Authorizes an attending physician to make decisions regarding hospice on behalf of an incapable adult without a surrogate; repealer

Summary of provisions

Section 1 of the bill amends NY Public Health Law § 2994-g, a section of the Family Health Care Decisions Act (FHCDA) relating to health care decisions for adult patients without surrogates, by adding a new subdivision 7 entitled "Decisions regarding hospice care." New subdivision 5-a sets forth a process for an attending physician to elect hospice for an incapable hospice-eligible adult patient without a surrogate.

The attending physician must make a recommendation in consultation with staff directly responsible for the patient's care, and must base his or her recommendation on the standards for surrogate decisions set forth PHL § 2994d, another section of the FHCDA.

The decision also requires the concurring opinion of a second physician, subject to certain requirements, and the review and approval of the ethics review committee of the general hospital, residential healthcare facility or hospice, as applicable, subject to certain requirements.

Section 2 makes a technical change to repeal paragraph (c) of subdivision 5 of section 2994-g of the Public Health Law which is no longer necessary.

Section 3 provides for an immediate effective date.

Justification

The Family Health Care Decisions Act (Public Health Law Article 29-CC) governs health care decisions for patients who lack capacity and who did not appoint a health care agent. Initially, the FHCDA applied only to patients in hospitals and nursing homes. In 2011, based on recommendations of the NYS Task Force on Life and the' Law, the FHCDA was amended to apply to decisions for hospice patients as well.

Section 2994-g of the FHCDA governs decisions for incapable adult patients who do not have a guardian, family member or friend to act as their surrogate. Specifically, it provides a mechanism for securing decisions regarding (i) routine medical treatment; (ii) major medical treatment decision and (iii) the withholding or withdrawal of life-sustaining treatment.

However, Section 2994-g does not expressly create a means to elect hospice on behalf of hospice-eligible incapable adult patients. Such decisions do not comfortably fall within the statutory categories "routine medical treatment," "major medical decision" or "withdrawal or withholding of life-sustaining treatment."

As a result, isolated, incapable dying adult patients are deprived of the comfort and benefit of hospice care toward the end of life. Health care professionals are dismayed by the inability to provide the type and level of care they would recommend if the patient had a surrogate.

This bill would address that gap by creating a process to secure an election for hospice for a hospice-eligible incapable adult patient.

The process requires:

*a determination if incapacity in accordance with the provisions of the FHCDA

*a recommendation by the attending physician in accordance with the decision-making standards of the FHCDA. Those standards, in addition to including clinical criteria, provide that the decision must be made:

(i) in accordance with the patient's wishes, including the patient's religious and moral beliefs; or

(ii) if the patient's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the patient's best interests .. . . (b) In all cases, the surrogate's assessment of the patient's wishes and best interests shall be patient centered; health care decisions shall be made on an individualized basis for each patient, and shall be consistent with the values of the patient, including the patient's religious and moral beliefs, to the extent reasonably possible.

*a concurring opinion by another physician

*approval by the hospital, nursing home or hospice ethics committee, as applicable.

The physician may also include in the hospice plan of care provisions for the withdrawal or withholding of life-sustaining treatment (e.g., a DNR order), in accordance with the clinical and decision-making standards that would apply to a surrogate decision under the FHCDA. Such orders are often consistent with the hospice election.

This bill will make it possible for hospice-eligible dying isolated incapable patients to be enrolled in hospice programs.

Legislative history

S.7150-A of 2014.

Fiscal implications

None.

Effective date

This act shall take effect immediately.