Provides for the making of health care decisions for people who lack capacity; repealer

Summary of provisions

PHL Article 29-B Orders Not to Resuscitate for Residents of Mental Hygiene Facilities

Section 1 of the bill repeals Article 29-B of the public health law, relating to orders not to resuscitate for residents of mental hygiene facilities.

PHL Article 29-C Health Care Proxies and Agents

Section 2 amends PHL § 2980.4 and .10, and adds subdivision 8-a: to clarify that the provision of nutrition and hydration orally, without reliance on medical treatment, is not "health care" within the meaning of the article, as stated in the Family Health Care Decisions Act (FHCDA), to provide a definition for "Health and social services practitioner," based on the definition in the FHCDA and to add "licensed master social worker" to the definition, to substitute the name, "office for people with developmental disabilities" (hereinafter OPWDD) for the former name, office of mental retardation and developmental disabilities'. (hereinafter, OMRDD).

Section 3 amends PHL § 2981(b) to delete the outdated term "committee" and to insert the correct reference to MHL Article 81.

Section 4 amends the model health care proxy form in PHL § 2981.5(d) to delete a clause relating to agent decisions regarding artificial nutrition and hydration because of the change made in Section 5.

Section 5 amends PHL § 2982.2 to add "physician assistant" to the list of professionals, one of whom an agent must consult with before making a decision. Deletes a clause relating to agent decisions regarding artificial nutrition and hydration to make the decision-making standard consistent with the standard in the FHCDA, allowing a surrogate to make such decisions based on the surrogate's wishes, including the principal's religious and moral beliefs, or if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests.

Section 6 amends PHL § 2983.1 and adds § 2983.2 to make the process for determining incapacity under the health care proxy law more consistent with the process under the Family Health Care Decisions Act. Clarifies that a concurring determination is required only for life-sustaining treatment decisions, even if the determination is based on a patient's mental illness or developmental disability. Changes the qualifications necessary for a professional to determine that a patient lacks capacity as a result of a developmental disability by providing that, for a patient in a hospital, nursing home or hospice, either the attending physician must be or must consult with either a health or social services practitioner qualified by training or experience to make such determination in accordance with written policies adopted by the hospital, or a person who met the previous qualification requirements.

Section 7 amends PHL § 2983.4 (as renumbered by Section 6) to eliminate outdated references to "the conservator for, or committee of' a principal

Section 8 amends PHL § 2991 to substitute OPWDD for OMRDD.

Section 9 amends PHL § 2992 to replace outdated references to "the conservator for, or committee of' a principal with the correct reference to "the guardian" of the principal.

Section 10 amends § 2993 to substitute OPWDD for OMRDD.

PHL Article 29-CC Family Health Care Decisions Act

Section 11 amends three subdivisions in PHL § 2994-a (Definitions). Amends "Health or social services practitioner" to include licensed master social worker," Substitutes OPWDD for OMRDD, Changes "the hospital administrator" to "a hospital administrator."

Section 12 adds PHL § 2994-b.1-a to make the FHCDA applicable to decisions regarding orders not to resuscitate for a patient in an OMH licensed psychiatric hospitals and psychiatric units of general hospitals.

Section 13 amends PHL § 2994-b(3)(a) to change "mental retardation or a developmental disability" to "a developmental disability." Corrects a spelling error.

Section 14 amends PHL § 2994-c.3 to clarify that a concurring determination is required only for a surrogate decision to withdraw or withhold life-sustaining treatment, including for cases in nursing homes, and including cases in which the determination is based on a patient's mental illness or developmental disability. Changes OMRDD to OPWDD. Changes the qualifications necessary for a professional to determine that a patient lacks capacity as a result of a developmental disability. consistent with Section 6.

Section 15 amends PHL § 2994-d.5(a) to add a clinical circumstance in which a surrogate may consent to DNR order: i.e, when there is a determination by the attending physician and a concurring physician that resuscitation would be unsuccessful in restoring cardiac and

respiratory function or that the patient will experience repeated arrest in a short time period before death occurs.

Section 16 amends PHL § 2994-e to clarify that the obligation a hospital has to notify the parents or guardian of an emancipated minor is to make "reasonable efforts" to notify such persons.

Section 17 amends PHL § 2994-f.3 to clarify that the obligation a provider has when a health care agent directs the provision of life-sustaining treatment (i.e., to comply, transfer the patient or seek court review) does not apply when the provider is carrying out a patient's decision made pursuant PHL § 2994-d.3(a)(i.i).

Section 18 amends PHL § 2994-g.5 to add a clinical circumstance in which a DNR order may be entered for a patient who lacks capacity and does not have a surrogate: i.e., when there is a determination by the attending physician and a concurring physician that resuscitation would be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs.

Section 19 amends PHL § 2994-m.4(b)(iv) to clarify that the obligation an ethics committee has to notify certain persons is to make "diligent efforts" to notify such persons. Section 20 amends PHL § 2994-t.2 to substitute OPWDD for OMRDD.

Section 21 amends PHL § 2994-u to direct the commissioner of health to require that a copy of the statement of rights under this article be furnished "to a patient or to the surrogate, or to the parent or guardian of a minor patient, at or prior to admission to the hospital, or within a reasonable time thereafter, and to any person on the surrogate list who requests a copy of such statement from the hospital. The statement shall also be made available to the hospital clinical staff"

Section 22 directs the commissioner of health to revise the statement of rights that hospitals are required to post (known as the Patient's Bill of Rights) by replacing the clause regarding orders not to resuscitate with a statement about a broader range health care decision-making rights.

PHL Article 29-CCC Non-Hospital Orders Not to Resuscitate

Section 23 amends § 2994-aa subdivisions 12 and 13 and adds 14-a: to, substitute OPWDD for OMRDD, to provide that a nonhospital order not to resuscitate also applies to home care services agency personnel and school health personnel,and to define "school health personnel

Section 24 amends PHL § 2994-bb.1 (a) to make the nonhospital DNR provisions applicable to school health personnel.

Section 25 amends PHL § 2994-cc.3, 4 and 5 to clarify when consent to a a nonhospital DNR order is governed by the provisions of the FHCDA. To change "concurrence of a second physician" to "concurrence of a health or social services practitioner." To delete a reference to the now-repealed PHL Article 29-B. To provide that consent to a

nonhospital DNR order by a patient or a surrogate for a patient who is intellectually or otherwise developmentally disabled and is eligible for life-sustaining treatment decisions under SCPA § 1750-b are governed by that section.

Section 26 amends § 2994-dd.2 to delete a reference to the commissioner's obligation to develop a standard DNR bracelet, and to refer to a standard bracelet "or other article", and amends § 2994-dd 6 to allow alternate forms for nonhospital DNR orders in developmental disability services offices.

Section 27 amends PHL § 2994-ff to delete a no-longer applicable cross reference to PHL Article 29B.

Section 28 amends PHL § 2994-gg to substitute the word "article" for the word "section" in two places.

SCPA § 1750-b Health Care Decisions For Persons With Mental Retardation

Section 29 amends the title of SCPA § 1750-b to rename it as "Health care decisions for people with developmental disabilities."

Section 30 amends SCPA § 1750-b.1: to provide that a developmentally disabled person who is determined to have decisional capacity can make his or her own decisions relating to life-sustaining treatment, to provide that a developmentally disabled person who has a valid health care proxy shall have all such decisions made in accordance with the health care proxy law

Section 31 amends SCPA § 1750-b.4(a) to: clarify that the physician who provides an initial or confirming determination of incapacity must have special qualifications related to developmental disabilities only if the attending physician initially determined that the patient lacked capacity because of the developmental disability; change the qualifications necessary for a professional to determine that a patient lacks capacity as a result of a developmental disability, consistent with Section 6.

Section 32 amends SCPA § 1750-b.4(b): to supply a definition of "terminal illness" in place of a no-longer valid cross-reference, to add a clinical circumstance in which a surrogate may consent to DNR order: i.e, when there is a determination by the attending physician and a concurring physician that resuscitation would be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs.

Section 33 amends SCPA § 1750-b.4: to substitute OPWDD for OMRDD, to restore a prior DNR law standards by providing that notification of the facility director (and now MHLS) shall not delay the issuance of a DNR order

Section 34 amends SCPA § 1750-b.4: to provide that in cases where the MHL Art 80 surrogate decision making committee is a patient's guardian, a DNR order may be entered on the basis of medical futility without SDMC involvement., to make the review of DNR orders for

persons residing in OPWDD operated or licensed facilities subject to the standards in PHL Article 29-CCC (Non-Hospital DNR Orders).

Section 35 amends SCPA § 1750-b.5(a) to require that, in cases where an attending physician notifies a facility director or MHLS of a DNR order and provides support for the DNR order, then the order will not be stayed by an objection by the facility director or MHLS unless the objection is accompanied by a basis for objecting, to the DNR order, including clinical support for a clinical objection.

Section 36 amends SCPA § 1750-115(d) to replace a reference to the dispute mediation committee with a reference to the ethics review committee under the FHCDA.

Section 37 is the effective date.

Justification

By enacting Chapter 8 of the Laws of 2010, including the Family Health Care Decisions Act. the Legislature significantly improved the laws in New York relating to decision-making for patients who lack capacity and who do not have a health care agent. Specifically, the FHCDA clarified the authority of a close family member or close friend to consent to treatment for such patients, and allowed such person to direct the withdrawal or withholding of life-sustaining treatment in limited and clearly defined circumstances, based on sound standards.

This bill draws upon growing experience with the FHCDA, and its interaction with other health care decision-making laws. It makes technical, clarifying and coordinating amendments to those laws.

Legislative history

A.7343 (2011) included many of these provisions.

Fiscal implications

None.

Effective date

This act shall take effect ninety days after the date on which this act shall have become a law. The amendments to article 29-C of the public health law shall apply to decisions made pursuant to health care proxies created prior to this act becoming law as well as those created thereafter.