NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2150
SPONSOR: Gottfried (MS) TITLE OF BILL: An act to amend the public health law, in relation to
providing for a decision regarding hospice care on behalf of a hospice-
eligible incapable adult patient without a surrogate; and to repeal
paragraph (c) of subdivision 5 of section 2994-g of such law relating
thereto
PURPOSE: This bill addresses a gap in the Family Health Care Deci-
sions Act (PHL Article 29-cc) by authorizing decisions regarding hospice
for hospice-eligible incapable adult patients without surrogates.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends NY Public Health Law § 2994-g, a section of
the Family Health Care Decisions Act (FHCDA) relating to health care
decisions for adult patients without surrogates, by adding a new subdi-
vision 7 entitled "Decisions to elect hospice." New subdivision 7 sets
forth a process for an attending physician to elect hospice for an inca-
pable hospice-eligible adult patient without a surrogate.
The attending physician must make a recommendation in consultation with
staff directly responsible for the patient's care, and must base his or
her recommendation on the standards for surrogate decisions set forth
PHL § 2994-d, another section of the FHCDA.
The decision also requires the concurring opinion of a second physician,
subject to certain requirements, and the review and approval of the
ethics review committee of the general hospital, residential healthcare
facility or hospice, as applicable, subject to certain requirements.
Section 2 makes a technical change to repeal paragraph (c) of subdivi-
sion 5 of section 2994-g of the Public Health Law which is no longer
necessary.
Section 3 provides for an immediate effective date.
JUSTIFICATION: The Family Health Care Decisions Act (Public Health
Law Article 29-CC) governs health care decisions for patients who lack
capacity and who did not appoint a health care agent. Initially, the
FHCDA applied only to patients in hospitals and nursing homes. In 2011,
based on recommendations of the NYS Task Force on Life and the Law, the
FHCDA was amended to apply to decisions for hospice patients as well.
Section 2994-g of the FHCDA governs decisions for incapable adult
patients who do not have a guardian, family member or friend to act as
their surrogate. Specifically, it provides a mechanism for securing
decisions regarding (i) routine medical treatment; (ii) major medical
treatment decision and (iii) the withholding or withdrawal of life-sus-
taining treatment.
However, Section 2994-g does not expressly create a means to elect
hospice on behalf of hospice-eligible incapable adult patients. Such
decisions do not comfortably fall within the statutory categories
"routine medical treatment," "major medical decision" or "withdrawal or
withholding of life-sustaining treatment."
As a result, isolated, incapable dying adult patients are deprived of
the comfort and benefit of hospice care toward the end of life. Health
care professionals are dismayed by the inability to provide the type and
level of care they would recommend if the patient had a surrogate.
This bill would address that gap by creating a process to secure an
election for hospice for a hospice-eligible incapable adult patient.
The process requires:
* a determination if incapacity in accordance with the provisions of the
FHCDA
* a recommendation by the attending physician in accordance with the
decision-making standards of the FHCDA. Those standards, in addition to
including clinical criteria, provide that the decision must be made:
(i) in accordance with the patient's wishes, including the patient's
religious and moral beliefs; or
(ii) if the patient's wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with the patient's
best interests .. . . (b) In all cases, the surrogate's assessment of
the patient's wishes and best interests shall be patient centered;
health care decisions shall be made on an individualized basis for each
patient, and shall be consistent with the values of the patient, includ-
ing the patient's religious and moral beliefs, to the extent reasonably
possible.
* a concurring opinion by another physician
* approval by the hospital, nursing home or hospice ethics committee, as
applicable.
The physician may also include in the hospice plan of care provisions
for the withdrawal or withholding of life-sustaining treatment (e.g., a
DNR order), in accordance with the clinical and decision-making stand-
ards that would apply to a surrogate decision under the FHCDA. Such
orders are often consistent with the hospice election.
This bill will make it possible for hospice-eligible dying isolated
incapable patients to be enrolled in hospice programs.
LEGISLATIVE HISTORY: 2014: A9709 - reported to Rules
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
2150
2015-2016 Regular Sessions
IN ASSEMBLY
January 15, 2015
___________
Introduced by M. of A. GOTTFRIED, GOODELL, RIVERA -- read once and
referred to the Committee on Health
AN ACT to amend the public health law, in relation to providing for a
decision regarding hospice care on behalf of a hospice-eligible inca-
pable adult patient without a surrogate; and to repeal paragraph (c)
of subdivision 5 of section 2994-g 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. Section 2994-g of the public health law is amended by
2 adding a new subdivision 5-a to read as follows:
3 5-a. Decisions regarding hospice care. An attending physician shall be
4 authorized to make decisions regarding hospice care and execute appro-
5 priate documents for such decisions (including a hospice election form)
6 for an adult patient under this section who is hospice eligible in
7 accordance with the following requirements.
8 (a) The attending physician shall make decisions under this section in
9 consultation with staff directly responsible for the patient's care, and
10 shall base his or her decisions on the standards for surrogate decisions
11 set forth in subdivisions four and five of section twenty-nine hundred
12 ninety-four-d of this article;
13 (b) There is a concurring opinion as follows:
14 (i) in a general hospital, at least one other physician designated by
15 the hospital must independently determine that he or she concurs that
16 the recommendation is consistent with such standards for surrogate deci-
17 sions;
18 (ii) in a residential health care facility, the medical director of
19 the facility, or a physician designated by the medical director, must
20 independently determine that he or she concurs that the recommendation
21 is consistent with such standards for surrogate decisions; provided that
22 if the medical director is the patient's attending physician, a differ-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02741-01-5
A. 2150 2
1 ent physician designated by the residential health care facility must
2 make this independent determination; or
3 (iii) in settings other than a general hospital or residential health
4 care facility, the medical director of the hospice, or a physician
5 designated by the medical director, must independently determine that he
6 or she concurs that the recommendation is medically appropriate and
7 consistent with such standards for surrogate decisions; provided that if
8 the medical director is the patient's attending physician, a different
9 physician designated by the hospice must make this independent determi-
10 nation; and
11 (c) The ethics review committee of the general hospital, residential
12 health care facility or hospice, as applicable, including at least one
13 physician who is not the patient's attending physician, or a court of
14 competent jurisdiction, must review the decision and determine that it
15 is consistent with such standards for surrogate decisions.
16 § 2. Paragraph (c) of subdivision 5 of section 2994-g of the public
17 health law is REPEALED.
18 § 3. This act shall take effect immediately.
