Relates to health care decisions for persons with developmental disabilities

*SDMIA 1 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 *SDMIA 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 7, makes amendments Surrogate's Court Procedure Act section 1750-b, relating to life-sustaining treatment decisions for developmentally disabled persons.

Summary of provisions

Section 1 amends the title and subdivisions 1 - 4 of SCPA § 1750-b:

*to rename the section as "Health care decisions for persons with developmental disabilities;"

*to provide that the term "developmental disability" will have the meaning set forth in MFIL § 1.03(22).

*to change "mentally retarded person" to "person with a developmental disability" throughout;

*to add intubation and mechanical ventilation to the examples of "life-sustaining treatments" (§ 1750- b.1);

*to change "commission on quality of care and advocacy for persons with disabilities" to "justice center for the protection of persons with special needs." (§ 1750-b.1(a));

*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 (§ 1750-b.1(d));

*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 (§ 1750-b.1(e));

*to replace the term "artificially provided nutrition and hydration" with "nutrition and hydration provided by means of medical treatment." (§ 1750-B.2(b)(iv));

*to add a definition of "terminal condition" (§ 1750-b.4(b)(i)(A));

*to replace OMRDD with OPWDD throughout, and commissioner of mental retardation and developmental disabilities with commissioner of developmental disabilities throughout (e.g., § 1750- b.4(e)(i)(C));

*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 (§ 1750-b.4(e)(ii));

*to make the review of DNR orders for persons residing in OPWDD operated or licensed facilities subject to the standards in PHL 2994-dd. (§ 1750-b.4(0);

*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. (§ 1750-b.5(a)) to replace a reference to the dispute mediation committee with a reference to the ethics review committee under the FHCDA. (§ 1750-b.5(d)).

Section 2 is the effective date.

Justification

This bill draws upon growing experience with SCPA § 1750-b, the Health Care Decisions Act for Mentally Retarded Persons, and its interaction with the Family Health Care Decisions Act and other health care decision-making laws. It makes technical and coordinating amendments, as well as some important substantive improvements, to SCPA § 1750-b.

The amendment to § 1750-b.5(a) would affect the authority of Mental Hygiene Legal Service (MHLS), to compel the suspension of a DNR order, which it acquired in 2010. Specifically it would limit such authority to those cases in which MHLS has a specific, stated basis for objecting to the DNR order. It would similarly limit the authority of a mental hygiene facility director.

As background, under the former DNR Law (PHL Art. 29-B) if a patient was in or had been transferred from a mental hygiene facility, notice of a DNR order had to be given to the facility director, but not to MHLS, prior to entry of the order. It also required that the DNR order be suspended if the facility director objected, but gave no such authority to MHLS. However, as a result of Ch. 8, L.2010, SCPA§ 1750-b became applicable to DNR decisions for developmentally disabled patients. SCPA § § 1750-b.4(d) requires prior notice of decisions to withhold life-sustaining treatment, including consent to DNR orders,

to MHLS as well as the facility director and others, and give such parties the power to suspend the order by objecting. In effect, when SCPA § 1750-b became applicable to DNR orders, MHLS acquired the authority to routinely suspend a DNR order while it reviews the case.

This provision would retain the new requirement of notice of DNR orders to MHLS (as well as the longstanding requirement of notice to the facility director). But it would constrain their authority to suspend such orders routinely: it would provide that a facility director or MHLS's objection to a DNR will not trigger a suspension of the order unless the facility director or MHLS provides a basis for its objection, including clinical support for a clinical objection.

This approach would restore the intended limited role for MHLS -- as an agency that will intervene when it detects evidence of an improper decision, as opposed to acting as a co-equal DNR decision-maker or as a DNR approval agency.

This bill is part of a series of bills, informally referred to the Surrogate Decision-Making Improvement Acts. Other SDMIAs amend SCPA 1750-b, among other laws, with respect to the determination of incapacity and the medical criteria for DNR orders.

Legislative history

S.7157 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.