.

36. Do I need a psychiatric consultation in all cases to determine decision-making capacity?

No. The attending physician, nurse practitioner, or physician assistant may determine capacity but must seek consultation with a qualified psychiatrist if the patient has a mental illness or if there is a question regarding the capacity determination. Any qualified physician, nurse practitioner, or physician assistant can determine capacity.

37. When do I need a psychiatric consultation?

If there is reason to believe the individual lacks capacity due to mental illness, one of the two physicians, nurse practitioners, or physician assistants who determined that the patient lacks medical decision- making capacity must be a qualified psychiatrist. The determination by the qualified psychiatrist is documented in the medical record.

"Qualified psychiatrist" means a physician licensed to practice medicine in New York State, who is a diplomate or eligible to be certified by the American Board of Psychiatry and Neurology, or who is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that Board.

Mental illness does not refer to dementia. It includes, but is not limited to, conditions such as schizophrenia or acute psychotic episode.

38. What do you do with a completed MOLST form?

MOLST Forms are designed to travel with the individual between care settings. The form should be kept in the front of the individual's medical chart when the individual is in a facility. When the individual is at home, the MOLST form should be kept on the refrigerator, by the phone in the kitchen, or by the individual's bedside. In case of emergency, EMS personnel are trained to look for the MOLST Form in these locations.

A photocopy of the MOLST Form should be made when the individual is transferred from one health care setting to another – for example, being admitted from a nursing home to a hospital. The photocopy of the form should be kept in the medical chart at the originating location at the time of care transition. The original form should accompany the individual and be placed in the individual's medical chart at the new care setting.

MOLST Forms and all advance directives known to have been completed, including documentation of any oral advance directive, should be kept together and transferred with the patient at discharge.

39. When must the MOLST be reviewed?

The physician, nurse practitioner, or physician assistant must review the MOLST Form at least every 90 days, and also:

  • If the patient moves from one location to another to receive care; or
  • If the patient has a major change in health status (for better or worse); or
  • If the patient or other decision-maker changes his or her mind about treatment.

The MOLST remains valid and must be followed, even if it has not been reviewed within the 90-day period.

Public Health Law requires the physician, nurse practitioner, or physician assistant to review nonhospital DNR orders and record the review at least every 90 Days. In hospitals and nursing homes, MOLST orders must be reviewed regularly in accordance with facility policies.

The patient's medical condition, prognosis, values, wishes, and goals of care may change over time. The physician, nurse practitioner, or physician assistant should review these orders at the same time as DNR/Allow Natural Death orders are reviewed.

40. How should MOLST orders be reviewed and renewed?

Review all medical orders in Sections A through F of the MOLST Form. Document the outcome of the review in Section I.

  • If there is no change in the patient's health status, medical decision-making capacity or preferences, sign, date and check the "No Change" box.
  • If there is a substantial change in the patient's health status, medical decision-making capacity, goals of care or preferences that result in a change in MOLST orders, write "VOID" in large letters across the form. Also, complete a new form, in accordance with NYS Public Health Law decision- making standards and procedures. Check the box marked "Form voided, new form completed."

    (RETAIN the voided MOLST Form in a chart, medical record, or electronic registry as required by law.)

  • If this form is voided and no new form is completed, full treatment and resuscitation will be provided, unless a different decision is made by the patient, surrogate, or health care agent.

41. Can MOLST orders be changed by a patient?

A patient with capacity to make medical decisions about life-sustaining treatment may reverse his or her consent to MOLST. They may ask their physician, nurse practitioner, or physician assistant to make the change. If the patient lacks capacity to make health care decisions, and there is a change in the goals of care based on a major change in health status, the Health Care Agent or Surrogate may also revoke consent and may request a change in the MOLST. The patient, Health Care Agent or Surrogate must be consulted about any changes recommended by the patient's physician, nurse practitioner or physician assistant. No change can be made without the informed consent of the patient or appropriate decision- maker.

42. Does a MOLST Form have to be on pink paper? Is an accurate reproduction of an original, signed MOLST form legal and valid?

No. A MOLST Form does not have to be on pink paper. White MOLST Forms and photocopies, faxes, scans, or other accurate electronic reproductions of the original, signed MOLST form are legal and valid.

43. Is a stamped signature on the original, signed MOLST Form legal and valid?

No. A stamped signature is not permitted.

44. How should a MOLST Form be used in a facility with electronic health records?

Scan the MOLST into the computer at the time of admission and discharge. Review the MOLST at the time of discharge or transition of care and retain an electronic copy. The original pink MOLST Form should be given to the patient at the time of discharge. A copy should be retained in the electronic medical record, a copy should go to the primary care physician's, nurse practitioner's, or physician assistant's office, and a copy should go to the home care agency if the patient is receiving home care.

45. Does the MOLST Form replace traditional Advance Directives?

No. A properly completed MOLST Form contains legal and valid medical orders. It is not intended to replace traditional advance directives like the Health Care Proxy and Living Will.

46. Can the MOLST take the place of current DNR forms in health care facilities?

Yes. The Department of Health approved the MOLST as a do not resuscitate (DNR) form that can be used in any setting.

47. Where can I get MOLST forms?

The MOLST and its supporting checklists can be downloaded from the Department of Health website: Medical Orders for Life-Sustaining Treatment (MOLST).

To order MOLST forms, complete the DOH Order Form and email it to bmcc@health.ny.gov. Quantities may be limited.

48. Where can I get more information about MOLST?

For more information about the MOLST, view the Department of Health's website at Medical Orders for Life-Sustaining Treatment (MOLST) or contact the Center for Hospice & Palliative Care at CHPC@health.ny.gov.