NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8536
SPONSOR: Gunther TITLE OF BILL:
An act to amend the public health law and the surrogate's court proce-
dure act, in relation to orders not to resuscitate
PURPOSE::
To make changes clarifying which facilities an order not to resuscitate
will apply to, update terminology, and maintain consistency with inter-
institutional transfers and orders not to resuscitate.
SUMMARY OF PROVISIONS::
This bill amends Chapter 742 of the Laws of 2023 by clarifying which
facilities the orders not to resuscitate will apply to, including both
psychiatric hospitals and psychiatric units of general hospitals. This
amendments also updates terminology used to refer to people with intel-
lectual or developmental disabilities, adding the term "an intellectu-
al," as well as clarifying that one of the instances in which a practi-
tioner must check whether Mental Hygiene Law decision-making laws, when
a patient is temporarily transferred from an OPWDD licensed or operated
facility. This would also ensure that there is notification to a mental
hygiene service if there is a determination of incapacity for a patient
in a psychiatric hospital or psychiatric unit of a general hospital.
This bill also amends a provision in the family health care decision act
(FHCDA) relating to interinstitutional transfers, consistent with the
repealed Public Health Law 29-B, that an order to withdraw or withhold
life-sustaining treatment remains effective upon a transfer from a
general hospital's medical unit to its psychiatric unit or vice-versa.
Other technical provisioni related to terminology, or to maintain
consistency with the facilities listed is also included
JUSTIFICATION::
Prior to 2010, PHL Art. 29-B governed DNR orders in hospitals, nursing
homes, mental hygiene facilities and elsewhere. Ch. 8, L. 2010 (i)
replaced the DNR Law with the FHCDA in hospitals and nursing homes, (ii)
amended PHL Art. 29-B to make it applicable only to residents of mental
hygiene facilities, i.e., psychiatric hospitals, psychiatric units of
general hospitals, and OPWDD-operated developmental centers, and (iii)
created PHL Art. 29-CCC Non Hospital Orders Not To Resuscitate, to cover
all other settings.
It soon became clear that there is no need for a separate DNR law for
residents of mental hygiene facilities. First, DNR orders for residents
of OPWDD-operated developmental centers were already governed by SCPA §
1750-b, making PHL Art. 29-B redundant. Second, DNR orders in psychiat-
ric hospitals and general hospital mental health units were more appro-
priately governed by the provisions in the FHCDA. Moreover variations in
DNR procedures and standards - especially between the procedures and
standards in hospital medical units and hospital mental health units
have become a source of confusion and complexity.
The NYS Task Force on Life and the Law, in a 2016 Report, called for
this amendment. It wrote: "(I)t has become apparent that there is no
need for a separate law for DNR orders in psychiatric hospitals and
units, and its existence is a source of complexity and confusion..."
This amendment maintains the repeal of Article 29-B of the Public Health
Law, reflecting this recommendations and creating consistency between
facility types, ensuring there is no confusion in treating a patient due
to the type of facility they are in. The amendments make clear that the
family health care decision act will apply to orders not to resuscitate
in both psychiatric hospitals and psychiatric units of general hospitals
by including a citation to hospitals governed by Mental Hygiene Law
1.03. These amendments also update terminology, including individuals
with intellectual or developmental disabilities, and clarify practices
when a patient is temporarily transferred from an OPWDD licensed or
operated facility. These clarifications extend to inter-facility trans-
fers, from a psychiatric unit to a general hospital medical unit or
vice-versa, so that orders cannot be deemed ineffective purely due to a
transfer. These necessary updates will reflect how orde rs not to resus-
citate are acted on in practice and will accomplish the goals recom-
mended by the NYS Task Force on Life and the Law.
LEGISLATIVE HISTORY:
This is a new bill.
BUDGET IMPLICATIONS:
None noted.
EFFECTIVE DATE:
This act shall take effect on the same date and in the same manner as a
chapter of the laws of 2023 amending the public health law relating to
orders not to resuscitate, as proposed in legislative bills numbers S.
2930 and A. 4332, takes effect
STATE OF NEW YORK
________________________________________________________________________
8536
IN ASSEMBLY
January 8, 2024
___________
Introduced by M. of A. GUNTHER -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law and the surrogate's court proce-
dure act, in relation to orders not to resuscitate
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 3 of section 2994-b of
2 the public health law, as amended by chapter 479 of the laws of 2022, is
3 amended to read as follows:
4 Prior to seeking or relying upon a health care decision by a surrogate
5 for a patient under this article, if the attending practitioner has
6 reason to believe that the patient has a history of receiving services
7 for [a] an intellectual or developmental disability; it reasonably
8 appears to the attending practitioner that the patient has [a] an intel-
9 lectual or developmental disability; or the practitioner in a general
10 hospital has reason to believe that the patient has been temporarily
11 transferred from a mental hygiene facility operated or licensed by the
12 office of mental health or the office for people with developmental
13 disabilities, then such physician, nurse practitioner or physician
14 assistant shall make reasonable efforts to determine whether [para-
15 graphs] paragraph (a), (b) or (c) of this subdivision [are] is applica-
16 ble:
17 § 2. Paragraph (c) of subdivision 4 of section 2994-c of the public
18 health law, as added by chapter 8 of the laws of 2010, is amended to
19 read as follows:
20 (c) if the patient is in a hospital as defined in subdivision ten of
21 section 1.03 of the mental hygiene law or was transferred from a mental
22 hygiene facility, to the director of the mental hygiene facility and to
23 the mental hygiene legal service under article forty-seven of the mental
24 hygiene law.
25 § 3. Section 2994-l of the public health law, as amended by chapter
26 708 of the laws of 2019, is amended to read as follows:
27 § 2994-l. Interinstitutional transfers. 1. If a patient with an order
28 to withhold or withdraw life-sustaining treatment is transferred from a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05243-02-4
A. 8536 2
1 mental hygiene facility to a hospital or from a hospital to a different
2 hospital, any such order or plan shall remain effective until an attend-
3 ing practitioner first examines the transferred patient, whereupon an
4 attending practitioner must either:
5 [1.] (a) Issue appropriate orders to continue the prior order or plan.
6 Such orders may be issued without obtaining another consent to withhold
7 or withdraw life-sustaining treatment pursuant to this article; or
8 [2.] (b) Cancel such order, if the attending practitioner determines
9 that the order is no longer appropriate or authorized. Before canceling
10 the order the attending practitioner shall make reasonable efforts to
11 notify the person who made the decision to withhold or withdraw treat-
12 ment and the hospital staff directly responsible for the patient's care
13 of any such cancellation. If such notice cannot reasonably be made prior
14 to canceling the order or plan, the attending practitioner shall make
15 such notice as soon as reasonably practicable after cancellation.
16 2. Orders to withhold or withdraw life-sustaining treatment shall
17 remain effective and no affirmative action by a general hospital shall
18 be required pursuant to this section where a patient is transferred
19 within a general hospital between a medical unit and a ward, wing, unit,
20 or other part of the general hospital which is operated for the purpose
21 of providing services for persons with mental illness pursuant to an
22 operating certificate issued by the commissioner of mental health.
23 § 4. Subdivision 5 of section 2994-cc of the public health law, as
24 amended by a chapter of the laws of 2023 amending the public health law
25 relating to orders not to resuscitate, as proposed in legislative bills
26 numbers S. 2930 and A. 4332, is amended to read as follows:
27 5. Consent by a patient or a surrogate for a patient in a residential
28 facility operated or licensed by the office of mental health, other than
29 a hospital as defined in section 1.03 of the mental hygiene law, shall
30 be governed by this article. Consent by a patient who is intellectually
31 or otherwise developmentally disabled and is eligible for life-sustain-
32 ing treatment decision pursuant to section seventeen hundred fifty-b of
33 the surrogate's court procedure act shall be governed by that section.
34 § 5. Subparagraph (i) of paragraph (b) of subdivision 4 of section
35 1750-b of the surrogate's court procedure act, as amended by chapter 198
36 of the laws of 2016, is amended to read as follows:
37 (i) the person who is intellectually disabled has a medical condition
38 as follows:
39 A. a terminal condition, [as defined in subdivision twenty-three of
40 section twenty-nine hundred sixty-one of the public health law] which
41 for the purpose of this section means an illness or injury from which
42 there is no recovery, and which reasonably can be expected to cause
43 death within one year; or
44 B. permanent unconsciousness; or
45 C. a medical condition other than such person's intellectual disabili-
46 ty which requires life-sustaining treatment, is irreversible and which
47 will continue indefinitely; and
48 § 6. Paragraph (d) of subdivision 5 of section 1750-b of the surro-
49 gate's court procedure act, as amended by chapter 198 of the laws of
50 2016, is amended to read as follows:
51 (d) Dispute mediation. In the event of an objection pursuant to this
52 subdivision, at the request of the objecting party or person or entity
53 authorized to act as a guardian under this section, except a surrogate
54 decision making committee established pursuant to article eighty of the
55 mental hygiene law, such objection shall be referred to [a dispute medi-
56 ation system] an ethics review committee, established pursuant to
A. 8536 3
1 section two thousand nine hundred [seventy-two] ninety-four-m of the
2 public health law or similar entity for mediating disputes in a hospice,
3 such as a patient's advocate's office, hospital chaplain's office or
4 ethics committee, as described in writing and adopted by the governing
5 authority of such hospice, for non-binding mediation. In the event that
6 such dispute cannot be resolved within seventy-two hours or no such
7 mediation entity exists or is reasonably available for mediation of a
8 dispute, the objection shall proceed to judicial review pursuant to this
9 subdivision. The party requesting mediation shall provide notification
10 to those parties entitled to notice pursuant to paragraph (a) of this
11 subdivision.
12 § 7. This act shall take effect on the same date and in the same
13 manner as a chapter of the laws of 2023 amending the public health law
14 relating to orders not to resuscitate, as proposed in legislative bills
15 numbers S. 2930 and A. 4332, takes effect.
