Rpld Art 29-B, 2994-aa sub 12, 2994-cc sub 5, amend Pub Health L, generally; amd 1750-b, SCPA
Relates to orders not to resuscitate for and the applicability of the family health care decisions act to residents of mental hygiene facilities; relates to do not resuscitate orders and decisions regarding life-sustaining treatment and hospice care in in-patient psychiatric hospitals.
STATE OF NEW YORK
________________________________________________________________________
7507
2023-2024 Regular Sessions
IN SENATE
June 2, 2023
___________
Introduced by Sen. BROUK -- (at request of the Office of Mental Health)
-- read twice and ordered printed, and when printed to be committed to
the Committee on Rules
AN ACT to amend the public health law and the surrogate's court proce-
dure act, in relation to orders not to resuscitate for and decisions
regarding life-sustaining treatment and hospice care; and to repeal
article 29-B, subdivision 12 of section 2994-aa and subdivision 5 of
section 2994-cc of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 29-B of the public health law is REPEALED.
2 § 2. Subdivision 18 of section 2994-a of the public health law, as
3 amended by chapter 167 of the laws of 2011, is amended to read as
4 follows:
5 18. "Hospital" means a general hospital, a hospital as defined in
6 subdivision ten of section 1.03 of the mental hygiene law, a residential
7 health care facility, or hospice.
8 § 3. The opening paragraph and paragraph (c) of subdivision 3 of
9 section 2994-b of the public health law, the opening paragraph as
10 amended by chapter 479 of the laws of 2022 and paragraph (c) as amended
11 by chapter 708 of the laws of 2019, are amended to read as follows:
12 Prior to seeking or relying upon a health care decision by a surrogate
13 for a patient under this article, if the attending practitioner has
14 reason to believe that the patient has a history of receiving services
15 for [a] an intellectual or developmental disability; the patient is in a
16 hospital as defined in subdivision ten of section 1.03 of the mental
17 hygiene law; it reasonably appears to the attending practitioner that
18 the patient has [a] an intellectual or developmental disability; or the
19 practitioner in a general hospital has reason to believe that the
20 patient has been temporarily transferred from a mental hygiene facility
21 operated or licensed by the office of mental health or the office for
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07353-01-3
S. 7507 2
1 people with developmental disabilities, then such physician, nurse prac-
2 titioner or physician assistant shall make reasonable efforts to deter-
3 mine whether [paragraphs] paragraph (a), (b) or (c) of this subdivision
4 [are] is applicable:
5 (c) If a health care decision for a patient cannot be made under para-
6 graphs (a) or (b) of this subdivision, but consent for [the] a routine
7 or major medical treatment decision may be provided pursuant to the
8 mental hygiene law or regulations of the office of mental health or the
9 office for people with developmental disabilities, then the decision
10 shall be governed by such statute or regulations and not by this arti-
11 cle.
12 § 4. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 3 of
13 section 2994-c of the public health law, as amended by chapter 708 of
14 the laws of 2019, are amended to read as follows:
15 (ii) In a general hospital or hospital as defined in subdivision ten
16 of section 1.03 of the mental hygiene law, a health or social services
17 practitioner employed by or otherwise formally affiliated with the
18 facility must independently determine whether an adult patient lacks
19 decision-making capacity if the surrogate's decision concerns the with-
20 drawal or withholding of life-sustaining treatment.
21 (iii) With respect to decisions regarding hospice care for a patient
22 in a general hospital, hospital as defined in subdivision ten of section
23 1.03 of the mental hygiene law, or residential health care facility, the
24 health or social services practitioner must be employed by or otherwise
25 formally affiliated with the general hospital, hospital as defined in
26 subdivision ten of section 1.03 of the mental hygiene law, or residen-
27 tial health care facility.
28 § 5. Paragraph (c) of subdivision 4 of section 2994-c of the public
29 health law, as added by chapter 8 of the laws of 2010, is amended to
30 read as follows:
31 (c) if the patient is in a hospital as defined in subdivision ten of
32 section 1.03 of the mental hygiene law or was transferred from a mental
33 hygiene facility, to the director of the mental hygiene facility and to
34 the mental hygiene legal service under article forty-seven of the mental
35 hygiene law.
36 § 6. Subparagraph (ii) of paragraph (a) and paragraph (c) of subdivi-
37 sion 5 of section 2994-d of the public health law, as amended by chapter
38 708 of the laws of 2019, are amended to read as follows:
39 (ii) The provision of treatment would involve such pain, suffering or
40 other burden that it would reasonably be deemed inhumane or extraor-
41 dinarily burdensome under the circumstances and the patient has an irre-
42 versible or incurable condition other than mental illness or a develop-
43 mental disability, as determined by an attending practitioner with the
44 independent concurrence of another physician, nurse practitioner or
45 physician assistant to a reasonable degree of medical certainty and in
46 accord with accepted medical standards.
47 (c) In a general hospital or hospital as defined in subdivision ten of
48 section 1.03 of the mental hygiene law, if the attending practitioner
49 objects to a surrogate's decision, under subparagraph (ii) of paragraph
50 (a) of this subdivision, to withdraw or withhold nutrition and hydration
51 provided by means of medical treatment, the decision shall not be imple-
52 mented until the ethics review committee, including at least one physi-
53 cian, nurse practitioner or physician assistant who is not directly
54 responsible for the patient's care, or a court of competent jurisdic-
55 tion, reviews the decision and determines that it meets the standards
56 set forth in this subdivision and subdivision four of this section.
S. 7507 3
1 § 7. Subparagraph (iii) of paragraph (b) of subdivision 5-a of section
2 2994-g of the public health law, as amended by chapter 708 of the laws
3 of 2019, is amended to read as follows:
4 (iii) in settings other than a general hospital or residential health
5 care facility, the medical director of the hospice or hospital as
6 defined in subdivision ten of section 1.03 of the mental hygiene law, or
7 a physician designated by the medical director, must independently
8 determine that he or she concurs that the recommendation is medically
9 appropriate and consistent with such standards for surrogate decisions;
10 provided that if the medical director is the patient's attending physi-
11 cian, a different physician designated by the hospice or hospital as
12 defined in subdivision ten of section 1.03 of the mental hygiene law,
13 must make this independent determination; and
14 § 8. Paragraph (c) of subdivision 5-a of section 2994-g of the public
15 health law, as separately amended by chapters 622 and 708 of the laws of
16 2019, is amended to read as follows:
17 (c) The ethics review committee of the general hospital, hospital as
18 defined in subdivision ten of section 1.03 of the mental hygiene law,
19 residential health care facility or hospice, as applicable, including at
20 least one physician, nurse practitioner or physician assistant who is
21 not the patient's attending practitioner, or a court of competent juris-
22 diction, must review the decision and determine that it is consistent
23 with such standards for surrogate decisions. This requirement shall not
24 apply to decisions about routine medical treatment. Such decisions shall
25 be governed by subdivision three of this section.
26 § 9. Section 2994-l of the public health law, as amended by chapter
27 708 of the laws of 2019, is amended to read as follows:
28 § 2994-l. Interinstitutional transfers. 1. If a patient with an order
29 to withhold or withdraw life-sustaining treatment is transferred from a
30 mental hygiene facility to a hospital or from a hospital to a different
31 hospital, any such order or plan shall remain effective until an attend-
32 ing practitioner first examines the transferred patient, whereupon an
33 attending practitioner must either:
34 [1.](a) Issue appropriate orders to continue the prior order or plan.
35 Such orders may be issued without obtaining another consent to withhold
36 or withdraw life-sustaining treatment pursuant to this article; or
37 [2.](b) Cancel such order, if the attending practitioner determines
38 that the order is no longer appropriate or authorized. Before canceling
39 the order the attending practitioner shall make reasonable efforts to
40 notify the person who made the decision to withhold or withdraw treat-
41 ment and the hospital staff directly responsible for the patient's care
42 of any such cancellation. If such notice cannot reasonably be made prior
43 to canceling the order or plan, the attending practitioner shall make
44 such notice as soon as reasonably practicable after cancellation.
45 2. Orders to withhold or withdraw life-sustaining treatment shall
46 remain effective and no affirmative action by a general hospital shall
47 be required pursuant to this section where a patient is transferred
48 within a general hospital between a medical unit and a ward, wing, unit
49 or other part of the general hospital which is operated for the purpose
50 of providing services for persons with mental illness pursuant to an
51 operating certificate issued by the commissioner of mental health.
52 § 10. Paragraph (a) of subdivision 4 of section 2994-m of the public
53 health law, as amended by chapter 708 of the laws of 2019, is amended to
54 read as follows:
55 (a) These procedures are required only when: (i) the ethics review
56 committee is convened to review a decision by a surrogate to withhold or
S. 7507 4
1 withdraw life-sustaining treatment for: (A) a patient in a residential
2 health care facility pursuant to paragraph (b) of subdivision five of
3 section twenty-nine hundred ninety-four-d of this article; (B) a patient
4 in a general hospital or hospital as defined in subdivision ten of
5 section 1.03 of the mental hygiene law, pursuant to paragraph (c) of
6 subdivision five of section twenty-nine hundred ninety-four-d of this
7 article; or (C) an emancipated minor patient pursuant to subdivision
8 three of section twenty-nine hundred ninety-four-e of this article; or
9 (ii) when a person connected with the case requests the ethics review
10 committee to provide assistance in resolving a dispute about proposed
11 care. Nothing in this section shall bar health care providers from first
12 striving to resolve disputes through less formal means, including the
13 informal solicitation of ethical advice from any source.
14 § 11. Paragraph (c) of subdivision 4 of section 2994-m of the public
15 health law, as amended by chapter 708 of the laws of 2019, is amended to
16 read as follows:
17 (c) When an ethics review committee is convened to review decisions
18 regarding hospice care for a patient in a general hospital, hospital as
19 defined in subdivision ten of section 1.03 of the mental hygiene law, or
20 residential health care facility, the responsibilities of this section
21 shall be carried out by the ethics review committee of the general
22 hospital, hospital as defined in subdivision ten of section 1.03 of the
23 mental hygiene law, or residential health care facility, provided that
24 such committee shall invite a representative from hospice to partic-
25 ipate.
26 § 12. Subdivision 12 of section 2994-aa of the public health law is
27 REPEALED and subdivisions 13 and 13-a are renumbered subdivisions 12 and
28 13.
29 § 13. Subdivision 5 of section 2994-cc of the public health law is
30 REPEALED.
31 § 14. Section 2994-ff of the public health law, as added by chapter 8
32 of the laws of 2010, is amended to read as follows:
33 § 2994-ff. Interinstitutional transfer. If a patient with a nonhospi-
34 tal order not to resuscitate is admitted to a hospital, the order shall
35 be treated as an order not to resuscitate for a patient transferred from
36 another hospital, and shall be governed by article twenty-nine-CC of
37 this chapter[, except that any such order for a patient admitted to a
38 mental hygiene facility shall be governed by article twenty-nine-B of
39 this chapter].
40 § 15. Subparagraph (i) of paragraph (b) of subdivision 4 of section
41 1750-b of the surrogate's court procedure act, as amended by chapter 198
42 of the laws of 2016, is amended as follows:
43 (i) the person who is intellectually disabled has a medical condition
44 as follows:
45 A. a terminal condition, [as defined in subdivision twenty-three of
46 section twenty-nine hundred sixty-one of the public health law] which
47 for the purpose of this section means an illness or injury from which
48 there is no recovery, and which reasonably can be expected to cause
49 death within one year; or
50 B. permanent unconsciousness; or
51 C. a medical condition other than such person's intellectual disabili-
52 ty which requires life-sustaining treatment, is irreversible and which
53 will continue indefinitely; and
54 § 16. Paragraph (d) of subdivision 5 of section 1750-b of the surro-
55 gate's court procedure act, as amended by chapter 198 of the laws of
56 2016, is amended as follows:
S. 7507 5
1 (d) Dispute mediation. In the event of an objection pursuant to this
2 subdivision, at the request of the objecting party or person or entity
3 authorized to act as a guardian under this section, except a surrogate
4 decision making committee established pursuant to article eighty of the
5 mental hygiene law, such objection shall be referred to a [dispute medi-
6 ation system] ethics review committee, established pursuant to section
7 two thousand nine hundred [seventy-two] ninety-four-m of the public
8 health law or similar entity for mediating disputes in a hospice, such
9 as a patient's advocate's office, hospital chaplain's office or ethics
10 committee, as described in writing and adopted by the governing authori-
11 ty of such hospice, for non-binding mediation. In the event that such
12 dispute cannot be resolved within seventy-two hours or no such mediation
13 entity exists or is reasonably available for mediation of a dispute, the
14 objection shall proceed to judicial review pursuant to this subdivision.
15 The party requesting mediation shall provide notification to those
16 parties entitled to notice pursuant to paragraph (a) of this subdivi-
17 sion.
18 § 17. This act shall take effect December 31, 2023.
