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S02045 Summary:

BILL NOS02045
 
SAME ASNo Same As
 
SPONSORBONACIC
 
COSPNSR
 
MLTSPNSR
 
Add Art 28-F 2899-d - 2899-p, Pub Health L
 
Relates to patient self-determination at end of life; authorizes a physician with a bona fide physician-patient relationship with a patient with a terminal illness or condition to prescribe a lethal dose of the medication to be self-administered; defines terminal illness or condition to be an illness or condition which can reasonably be expected to cause death within six months, whether or not treatment is provided; provides immunity to health care providers.
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S02045 Actions:

BILL NOS02045
 
01/11/2017REFERRED TO HEALTH
02/28/2017RECOMMIT, ENACTING CLAUSE STRICKEN
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S02045 Memo:

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S02045 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2045
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                    January 11, 2017
                                       ___________
 
        Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        AN ACT to amend the public health law, in relation to patient  self-det-
          ermination at end of life
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known and may be cited  as  the  "patient
     2  self-determination act".
     3    §  2. The public health law is amended by adding a new article 28-F to
     4  read as follows:
     5                                ARTICLE 28-F
     6                                AID IN DYING
     7  Section 2899-d. Definitions.
     8          2899-e. Written request for medication.
     9          2899-f. Written request signed and witnessed.
    10          2899-g. Attending physician responsibilities.
    11          2899-h. Counseling referral.
    12          2899-i. Medical record documentation requirements.
    13          2899-j. Residency requirement.
    14          2899-k. Protection of health care providers and facilities.
    15          2899-l. Relation to other laws and contracts.
    16          2899-m. Safe disposal of unused medications.
    17          2899-n. Death certificate.
    18          2899-o. Reporting.
    19          2899-p. Severability.
    20    § 2899-d. Definitions. As used in this article:
    21    1. "Adult" means an individual who  is  twenty-one  years  of  age  or
    22  older.
    23    2. "Attending physician" means the physician who has primary responsi-
    24  bility for the care of the patient and treatment of the patient's termi-
    25  nal disease.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01103-02-7

        S. 2045                             2

     1    3.  "Capacity"  means  the  ability  to  understand and appreciate the
     2  nature and consequences of health care decisions, including the benefits
     3  and risks of and alternatives to any proposed health care, and to  reach
     4  an  informed  decision  and  to  communicate  health care decisions to a
     5  physician,  including  communication  through  persons familiar with the
     6  patient's manner of communicating if those persons are available.
     7    4. "Counseling" means one or more consultations as necessary between a
     8  state licensed psychiatrist  or  psychologist  and  a  patient  for  the
     9  purpose  of determining that the patient has capacity and is not suffer-
    10  ing from a psychiatric or psychological disorder or  depression  causing
    11  impaired judgment.
    12    5.  "Health  care facility" means a general hospital, nursing home, or
    13  residential health care facility  as  defined  in  section  twenty-eight
    14  hundred one of this chapter.
    15    6.  "Health  care  provider" means a person or entity licensed, certi-
    16  fied, or authorized by law to administer health care or dispense medica-
    17  tion in the ordinary course of business or practice of a profession.
    18    7. "Impaired judgment" means that a person lacks the ability to under-
    19  stand and appreciate the nature and consequences of  health  care  deci-
    20  sions,  including  the  benefits  and  risks  of and alternatives to any
    21  proposed health care, and to reach an informed decision.
    22    8. "Medication" means medication capable of ending and to be used with
    23  the intent of ending the patient's life, including any ancillary medica-
    24  tion intended to minimize the patient's discomfort.
    25    9. "Palliative care" means health care treatment, including  interdis-
    26  ciplinary  end-of-life  care,  and consultation with patients and family
    27  members, to prevent or relieve pain and suffering  and  to  enhance  the
    28  patient's quality of life, including hospice care under article forty of
    29  this chapter.
    30    10.  "Patient" means a person who is twenty-one years of age or older,
    31  a resident of New York state, and under the care of a physician.
    32    11. "Physician" means an individual licensed to practice  medicine  in
    33  New York state.
    34    12.  "Terminal  illness  or  condition"  means an illness or condition
    35  which can reasonably be expected  to  cause  death  within  six  months,
    36  whether or not treatment is provided.
    37    §  2899-e. Written request for medication. 1. An adult who has capaci-
    38  ty, is a resident of this state, and has been determined by the  attend-
    39  ing  physician  and, if applicable, consulting physician to be suffering
    40  from a terminal illness or condition, may make a written request for and
    41  consent to self-administer medication for the purpose of ending  his  or
    42  her life in accordance with this article.
    43    2. No person shall qualify under this article solely because of age or
    44  disability.
    45    § 2899-f. Written request signed and witnessed. 1. A request for medi-
    46  cation  under  this article shall be signed and dated by the patient and
    47  witnessed by at least two  individuals  who,  in  the  presence  of  the
    48  patient,  attest  that  to  the  best  of their knowledge and belief the
    49  patient has capacity, is acting voluntarily, and is not being coerced to
    50  sign the request. The department may develop  a  suggested  form  for  a
    51  request under this article.
    52    2. One of the witnesses shall be a person who is not:
    53    (a) a relative of the patient by blood, marriage or adoption;
    54    (b)  a  person who at the time the request is signed would be entitled
    55  to any portion of the estate of the patient upon death under any will or
    56  by operation of law; or

        S. 2045                             3
 
     1    (c) an owner, operator or employee of a health care facility where the
     2  patient is receiving treatment or is a resident.
     3    3.  The  patient's  attending  physician or, if applicable, consulting
     4  physician at the time the request is signed shall not be a witness.
     5    § 2899-g.  Attending  physician  responsibilities.  1.  The  attending
     6  physician shall:
     7    (a) make the determination of whether a patient has a terminal illness
     8  or condition, has capacity, and has made the request voluntarily;
     9    (b) request that the patient demonstrate New York state residency;
    10    (c)  refer  the  patient for counseling, if appropriate, under section
    11  twenty-eight hundred ninety-nine-h of this article;
    12    (d) provide  information  and  counseling  under  section  twenty-nine
    13  hundred ninety-seven-c of this chapter; and
    14    (e)  fulfill  the medical record documentation requirements of section
    15  twenty-eight hundred ninety-nine-i of this article.
    16    2. Subject to section twenty-eight hundred ninety-nine-h of this arti-
    17  cle, the attending  physician  who  makes  the  determination  that  the
    18  patient has a terminal illness or condition, has capacity and has made a
    19  request for medication as provided in section twenty-eight hundred nine-
    20  ty-nine-e  of  this  article, may personally, or by direction to another
    21  physician,  prescribe,  dispense  or  order  appropriate  medication  in
    22  accordance  with  the  patient's  request under this article, and at the
    23  patient's request, facilitate the filling of the prescription and deliv-
    24  ery of the medication to the patient.
    25    3. In accordance with the direction of the prescribing, dispensing  or
    26  ordering  physician  and  the  consent  of  the patient, the patient may
    27  administer the medication to himself or herself. A health  care  profes-
    28  sional  shall  not  administer the medication to the patient but, acting
    29  within the scope of his or  her  lawful  practice,  may  facilitate  the
    30  patient in self-administering the medication.
    31    §  2899-h.  Counseling  referral.  If  in the opinion of the attending
    32  physician a patient may be suffering from a psychiatric or psychological
    33  disorder or depression causing impaired judgment, such  physician  shall
    34  refer  the patient for counseling. No medication to end a patient's life
    35  shall be prescribed, dispensed or ordered until  the  person  performing
    36  the  counseling  determines  that  the  patient  is not suffering from a
    37  psychiatric or psychological disorder  or  depression  causing  impaired
    38  judgment and has capacity.
    39    §  2899-i.  Medical  record  documentation requirements. The following
    40  shall be documented or filed in the patient's medical record:
    41    1. all oral requests by a patient for medication to  end  his  or  her
    42  life;
    43    2.  all written requests by a patient for medication to end his or her
    44  life;
    45    3. the attending physician's diagnosis  and  prognosis,  and  determi-
    46  nation whether the patient has capacity and is acting voluntarily;
    47    4.  a report of the outcome and determinations made during counseling,
    48  if performed; and
    49    5. a note by the attending physician indicating whether  all  require-
    50  ments under this article have been met and indicating the steps taken to
    51  carry   out   the  request,  including  a  notation  of  the  medication
    52  prescribed, dispensed or ordered.
    53    § 2899-j. Residency requirement. Only requests made by New York  state
    54  residents under the provisions of this article shall be granted. Factors
    55  demonstrating  New  York  state residency shall include but shall not be
    56  limited to:

        S. 2045                             4

     1    1. Possession of a New York state driver's license;
     2    2. Registration to vote in New York state;
     3    3. Evidence that the person owns or leases property in New York state;
     4  or
     5    4. Filing of a New York state tax return for the most recent tax year.
     6    §  2899-k.  Protection  of health care providers and facilities.  1. A
     7  physician, pharmacist, other health care professional  or  other  person
     8  shall  not  be  subject  to  civil or criminal liability or professional
     9  disciplinary action, and shall not be subject to discipline, suspension,
    10  loss of license, loss of privileges, or other penalty by any health care
    11  facility or health care provider, for taking any  reasonable  good-faith
    12  action or refusing to act under this article, including: (a) engaging in
    13  discussions with a patient relating to the risks and benefits of end-of-
    14  life  options  in the circumstances described in this article, (b) being
    15  present when a patient self-administers medication, (c) refraining  from
    16  acting  to  prevent the patient from self-administering such medication,
    17  or (d) refraining from acting to resuscitate or rescue the patient after
    18  he or she self-administers such medication. However, paragraphs (c)  and
    19  (d)  of  this  subdivision  shall  not  apply where there are reasonable
    20  grounds to believe,  under  the  circumstances,  that  the  patient  has
    21  rescinded  his  or  her request or consent to self-administer medication
    22  under this article or communicates a desire that the  lethal  action  of
    23  the medication be reversed.
    24    2.  A physician, nurse, pharmacist, or other person shall not be under
    25  any duty, by law or contract, to participate in the provision of medica-
    26  tion to a patient under this article.
    27    3. A private health care facility may prohibit the  self-administering
    28  of  medication  under  the article while the patient is being treated or
    29  residing in the health care facility if:
    30    (a) such prescribing, dispensing, ordering  or  self-administering  is
    31  contrary to a formally adopted policy of such facility that is expressly
    32  based  on  sincerely  held  religious  beliefs  or  sincerely held moral
    33  convictions central to the facility's operating principles;
    34    (b) such facility has informed the patient of such policy prior to  or
    35  upon admission, if reasonably possible; and
    36    (c)  if  the  patient requests, the patient is transferred promptly to
    37  another health care facility that is  reasonably  accessible  under  the
    38  circumstances  and willing to permit the prescribing, dispensing, order-
    39  ing and self-administering of medication under this article with respect
    40  to the patient.
    41    4. A health care facility that  prohibits  the  self-administering  of
    42  medication  under  this  article  while  the patient is being treated or
    43  residing in the health care facility under this section may  prohibit  a
    44  physician  from prescribing, dispensing or ordering medication for self-
    45  administering while the patient is being  treated  or  residing  in  the
    46  health care facility, provided the health care facility has notified the
    47  physician  in  writing  of its policy to prohibit such actions. Notwith-
    48  standing subdivision one of this section,  any  person  who  violates  a
    49  policy  established  by a health care facility under this section may be
    50  subject to sanctions otherwise allowable under law, contract and facili-
    51  ty policy.
    52    § 2899-l. Relation to other laws and contracts.  1. (a) A patient  who
    53  self-administers  medication  under this article shall not be considered
    54  to be a person who is suicidal, and self-administering medication  under
    55  this article shall not be deemed to be suicide, for any purpose.

        S. 2045                             5
 
     1    (b)  Action  taken  in  accordance  with  this  article  shall  not be
     2  construed for any  purpose  to  constitute  suicide,  assisted  suicide,
     3  attempted  suicide, promoting a suicide attempt, mercy killing, or homi-
     4  cide under the law, including as an accomplice or  accessory  or  other-
     5  wise.
     6    2. A request by a patient to his or her attending physician to provide
     7  medication  under  this  article shall not, by itself, provide the basis
     8  for the appointment of a guardian or conservator.
     9    3. (a) No provision in a contract, will or  other  agreement,  whether
    10  written  or  oral,  to  the  extent the provision would affect whether a
    11  person may make or rescind a request for medication or  take  any  other
    12  action under this article, shall be valid.
    13    (b)  No  obligation  owing  under any contract shall be conditioned or
    14  affected by the making or rescinding of a request by a person for  medi-
    15  cation or taking any other action under this article.
    16    4.  A person and his or her beneficiaries shall not be denied benefits
    17  under a life insurance policy for actions taken in accordance with  this
    18  article.
    19    5. An insurer shall not provide any information in communications made
    20  to  a  person  about  the  availability of medication under this article
    21  absent a request by such person or by his  or  her  attending  physician
    22  upon  the  request  of  such person. Any communication shall not include
    23  both the denial of treatment and information as to the  availability  of
    24  medication under this article.
    25    6.  The  sale,  procurement,  or issue of any professional malpractice
    26  insurance policy or the rate charged for the policy shall not be  condi-
    27  tioned  upon or affected by whether the insured does or does not take or
    28  participate in any action under this article.
    29    § 2899-m. Safe disposal of unused medications.  The  department  shall
    30  make  regulations  providing for the safe disposal of unused medications
    31  prescribed, dispensed or ordered under this article.
    32    § 2899-n. Death certificate. In the event that a  patient  dies  as  a
    33  result  of  medication  self-administered  under this article, the death
    34  certificate shall indicate that the cause of death  was  the  underlying
    35  terminal  illness  or condition of the patient. However, where there are
    36  reasonable grounds to believe, under the circumstances, that the patient
    37  rescinded his or her request or consent  to  self-administer  medication
    38  under  this  article  or communicated a desire that the lethal action of
    39  the medication be reversed, and the patient nevertheless died  from  the
    40  self-administration  of  the  medication, the self-administration of the
    41  medication may be listed as the cause of death.
    42    § 2899-o. Reporting. 1.  The  commissioner  shall  annually  review  a
    43  sample  of  the  records  maintained  under section twenty-eight hundred
    44  ninety-nine-i of this article.  The  department  may  adopt  regulations
    45  establishing  reporting  requirements for physicians taking action under
    46  this article to determine utilization and compliance with this  article.
    47  The  information  collected under this section shall be confidential and
    48  shall be collected in a manner that protects the privacy of the patient,
    49  his or her family, and any health care  provider  acting  in  connection
    50  with such patient under this article.
    51    2.  The department shall prepare a report annually containing relevant
    52  data regarding utilization and compliance with this  article  and  shall
    53  post such report on its website.
    54    § 2899-p. Severability. If any provision of this article or any appli-
    55  cation  of  any  provision of this article, is held to be invalid, or to
    56  violate or be inconsistent with any  federal  law  or  regulation,  that

        S. 2045                             6
 
     1  shall not affect the validity or effectiveness of any other provision of
     2  this article, or of any other application of any provision of this arti-
     3  cle,  which  can  be given effect without that provision or application;
     4  and  to  that  end,  the provisions and applications of this article are
     5  severable.
     6    § 3. This act shall take effect immediately.
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S02045 LFIN:

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