Relates to disputes between a surrogate and a hospital or individual health care provider; cites when the requirement of a provider to provide life-sustaining treatment following a surrogate's directive does not apply.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A747
SPONSOR: Pretlow TITLE OF BILL:
An act to amend the public health law, in relation to disputes between a
surrogate and a hospital or individual health care provider
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 of 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 clarifies that the provisions relating to disputes between a
surrogate and a hospital or individual health care provider do not apply
when the hospital or individual health care provider is carrying out a
patient's prior decision that meet standards set forth in the FHCDA.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends PHL section 2994-f to clarify that the provisions
relating to disputes between a surrogate and a hospital or individual
health care provider do not apply when the hospital or individual health
care provider is carrying out a patient's prior decision that meet stan-
dards set forth in PHL § 2994-d.
Section 2 is the effective date: immediately.
JUSTIFICATION:
This amendment ensures that a surrogate's objection will not prohibit a
provider from following the clearly expressed prior wishes of a patient.
The Family Health Care Decisions Act (FHCDA) now states that if a surro-
gate directs the provision of life-sustaining treatment, but the hospi-
tal or individual health care provider "does not wish to provide such
treatment," the hospital or individual provider nevertheless must either
comply with the surrogate's decision, transfer the patient or seek court
review.
The provision is appropriate as applied to a dispute between the surro-
gate and the provider. However, it does not clearly or appropriately
apply to disputes between a surrogate and the patient himself, as
evidenced by the patient's clear prior decision. Indeed, it would be
constitutionally and ethically problematic to apply this clause to over-
ride a patient's clear prior decision.
Notably, the FHCDA provides that a provider does not need to seek the
consent of a surrogate when a patient has made a decision about proposed
health care in accordance with certain requirements. PHL.
2994-d.3(a)(ii). Accordingly, this amendment clarifies that the
provision relating to a dispute between the surrogate and the provider
does not apply "when the hospital or individual health care provider is
carrying out a patient's decision made pursuant to paragraph (ii) of
subdivision 3 of section twenty-nine hundred ninety-four-d of this arti-
cle."
LEGISLATIVE HISTORY: 2021-2011 A1577 referred to Health
2019-2020 A3283 referred to health
01/03/18 A4019 referred to codes
05/14/14 referred to health
05/20/14 reported referred to codes
06/16/14 amend and recommit to codes
06/16/14 print number 9670a
06/18/14 reported referred to rules
01/20/15 A2775 referred to health
04/28/15 A2775 reported referred to codes
01/06/16 A2775 referred to health
05/10/16 A2775 reported referred to codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
747
2023-2024 Regular Sessions
IN ASSEMBLY
January 11, 2023
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to disputes between a
surrogate and a hospital or individual health care provider
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 2994-f of the public health law,
2 as amended by chapter 708 of the laws of 2019, is amended to read as
3 follows:
4 3. Notwithstanding the provisions of this section or subdivision one
5 of section twenty-nine hundred ninety-four-q of this article, if a
6 surrogate directs the provision of life-sustaining treatment, the denial
7 of which in reasonable medical judgment would be likely to result in the
8 death of the patient, a hospital or individual health care provider that
9 does not wish to provide such treatment shall nonetheless comply with
10 the surrogate's decision pending either transfer of the patient to a
11 willing hospital or individual health care provider, or judicial review
12 in accordance with section twenty-nine hundred ninety-four-r of this
13 article. This requirement shall not apply when the hospital or individ-
14 ual health care provider is carrying out a patient's decision made
15 pursuant to subparagraph (ii) of paragraph (a) of subdivision three of
16 section twenty-nine hundred ninety-four-d of this article; provided that
17 the surrogate in such instance retains the right to request ethics
18 committee review of the case pursuant to section twenty-nine hundred
19 ninety-four-m of this article, or judicial review in accordance with
20 section twenty-nine hundred ninety-four-r of this article.
21 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02271-01-3
