What's happening
This bill restores "medical futility" as a basis for issuing do not resuscitate (DNR) orders, including for patients without surrogates.
Why it matters
Restores a clear, medically-defined standard for DNR decisions. By reintroducing "medical futility" (as determined by two physicians) as a legal basis for DNR orders, the bill provides clarity and consistency for healthcare providers who must decide whether resuscitation is appropriate in cases where it is highly unlikely to succeed.
Impacts patients without surrogates or those unable to make decisions. The bill enables physicians to issue DNR orders for incapacitated patients who lack a surrogate decision-maker, based on strict medical futility criteria, potentially preventing unnecessary and invasive interventions in end-of-life situations.
Addresses challenges with current law’s ambiguity. The current Family Health Care Decisions Act (FHCDA) and Surrogate's Court Procedure Act (SCPA) lack specific standards for medically futile resuscitation, making it difficult to act in clear-cut cases; this amendment allows for more straightforward application in situations where resuscitation offers no real prospect of benefit.
Specifically includes and protects vulnerable populations. The bill ensures that individuals with intellectual or developmental disabilities are covered by the same medical futility standard, aiming to prevent futile interventions in those populations while still requiring rigorous medical review and concurrence.
Albany, before your first meeting.
Every bill that moved yesterday, summarized in a sentence and ranked by impact. The Albany Scorecard follows on Sundays.
Free. Unsubscribe in one click. Want alerts on specific bills? Create an account.
Who cares
Headline styles
Restore Medical Futility DNR
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to health
- Referred to health
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Restore DNR for Medical Futility
Assembly Floor Calendar · Sponsor Richard Gottfried
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5834
2019-2020 Regular Sessions
IN SENATE
May 15, 2019
Introduced by Sen. RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Health
AN ACT to amend the public health law and the surrogate's court procedure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resuscitate order for a patient without a surrogate
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Legislative findings. Under New York's former do not resuscitate (hereinafter "DNR") law, article 29-B of the public health law, a surrogate could consent to a DNR order if the patient met any one of four clinical criteria, one of which was a finding by two physicians that resuscitation was "medically futile," which was defined to mean that resuscitation "will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs." The former DNR law also allowed a DNR order to be entered for a patient who did not have a surrogate on that basis. That law applied to all patients, including developmentally disabled patients.
In 2010, the former DNR law was superseded by the Family Health Care Decisions Act (hereinafter "FHCDA") which established standards for the withdrawal or withholding of a broad range of life-sustaining treatments. Accordingly, the FHCDA did not have a standard specifically relating to medically futile resuscitation. Similarly, Surrogate's Court Procedure Act (hereinafter "SPCA") §1750-b does not have a standard specifically relating to medically futile resuscitation for developmentally disabled patients.
The legislature finds that the broader FHCDA and SPCA §1750-b standards are difficult to apply to situations in which resuscitation would be medically futile. Accordingly, this bill restores the former DNR
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03447-01-9
S. 5834 2
law's medical futility standard as an alternative basis for writing a DNR order under the FHCDA and under SCPA §1750-b.
§ 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of section 2994-d of the public health law, as amended by chapter 430 of the laws of 2017, are amended and a new subparagraph (iii) is added to read as follows:
(i) Treatment would be an extraordinary burden to the patient and an attending physician or attending nurse practitioner determines, with the independent concurrence of another physician or nurse practitioner, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) the patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B) the patient is permanently unconscious; [or]
(ii) The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician or attending nurse practitioner with the independent concurrence of another physician or nurse practitioner to a reasonable degree of medical certainty and in accord with accepted medical standards[.]; or
(iii) With respect to a decision to enter an order not to resuscitate, an attending physician determines, with the independent concurrence of a second physician, to a reasonable degree of medical certainty, that in the event of a cardiac or respiratory arrest, 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.
§ 3. Paragraph (b) of subdivision 5 of section 2994-g of the public health law, as amended by chapter 430 of the laws of 2017, is amended to read as follows:
(b) If the attending physician or attending nurse practitioner, with independent concurrence of a second physician or nurse practitioner designated by the hospital, determines to a reasonable degree of medical certainty that:
(i) (A) life-sustaining treatment offers the patient no medical benefit because the patient will die imminently, even if the treatment is provided; and
[(ii)] (B) the provision of life-sustaining treatment would violate accepted medical standards, then such treatment may be withdrawn or withheld from an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninetyfour-c of this article, without judicial approval. This [paragraph] subparagraph shall not apply to any treatment necessary to alleviate pain or discomfort; or
(ii) in the event of cardiac or respiratory arrest, resuscitation will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs, then an order not to resuscitate may be entered for an adult patient who has been determined to lack decision-making capacity pursuant to section twenty-nine hundred ninety-four-c of this article, without judicial approval.
§ 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of section 1750-b of the surrogate's court procedure act, as amended by chapter 198 of the laws of 2016, are amended to read as follows:
S. 5834 3
(i) the person who is intellectually disabled has a medical condition as follows:
A. a terminal condition[, as defined in subdivision twenty-three of section twenty-nine hundred sixty-one of the public health law] which shall mean an illness or injury from which there is no recovery, and which can reasonably be expected to cause death within one year; or
B. permanent unconsciousness; or
C. a medical condition other than such person's intellectual disability which requires life-sustaining treatment, is irreversible and which will continue indefinitely; [and] or
D. in the case of a decision to enter an order not to resuscitate, that in the event of cardiac or respiratory arrest such 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; and
(ii) except in the case of a decision to enter an order not to resuscitate based on clause D of subparagraph (i) of this paragraph, the life-sustaining treatment would impose an extraordinary burden on such person, in light of:
A. such person's medical condition, other than such person's intellectual disability; and
B. the expected outcome of the life-sustaining treatment, notwithstanding such person's intellectual disability; and
§ 5. This act shall take effect on the ninetieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the public health law and the surro- gate's court procedure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resuscitate order for a patient without a surrogate
Purpose or general idea of bill
This is one of a series of seven bills, informally referred to as the "Surrogate Decision-Making Improvement Acts." The bills make technical/minor, clarifying and coordinating amendments and other improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8, Laws or 2010) and other laws that govern health care decisions, includ- ing life-sustaining treatment decisions, for patients who lack deci- sion-making capacity.
This bill restores the medical futility standard from former PHL Art. 29-B as a basis for surrogate consent to a Do Not Resuscitate (DNR) order and for a DNR order for a patient without a surrogate.
Read the full memo (657 words)
Summary of specific provisions
Section 1 sets forth the legislative intent.
Section 2 amends PHL § 2994-d(5)(a) to restore one of the bases in the former DNR Law (PHL Art. 29-B) for when a surrogate may consent to DNR order. The former DNR Law provided that a DNR order may be entered 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 (hereinafter referred to as "medical futility"). Chapter 430 of 2017 added that such determi- nations may be made by attending nurse practitioners, and this bill conforms to that law.
Section 3 amends PHL § 2994-d.5(b) to restore medical futility as a basis for a DNR order for a patient who does not have a surrogate.
Section 4 amends SCPA § 1750-b.4(b): to restore medical futility as a basis for surrogate consent to a DNR order for a developmentally disa- bled person.
Section 5 is the effective date: ninetieth day after it shall become a law.
Justification
For over twenty years under the former DNR law (PHL Art 29-B), a surro- gate could consent to a DNR order if the patient met any one of four clinical criteria, one of which was a finding by two physicians that resuscitation "will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs." The former DNR law also allowed a DNR order to be entered for a patient who did not have a surrogate on that basis. That law applied to all patients, including developmentally disa- bled patients.
The FHCDA, in contrast, establishes standards for the withdrawal or withholding of a broad range of life-sustaining treatment. Accordingly it does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made the FHCDA apply to DNR orders for most patient in hospitals and nursing homes.
Similarly SCPA § 1750-b does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made SCPA § 1750-b apply to DNR orders for developmentally disabled patients. This loss of the long-established "medical futility" grounds for a DNR was inadvertent.
Experience has shown that the broader FHCDA and SCPA § 1750-b standards, especially the standards for patients who do not have surrogates, can be difficult to apply to decisions about resuscitation. This bill would restore the former DNR law's medical futility standard as an alternative basis for writing a DNR order under the FHCDA and under SCPA § 1750-b, with the addition of nurse practitioners to conform with chapter 430 of 2017 which added them as eligible practitioners to execute DNRs.
Prior legislative history
2014: S. 7156A (Hannon)
Fiscal implications
None.
Effective date
This act shall take effect on the ninetieth day after it shall become a law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.