Relates to conforming and improving the process for determining incapacity

*SDMIA I Technical / Minor Amendments

*SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients in Mental Hygiene Facilities

*SDMIA 3 Determining Patient Incapacity

*SDM1A 4 Decisions by a Health Care Agent About Artificial Nutrition and Hydration

*SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision

*SDMIA 6 Restore Medical Futility as a Basis for a DNR Order

*SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally Disabled Persons

This bill, SDMIA 3, amends Public Health Law Articles 29-C, 29-CC and 29-CCC, and Surrogate Court Procedure Act § 1750-b, to conform and improve procedures for determining patient incapacity to make health care decisions.

Summary of specific provisions

Amendments to PHL Article 29-C Health Care Proxies and Agents

Section 1 amends PHL Section 2983 to renumber subdivisions 2 7 in order to make room for a new subdivision 2.

Section 2:

* Amends PHI. § 2983.1 to make the language and process for determining incapacity under the health care proxy law more consistent with the language and 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.

* Adds § 2983.2 to change 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, nursing home or hospice, or a person who met the previous qualification requirements

Amendments to PHL Article 29-CC Family Health Care Decisions Act

Section 3 amends PHI, § 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. The section also changes the qualifications needed to determine that a patient lacks capacity as a result of a developmental disability, consistent with Section 2.

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

Section 4 amends PHI, § 2994-cc.3. and 4 to eliminate redundant language and to change "concurrence of a second physician" to "concurrence of a health or social services practitioner."

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

Section 5 amends SCPA § 1750-b.4(a) to:

* clarify that the attending physician is providing an "initial" determination of incapacity, not a confirming determination;

* clarify that either the attending physician or the concurring physician 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 in a hospital, nursing home or hospice lacks capacity as a result of a developmental disability, consistent with Section 2.

Sections 6, 7 and 8 make technical conforming changes to sections 2982, 2984 and 2983 of the public health law.

Effective Date

Section 9 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 and coordinating amendments and other improvements to those laws with respect to determining the incapacity of patients to make health care decisions.

One important improvement relates o the qualifications of professionals who can determine the incapacity of a patient based on developmental disability. Hospitals and nursing homes have found it extremely difficult to locate professionals with the special qualifications now required by this law for a determining the incapacity of a patient with a developmental disability - especially in urgent or off-hours situations. This amendment would let those types of providers establish the necessary qualifications for that service, just as they determine qualifications for other professional services in their institutions and programs.

Prior legislative history

S. 7153 of 2014; S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A. Gottfried)(2013) included all of these provisions, as well as other 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.