Relates to extending the provisions of the Family Health Care Decisions act

Summary of specific provisions

Section 1 amends various subdivisions in PHL §2994-a (Definitions) to add definitions for "decisions regarding hospice care" and "hospice," and to amend the definition of "hospital" to include hospice.

Section 2 amends PHL §2994-b, subdivision 1 to make the FHCDA apply to decisions regarding hospice care.

Section 3 amends PHL §2994-c, subdiv. 3(b) to provide that with respect to a concurring determination regarding hospice care for a patient in a general hospital or residential health care facility, the health or social services practitioner must be employed by or otherwise affiliated with the facility.

Section 4 amends PHL §2994-d, subdiv. 5 to clarify that decisions to withdraw or withhold life sustaining treatment include decisions to accept a hospice plan of care that provides for the withdrawal or withholding of life-sustaining treatment.

Section 5 amends PHL §2994-g, subdiv. 4(b)(iii) and of the public health law to require a concurring opinion with respect to decisions to provide major medical treatment for hospice patients who do not have a surrogate.

Section 6 amends PHL §2994-g, subdiv. 5 to provide that with respect to a decision to withdraw or withhold life-sustaining treatment from a hospice patient who does not have a surrogate and who is in a general hospital or residential health care facility, the second physician must be designated by the general hospital or residential health care facility.

Section 7 amends PHL §2994-m, subdiv. 4 regarding the responsibility of a hospital or residential ethics committee to review a decision regarding a hospice patient in such facility.

Section 8 amends §2994-aa, subdiv. 13 to provide that a non-hospital order not to resuscitate also applies to hospice personnel.

Section 9 provides for the act to become effective on the sixtieth day after it shall have become a law.

Justification

By enacting the Family Health Care Decisions Act, Ch. 8, Laws of 2010 (the FHCDA), the Legislature significantly improved decision-making in New York for patients who lack capacity and who do not have a health care agent. Specifically, the FHCDA recognized the authority of a "surrogate" decision-maker, i.e., a close family member or friend, to make health care decisions for the incapable patient in such cases, subject to ethically sound standards and safeguards.

While the FHCDA by its terms only applies to health care decisions regarding health care provided in a hospital or nursing home, PHL §2994-d.1, from the outset the Legislature recognized the need to consider extending the FHCDA to other settings. To that end, it directed the NYS Task Force on Life and the Law to make recommendations regarding "whether the FHCDA should be amended to apply to health care decisions in settings other than general hospital and residential health care facilities." Ch. 8, L. 2010, §28.2.

On November 30, 2010, after hearing various views and engaging in a deliberative process, the Task Force issued an initial recommendation regarding extending the FHCDA: it recommended amending the FHCDA to provide surrogates with authority to make decisions on behalf of incapable patients regarding hospice care. See NYS Task Force on Life and the Law, "Recommendations Regarding the Extension of the Family Health Care Decisions Act to Include Hospice." (www.health.state.ny.us/ regulations/taskJorce/docs/20 1 0-12-22_ extension_ of_family _ health_care_decisions _ act.pdt:).

As the Task Force report explained:

The current wording of the FHCDA creates a barrier to the utilization of hospice by terminally ill individuals because the authority it bestows upon surrogates is limited to care provided in hospitals or nursing homes. The FHCDA does not permit a surrogate to elect hospice care for a loved one who is being cared for outside of a covered facility at the time of the election decision. Even when a patient is successfully enrolled in hospice, a surrogate lacks the ability to make decisions about on-going care so long as that care is to be provided outside of a covered facility, for example, where hospice care will be provided in a stand-alone hospice facility or in the home. Therefore, the ability of a patient without decision-making capacity to access hospice care will depend upon where care is currently provided or will be provided going forward. Instead, the focus should be solely on ensuring that the individual's known preferences or best interests are honored at this crucial time.

The addition of hospice also fits well into the structure of the FHCDA as it currently stands, without requiring extensive changes. Hospices are federally certified and highly regulated at the state level. The safeguards and oversight mechanisms in the FHCDA, including the procedures for determining capacity, the procedures for end-of-life decision-making, and the requirements of ethics review committees will translate into hospice settings. Hospices have physicians and other interdisciplinary professionals on staff to fulfill the statutory requirements in these areas, and most hospices have their Own ethics committee, or have access to an ethics committee (e.g., through an affiliated institution or other agreement).

Prior legislative history

None.

Fiscal implications

None.

Effective date

The act will take effect on the sixtieth day after it becomes a law.