A09549 Summary:

BILL NO    A09549 

SAME AS    SAME AS S07157

SPONSOR    Gunther (MS)

COSPNSR    Gottfried

MLTSPNSR   

Amd S1750-b, SCPA

Relates to health care decisions for persons with developmental disabilities.
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A09549 Actions:

BILL NO    A09549 

05/06/2014 referred to judiciary
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A09549 Votes:

There are no votes for this bill in this legislative session.
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A09549 Memo:

BILL NUMBER:A9549

TITLE  OF BILL:   An act to amend the surrogate's court procedure act,
in relation to making technical and coordinating amendments and  other
improvements   regarding   health  care  decisions  for  persons  with
developmental disabilities

PURPOSE OF 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,
including  life-sustaining  treatment decisions, for patients who lack
decision-making capacity.

This bill makes amendments Surrogate's  Court  Procedure  Act  section
1750-b,   relating   to   life-sustaining   treatment   decisions  for
developmentally disabled persons.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the title and subdivisions 1 - 4 of SCPA S 1750-b:

*to rename the section as "Health  care  decisions  for  persons  with
developmental disabilities;"

*to  provide  that  the  term "developmental disability" will have the
meaning set forth in MHL S 1.03(22).

*to change "mentally retarded person" to "person with a  developmental
disability" throughout;

*to  add  intubation  and  mechanical  ventilation  to the examples of
"life-sustaining treatments" (S 1750-b.1);

*to change "commission on quality of care  and  advocacy  for  persons
with  disabilities"  to  "justice center for the protection of persons
with special needs." (S 1750-b.1(a));

*to provide that a developmentally disabled person who  is  determined
to have decisional capacity can make his or her own decisions relating
to life-sustaining treatment (S 1750-b.1(d));

*to  provide  that  a  developmentally disabled person who has a valid
health care proxy shall have all such  decisions  made  in  accordance
with the health care proxy law (S 1750-b.1(e));

*to  replace  the term "artificially provided nutrition and hydration"
with "nutrition and hydration provided by means of medical  treatment"
(S 1750-B.2(b)(iv));

*to add a definition of "terminal condition" (S 1750-b.4(b)(i)(A));


*to  replace  OMRDD  with OPWDD throughout, and commissioner of mental
retardation  and  developmental  disabilities  with  commissioner   of
developmental disabilities throughout (e.g., S 1750- 13.4(e)(0(C));

*to restore a prior DNR law standard by providing that notification of
the facility director (and now MI-ILS) shall not delay the issuance of
a DNR order (S 1750-b.4(e)(ii));

*to  make  the  review  of  DNR  orders  for persons residing in OPWDD
operated or licensed facilities subject to  the  standards  in  PHL
2994-dd. (S 1750-b.4(0);

*to  require  that,  in  cases where an attending physician notifies a
facility director or MHLS of a DNR order and provides support for  the
DNR  order,  then  the order will not be stayed by an objection by the
facility director or MHLS unless the objection  is  accompanied  by  a
basis for objecting to the DNR order, including clinical support for a
clinical  objection.  (S  1750-b.5(a)).  to replace a reference to the
dispute mediation committee with a  reference  to  the  ethics  review
committee under the FHCDA. (S 1750-b.5(d)).

Section 4 is the effective date: ninety days after it becomes a law.

JUSTIFICATION:

This bill draws upon growing experience with SCPA S 1750-b, the Health
Care  Decisions Act for Mentally Retarded Persons, and its interaction
with the Family Health  Care  Decisions  Act  and  other  health  care
decision-making  laws. It makes technical and coordinating amendments,
as well as some important substantive improvements, to SCPA S 1750-b.

The amendment to S 1750-b.5(a) would affect the  authority  of  Mental
Hygiene Legal Service (MHLS), to compel the suspension of a DNR order,
which  it acquired in 2010. Specifically it would limit such authority
to those cases  in  which  MHLS  has  a  specific,  stated  basis  for
objecting  to the DNR order. It would similarly limit the authority of
a mental hygiene facility director.

As background, under the former DNR Law (PHL Art. 29-B) if  a  patient
was  in or had been transferred from a mental hygiene facility, notice
of a DNR order had to be given to the facility director,  but  not  to
MHLS, prior to entry of the order. It also required that the DNR order
be  suspended  if  the  facility  director  objected, but gave no such
authority to MHLS. However, as a result of Ch. 8, L.2010, SCPAS 1750-b
became  applicable  to  DNR  decisions  for  developmentally  disabled
patients.  SCPA S .S 1750-b.4(d) requires prior notice of decisions to
withhold life-sustaining treatment, including consent to  DNR  orders,
to  MHLS  as  well  as the facility director and others, and give such
parties the power to suspend the order by objecting. In  effect,  when
SCPA  S  1750-b  became  applicable  to  DNR orders, MHLS acquired the
authority to routinely suspend a DNR order while it reviews the case.

This provision would retain the  new  requirement  of  notice  of  DNR
orders  to  MHLS (as well as the longstanding requirement of notice to
the facility director). But it  would  constrain  their  authority  to
suspend  such  orders  routinely:  it  would  provide  that a facility
director or MHLS's objection to a DNR will not trigger a suspension of


the order unless the facility director or MHLS provides  a  basis  for
its objection, including clinical support for a clinical objection.

This  approach  would restore the intended limited role for MHLS -- as
an agency that will intervene when it detects evidence of an  improper
decision,  as opposed to acting as a co-equal DNR decision-maker or as
a DNR approval agency.

This bill is part of a series of bills,  informally  referred  to  the
Surrogate Decision-Making Improvement Acts. Other SDIVITAs amend SCPA

S  1750-b,  among  other  laws,  with  respect to the determination of
incapacity and the medical criteria for DNR orders.

PRIOR LEGISLATIVE HISTORY:

2013: A.7371 reported referred to codes.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect ninety days after the date  on  which  this
act shall have become a law.
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A09549 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         9549

                                 I N  A S S E M B L Y

                                      May 6, 2014
                                      ___________

       Introduced  by  M. of A. GUNTHER, GOTTFRIED -- read once and referred to
         the Committee on Judiciary

       AN ACT to amend the surrogate's court  procedure  act,  in  relation  to
         making  technical  and  coordinating amendments and other improvements
         regarding health care decisions for persons with  developmental  disa-
         bilities

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Section 1750-b of the surrogate's court procedure  act,  as
    2  added  by  chapter  500 of the laws of 2002, subdivision 1 as amended by
    3  chapter 105 of the laws of 2007, the opening paragraph,  paragraphs  (a)
    4  and  (b)  of subdivision 1 and the opening paragraph of subdivision 4 as
    5  amended by chapter 8 of the laws of 2010, subparagraph (i) of  paragraph
    6  (a)  and  clause A of subparagraph (i) of paragraph (e) of subdivision 4
    7  as amended by section 18 of part J of chapter 56 of the  laws  of  2012,
    8  and  paragraph  (d) of subdivision 5 as added by chapter 262 of the laws
    9  of 2008, is amended to read as follows:
   10  S 1750-b. Health care decisions for [mentally retarded persons]  PERSONS
   11              WITH DEVELOPMENTAL DISABILITIES
   12    1.  Scope  of  authority. AS USED IN THIS SECTION, THE TERMS "DEVELOP-
   13  MENTAL DISABILITY" AND "DEVELOPMENTALLY DISABLED" SHALL HAVE THE MEANING
   14  SET FORTH IN SUBDIVISION  TWENTY-TWO  OF  SECTION  1.03  OF  THE  MENTAL
   15  HYGIENE LAW. Unless specifically prohibited by the court after consider-
   16  ation  of  the  determination,  if  any,  regarding a [mentally retarded
   17  person's] PERSON WITH A  DEVELOPMENTAL  DISABILITY'S  capacity  to  make
   18  health  care  decisions,  which is required by section seventeen hundred
   19  fifty of this article, the guardian of such person appointed pursuant to
   20  section seventeen hundred fifty of this article shall have the authority
   21  to make any and all health care decisions, as defined by subdivision six
   22  of section twenty-nine hundred eighty  of  the  public  health  law,  on
   23  behalf  of  the  [mentally  retarded person] PERSON WITH A DEVELOPMENTAL
   24  DISABILITY that such person could make if such person had capacity. Such
   25  decisions may include decisions to withhold or withdraw  life-sustaining
   26  treatment.  For  purposes  of  this section, "life-sustaining treatment"

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13652-03-4
       A. 9549                             2

    1  means medical treatment, including cardiopulmonary resuscitation , INTU-
    2  BATION  AND/OR  MECHANICAL  VENTILATION  and  nutrition  and   hydration
    3  provided  by means of medical treatment, which is OR WOULD BE sustaining
    4  life  functions and without which, according to reasonable medical judg-
    5  ment, the patient will  die  within  a  relatively  short  time  period.
    6  Cardiopulmonary  resuscitation  is presumed to be life-sustaining treat-
    7  ment without the necessity of a medical judgment by an attending  physi-
    8  cian.  The  provisions  of  this  article  are not intended to permit or
    9  promote suicide, assisted suicide or euthanasia; accordingly, nothing in
   10  this section shall be construed to permit a guardian to consent  to  any
   11  act  or omission to which the [mentally retarded] person WITH A DEVELOP-
   12  MENTAL DISABILITY could not consent if such person had capacity.
   13    (a) For the purposes of making a  decision  to  withhold  or  withdraw
   14  life-sustaining  treatment  pursuant  to  this section, in the case of a
   15  person for whom no guardian  has  been  appointed  pursuant  to  section
   16  seventeen  hundred fifty or seventeen hundred fifty-a of this article, a
   17  "guardian" shall also mean a family member of  a  person  who  [(i)  has
   18  mental  retardation, or (ii)] has a developmental disability, as defined
   19  in section 1.03 of the mental hygiene law, which  [(A)  includes  mental
   20  retardation,  or  (B)]  results  in [a similar] AN impairment of general
   21  intellectual functioning or adaptive behavior so  that  such  person  is
   22  incapable  of  managing himself or herself, and/or his or her affairs by
   23  reason of such developmental disability. Qualified family members  shall
   24  be  included  in  a  prioritized list of said family members pursuant to
   25  regulations established by the commissioner of [mental retardation  and]
   26  developmental  disabilities. Such family members must have a significant
   27  and ongoing involvement in a person's life  so  as  to  have  sufficient
   28  knowledge  of  their  needs and, when reasonably known or ascertainable,
   29  the person's wishes, including moral and religious beliefs. In the  case
   30  of a person who was a resident of the former Willowbrook state school on
   31  March  seventeenth,  nineteen  hundred seventy-two and those individuals
   32  who were in community care status on that date and subsequently returned
   33  to Willowbrook or a related facility, who are fully represented  by  the
   34  consumer  advisory board and who have no guardians appointed pursuant to
   35  this article or have no qualified family members to make  such  a  deci-
   36  sion,  then  a "guardian" shall also mean the Willowbrook consumer advi-
   37  sory board. A decision of such family member or the Willowbrook consumer
   38  advisory board to withhold or withdraw life-sustaining  treatment  shall
   39  be  subject  to  all of the protections, procedures and safeguards which
   40  apply to the decision of a guardian to withhold  or  withdraw  life-sus-
   41  taining treatment pursuant to this section.
   42    In the case of a person for whom no guardian has been appointed pursu-
   43  ant  to  this article or for whom there is no qualified family member or
   44  the Willowbrook consumer advisory board available to make such  a  deci-
   45  sion,  a  "guardian" shall also mean, notwithstanding the definitions in
   46  section 80.03 of the mental hygiene  law,  a  surrogate  decision-making
   47  committee,  as  defined in article eighty of the mental hygiene law. All
   48  declarations and procedures, including expedited procedures,  to  comply
   49  with this section shall be established by regulations promulgated by the
   50  [commission  on  quality of care and advocacy for persons with disabili-
   51  ties] JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS, AS
   52  ESTABLISHED BY ARTICLE TWENTY OF THE EXECUTIVE LAW.
   53    (b) Regulations establishing the prioritized list of qualified  family
   54  members required by paragraph (a) of this subdivision shall be developed
   55  by  the commissioner of [mental retardation and] developmental disabili-
   56  ties in conjunction  with  parents,  advocates  and  family  members  of
       A. 9549                             3

    1  persons  [who  are  mentally  retarded] WITH DEVELOPMENTAL DISABILITIES.
    2  Regulations to implement the authority of the Willowbrook consumer advi-
    3  sory board pursuant to paragraph (a) of this subdivision may be  promul-
    4  gated  by  the  commissioner  of  the office of [mental retardation and]
    5  developmental disabilities with advice  from  the  Willowbrook  consumer
    6  advisory board.
    7    (c)  Notwithstanding  any provision of law to the contrary, the formal
    8  determinations required pursuant to section seventeen hundred  fifty  of
    9  this article shall only apply to guardians appointed pursuant to section
   10  seventeen hundred fifty or seventeen hundred fifty-a of this article.
   11    (D)  A  PATIENT  SUBJECT TO THIS SECTION WHO IS FOUND BY THE ATTENDING
   12  PHYSICIAN TO HAVE CAPACITY TO MAKE HIS OR HER OWN HEALTH CARE DECISIONS,
   13  PURSUANT TO PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  THIS  SECTION,  UPON
   14  NOTICE  TO  THE  CHIEF EXECUTIVE OFFICER OF A RESIDENTIAL FACILITY OPER-
   15  ATED, LICENSED OR AUTHORIZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
   16  DISABILITIES, IN WHICH FACILITY THE PATIENT RESIDES OR FROM WHICH HE  OR
   17  SHE  WAS TRANSFERRED, AND THE MENTAL HYGIENE LEGAL SERVICE, MAY MAKE HIS
   18  OR HER OWN DECISIONS RELATING TO LIFE-SUSTAINING TREATMENT.
   19    (E) A PATIENT SUBJECT TO THIS SECTION WHO  HAS  A  VALID  HEALTH  CARE
   20  PROXY  AT  THE  TIME  OF  A  HEALTH  CARE DECISION, INCLUDING A DECISION
   21  INVOLVING LIFE-SUSTAINING TREATMENT, SHALL HAVE SUCH DECISIONS  MADE  IN
   22  ACCORDANCE  WITH  ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW. IF FOR
   23  ANY REASON THE AGENT OR AN ALTERNATE AGENT IS NOT REASONABLY  AVAILABLE,
   24  WILLING  AND COMPETENT TO SERVE AND THE PATIENT IS OTHERWISE ELIGIBLE TO
   25  HAVE A DECISION AS TO LIFE-SUSTAINING TREATMENT MADE  PURSUANT  TO  THIS
   26  SECTION,  ANY  GUARDIAN  OR  PERSON  OR  ENTITY ENTITLED TO EXERCISE THE
   27  AUTHORITY OF A GUARDIAN UNDER PARAGRAPH (A) OF THIS SUBDIVISION MAY MAKE
   28  SUCH DECISION.
   29    2. Decision-making standard. (a) The guardian shall base all  advocacy
   30  and  health  care  decision-making  solely  and  exclusively on the best
   31  interests of the [mentally retarded] person WITH A  DEVELOPMENTAL  DISA-
   32  BILITY and, when reasonably known or ascertainable with reasonable dili-
   33  gence,  on [the mentally retarded] SUCH person's wishes, including moral
   34  and religious beliefs.
   35    (b) An assessment of the [mentally retarded person's]  PERSON  WITH  A
   36  DEVELOPMENTAL  DISABILITY'S  best  interests shall include consideration
   37  of:
   38    (i) the dignity and uniqueness of every person;
   39    (ii) the preservation, improvement or  restoration  of  the  [mentally
   40  retarded] person's health;
   41    (iii)  the  relief  of  the  [mentally retarded] person's suffering by
   42  means of palliative care and pain management;
   43    (iv)  the  unique  nature  of  [artificially  provided]  nutrition  or
   44  hydration  PROVIDED BY MEANS OF MEDICAL TREATMENT, and the effect it may
   45  have on the [mentally retarded] person; and
   46    (v) the entire medical condition of the person.
   47    (c) No health care decision shall be influenced in any way by:
   48    (i) a presumption that persons with [mental retardation] DEVELOPMENTAL
   49  DISABILITIES are not entitled  to  the  full  and  equal  rights,  equal
   50  protection,  respect, medical care and dignity afforded to persons with-
   51  out [mental retardation or] developmental disabilities; or
   52    (ii) financial considerations of the guardian, as such  considerations
   53  affect the guardian, a health care provider or any other party.
   54    3. Right to receive information. Subject to the provisions of sections
   55  33.13  and  33.16 of the mental hygiene law, the guardian shall have the
   56  right to receive  all  medical  information  and  medical  and  clinical
       A. 9549                             4

    1  records  necessary  to  make  informed decisions regarding the [mentally
    2  retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health care.
    3    4.  Life-sustaining treatment. The guardian shall have the affirmative
    4  obligation to advocate for the full and efficacious provision of  health
    5  care,  including life-sustaining treatment. In the event that a guardian
    6  [makes] INITIATES a decision to  withdraw  or  withhold  life-sustaining
    7  treatment  from  a [mentally retarded] person WITH A DEVELOPMENTAL DISA-
    8  BILITY:
    9    (a) The attending physician, as defined in subdivision two of  section
   10  twenty-nine  hundred  eighty of the public health law, must confirm to a
   11  reasonable degree of medical  certainty  that  the  [mentally  retarded]
   12  person  WITH  A  DEVELOPMENTAL  DISABILITY lacks capacity to make health
   13  care decisions. The determination  thereof  shall  be  included  in  the
   14  [mentally  retarded]  person's  medical  record,  and shall contain such
   15  attending physician's opinion regarding the  cause  and  nature  of  the
   16  [mentally retarded] person's incapacity as well as its extent and proba-
   17  ble  duration.  The attending physician who makes the confirmation shall
   18  consult with another physician, or a licensed psychologist,  to  further
   19  confirm the [mentally retarded] person's lack of capacity. The attending
   20  physician  who  makes  the  confirmation,  or  the physician or licensed
   21  psychologist with whom the attending physician  consults,  must  (i)  be
   22  employed  by  a  developmental  disabilities  [services] REGIONAL office
   23  named in section 13.17 of the mental hygiene  law  or  employed  by  the
   24  office  for  people with developmental disabilities to provide treatment
   25  and care to people with developmental disabilities, or  (ii)  have  been
   26  employed  for  a  minimum  of  two years to render care and service in a
   27  facility or program operated, licensed or authorized by the  office  [of
   28  mental  retardation  and] FOR PEOPLE WITH developmental disabilities, or
   29  (iii) have been approved by the commissioner of [mental retardation and]
   30  developmental disabilities in accordance with regulations promulgated by
   31  such commissioner. Such regulations shall require that  a  physician  or
   32  licensed  psychologist possess specialized training or three years expe-
   33  rience in treating [mental retardation] PEOPLE WITH DEVELOPMENTAL  DISA-
   34  BILITIES.    A  record  of  such  consultation  shall be included in the
   35  [mentally retarded] person's medical record.
   36    (b) The attending physician, as defined in subdivision two of  section
   37  twenty-nine  hundred  eighty  of the public health law, with the concur-
   38  rence of another physician with  whom  such  attending  physician  shall
   39  consult,  must determine to a reasonable degree of medical certainty and
   40  note on the [mentally retarded person's]  PERSON  WITH  A  DEVELOPMENTAL
   41  DISABILITY'S chart that:
   42    (i) the [mentally retarded] person has a medical condition as follows:
   43    A.  a  terminal  condition, [as defined in subdivision twenty-three of
   44  section twenty-nine hundred sixty-one of the public  health  law]  WHICH
   45  SHALL  MEAN  AN  ILLNESS  OR INJURY FROM WHICH THERE IS NO RECOVERY, AND
   46  WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
   47    B. permanent unconsciousness; or
   48    C. a medical condition other than such person's  [mental  retardation]
   49  DEVELOPMENTAL  DISABILITY  which  requires life-sustaining treatment, is
   50  irreversible and which will continue indefinitely; and
   51    (ii) the  life-sustaining  treatment  would  impose  an  extraordinary
   52  burden on such person, in light of:
   53    A.  such  person's medical condition, other than such person's [mental
   54  retardation] DEVELOPMENTAL DISABILITY; and
       A. 9549                             5

    1    B. the expected outcome of  the  life-sustaining  treatment,  notwith-
    2  standing  such  person's  [mental retardation] DEVELOPMENTAL DISABILITY;
    3  and
    4    (iii)  in  the case of a decision to withdraw or withhold artificially
    5  provided nutrition or hydration:
    6    A. there is no reasonable hope of maintaining life; or
    7    B. the artificially provided nutrition or hydration poses an  extraor-
    8  dinary burden.
    9    (c)  The  guardian  shall  express  a decision to withhold or withdraw
   10  life-sustaining treatment either:
   11    (i) in writing, dated and signed in the presence of one witness  eigh-
   12  teen years of age or older who shall sign the decision, and presented to
   13  the  attending physician, as defined in subdivision two of section twen-
   14  ty-nine hundred eighty of the public health law; or
   15    (ii) orally, to two persons eighteen years of age or older,  at  least
   16  one  of  whom is the [mentally retarded person's] PERSON WITH A DEVELOP-
   17  MENTAL DISABILITY'S attending physician, as defined in  subdivision  two
   18  of section twenty-nine hundred eighty of the public health law.
   19    (d)  The attending physician, as defined in subdivision two of section
   20  twenty-nine hundred eighty of the public health  law,  who  is  provided
   21  with  the  decision  of  a  guardian  shall  include the decision in the
   22  [mentally retarded person's] PERSON WITH  A  DEVELOPMENTAL  DISABILITY'S
   23  medical chart, and shall either:
   24    (i)  promptly  issue  an order to withhold or withdraw life-sustaining
   25  treatment from the [mentally retarded]  person,  and  inform  the  staff
   26  responsible for such person's care, if any, of the order; or
   27    (ii)  promptly object to such decision, in accordance with subdivision
   28  five of this section.
   29    (e) At least forty-eight hours prior to the implementation of a  deci-
   30  sion  to withdraw life-sustaining treatment, or at the earliest possible
   31  time prior to the implementation of a decision to withhold life-sustain-
   32  ing treatment, the attending physician shall notify:
   33    (i) the [mentally retarded] person WITH  A  DEVELOPMENTAL  DISABILITY,
   34  except  if the attending physician determines, in writing and in consul-
   35  tation with another physician or a licensed  psychologist,  that,  to  a
   36  reasonable  degree of medical certainty, the person would suffer immedi-
   37  ate and severe injury from such notification.  The  attending  physician
   38  who  makes  the  confirmation, or the physician or licensed psychologist
   39  with whom the attending physician consults, shall:
   40    A. be employed by a developmental disabilities services  office  named
   41  in section 13.17 of the mental hygiene law or employed by the office for
   42  people  with developmental disabilities to provide treatment and care to
   43  people with developmental disabilities, or
   44    B. have been employed for a minimum of two years to  render  care  and
   45  service in a facility operated, licensed or authorized by the office [of
   46  mental retardation and] FOR PEOPLE WITH developmental disabilities, or
   47    C.  have been approved by the commissioner of [mental retardation and]
   48  developmental disabilities in accordance with regulations promulgated by
   49  such commissioner. Such regulations shall require that  a  physician  or
   50  licensed  psychologist possess specialized training or three years expe-
   51  rience in treating mental retardation. A  record  of  such  consultation
   52  shall be included in the [mentally retarded] person's medical record;
   53    (ii) if the person is in or was transferred from a residential facili-
   54  ty operated, licensed or authorized by the office [of mental retardation
   55  and]  FOR  PEOPLE  WITH  developmental disabilities, the chief executive
   56  officer of the agency or organization operating such  facility  and  the
       A. 9549                             6

    1  mental  hygiene legal service. NOTIFICATION TO THE FACILITY DIRECTOR AND
    2  THE MENTAL HYGIENE LEGAL SERVICE SHALL NOT DELAY ISSUANCE  OF  AN  ORDER
    3  NOT TO RESUSCITATE; and
    4    (iii)  if  the  person  is  not in and was not transferred from such a
    5  facility or program, the commissioner of [mental retardation and] devel-
    6  opmental disabilities, or his or her designee.
    7    (F) FOR A PATIENT RESIDING IN A FACILITY OPERATED, LICENSED OR AUTHOR-
    8  IZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES AS TO WHOM
    9  AN ORDER NOT TO RESUSCITATE HAS BEEN ENTERED,  THE  ATTENDING  PHYSICIAN
   10  SHALL REVIEW WHETHER THE ORDER IS STILL APPROPRIATE AT SUCH TIMES AND IN
   11  SUCH  MANNER AS IS PRESCRIBED BY SUBDIVISION FOUR OF SECTION TWENTY-NINE
   12  HUNDRED NINETY-FOUR-DD OF THE PUBLIC HEALTH LAW.
   13    5. Objection to health care decision. (a) Suspension.  A  health  care
   14  decision  made  pursuant  to  subdivision  four of this section shall be
   15  suspended, pending judicial review, except if the  suspension  would  in
   16  reasonable  medical  judgment  be  likely  to result in the death of the
   17  [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY, in the event
   18  of an objection to that decision at any time by:
   19    (i) the [mentally retarded] person on whose behalf such  decision  was
   20  made; or
   21    (ii)  a  parent  or adult sibling who either resides with or has main-
   22  tained substantial and continuous contact with the  [mentally  retarded]
   23  person; or
   24    (iii)  the  attending  physician,  as  defined  in  subdivision two of
   25  section twenty-nine hundred eighty of the public health law; or
   26    (iv) any other health care  practitioner  providing  services  to  the
   27  [mentally  retarded]  person,  who  is  licensed pursuant to article one
   28  hundred thirty-one, one hundred thirty-one-B,  one  hundred  thirty-two,
   29  one  hundred  thirty-three,  one hundred thirty-six, one hundred thirty-
   30  nine, one  hundred  forty-one,  one  hundred  forty-three,  one  hundred
   31  forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
   32  fifty-six,  one  hundred  fifty-nine  or  one  hundred sixty-four of the
   33  education law; or
   34    (v) the chief executive officer identified  in  subparagraph  (ii)  of
   35  paragraph (e) of subdivision four of this section; or
   36    (vi) if the person is in or was transferred from a residential facili-
   37  ty  or  program  operated, approved or licensed by the office [of mental
   38  retardation and] FOR PEOPLE WITH developmental disabilities, the  mental
   39  hygiene legal service; or
   40    (vii)  if  the  person  is  not in and was not transferred from such a
   41  facility or program, the commissioner of [mental retardation and] devel-
   42  opmental disabilities, or his or her designee.
   43    NOTWITHSTANDING THE FOREGOING, IN CASES WHERE THE ATTENDING  PHYSICIAN
   44  HAS  NOTIFIED  THE  CHIEF  EXECUTIVE OFFICER OF AN AGENCY AND THE MENTAL
   45  HYGIENE LEGAL SERVICE OF THE ENTRY OF AN ORDER NOT TO RESUSCITATE PURSU-
   46  ANT TO SUBPARAGRAPH (II) OF PARAGRAPH (E) OF SUBDIVISION  FOUR  OF  THIS
   47  SECTION, AND IF SUCH NOTICE INCLUDES EITHER THE PHYSICIAN'S STATEMENT OF
   48  THE  DIAGNOSTIC  AND  PROGNOSTIC  BASIS FOR THE MEDICAL DETERMINATION IN
   49  SUPPORT OF THE ORDER OR AN EXCERPT FROM  THE  PATIENT'S  MEDICAL  RECORD
   50  THAT IS SUFFICIENT TO SUPPORT SUCH DETERMINATION, AN ORDER NOT TO RESUS-
   51  CITATE  SHALL  NOT BE STAYED BY AN OBJECTION BY THE PERSONS DESCRIBED IN
   52  SUBPARAGRAPH (V) OR (VI) OF  THIS  PARAGRAPH  UNLESS  THE  OBJECTION  IS
   53  ACCOMPANIED  BY  (A)  A WRITTEN STATEMENT BY THE OBJECTING PARTY SETTING
   54  FORTH A BASIS FOR ASSERTING THAT A STANDARD IN THIS ARTICLE FOR ENTERING
   55  SUCH AN ORDER HAS NOT BEEN MET; AND (B) IF  THE  BASIS  RELATES  TO  THE
   56  FAILURE TO MEET MEDICAL CRITERIA IN THIS ARTICLE FOR THE ISSUANCE OF THE
       A. 9549                             7

    1  ORDER,  A WRITTEN STATEMENT BY A HEALTH OR SOCIAL SERVICES PRACTITIONER,
    2  AS DEFINED IN SUBDIVISION SEVENTEEN OF SECTION TWENTY-NINE HUNDRED NINE-
    3  TY-FOUR-A OF THE PUBLIC HEALTH  LAW  SETTING  FORTH  THE  PROFESSIONAL'S
    4  OPINION,  BASED  ON HIS OR HER REVIEW OF THE AFOREMENTIONED STATEMENT OR
    5  MEDICAL RECORD EXCERPT AND CONSULTATION  WITH  THE  PATIENT'S  ATTENDING
    6  PHYSICIAN,  THAT  THE MEDICAL CRITERIA IN THIS ARTICLE FOR ENTERING SUCH
    7  ORDER HAS NOT BEEN MET.
    8    (b) Form of objection. Such objection shall occur orally or  in  writ-
    9  ing.
   10    (c)  Notification.  In  the  event  of the suspension of a health care
   11  decision pursuant to this subdivision, the objecting party shall prompt-
   12  ly notify the guardian and the other parties identified in paragraph (a)
   13  of this subdivision, and  the  attending  physician  shall  record  such
   14  suspension  in  the  [mentally retarded person's] PERSON WITH A DEVELOP-
   15  MENTAL DISABILITY'S medical chart.
   16    (d) Dispute mediation. In the event of an objection pursuant  to  this
   17  subdivision,  at  the request of the objecting party or person or entity
   18  authorized to act as a guardian under this section, except  a  surrogate
   19  decision  making committee established pursuant to article eighty of the
   20  mental hygiene law, such objection shall be referred to [a dispute medi-
   21  ation system, established pursuant to section two thousand nine  hundred
   22  seventy-two] AN ETHICS REVIEW COMMITTEE, ESTABLISHED PURSUANT TO SECTION
   23  TWENTY-NINE  HUNDRED  NINETY-FOUR-M  of the public health law or similar
   24  entity for mediating disputes in a hospice, such as  a  patient's  advo-
   25  cate's office[,] OR hospital chaplain's office [or ethics committee], as
   26  described  in  writing  and  adopted  by the governing authority of such
   27  hospice, for non-binding mediation.  In  the  event  that  such  dispute
   28  cannot  be resolved within seventy-two hours or no such mediation entity
   29  exists or is reasonably  available  for  mediation  of  a  dispute,  the
   30  objection [shall] MAY proceed to judicial review pursuant to this subdi-
   31  vision.  The  party  requesting  mediation shall provide notification to
   32  those parties entitled to notice  pursuant  to  paragraph  (a)  of  this
   33  subdivision.
   34    6.  Special  proceeding authorized. The guardian, the attending physi-
   35  cian, as defined in  subdivision  two  of  section  twenty-nine  hundred
   36  eighty  of the public health law, the chief executive officer identified
   37  in subparagraph (ii) of  paragraph  (e)  of  subdivision  four  of  this
   38  section,  the  mental  hygiene legal service (if the person is in or was
   39  transferred from a residential facility or program operated, approved or
   40  licensed by the office [of  mental  retardation  and]  FOR  PEOPLE  WITH
   41  developmental  disabilities)  or the commissioner of [mental retardation
   42  and] developmental disabilities or his or her designee (if the person is
   43  not in and was not transferred from such  a  facility  or  program)  may
   44  commence  a special proceeding in a court of competent jurisdiction with
   45  respect to any dispute arising under this section,  including  objecting
   46  to  the  withdrawal  or withholding of life-sustaining treatment because
   47  such withdrawal or withholding is not in accord with  the  criteria  set
   48  forth in this section.
   49    7.  Provider's  obligations.  (a)  A health care provider shall comply
   50  with the health care decisions made by a guardian in good faith pursuant
   51  to this section, to the same extent as if such decisions had  been  made
   52  by  the  [mentally  retarded] person WITH A DEVELOPMENTAL DISABILITY, if
   53  such person had capacity.
   54    (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
   55  section shall be construed to require a  private  hospital  to  honor  a
   56  guardian's health care decision that the hospital would not honor if the
       A. 9549                             8

    1  decision had been made by the [mentally retarded] person WITH A DEVELOP-
    2  MENTAL  DISABILITY, if such person had capacity, because the decision is
    3  contrary to a formally adopted written policy of the hospital  expressly
    4  based  on  religious beliefs or sincerely held moral convictions central
    5  to the hospital's  operating  principles,  and  the  hospital  would  be
    6  permitted by law to refuse to honor the decision if made by such person,
    7  provided:
    8    (i)  the hospital has informed the guardian of such policy prior to or
    9  upon admission, if reasonably possible; and
   10    (ii) the [mentally retarded] person is transferred promptly to another
   11  hospital that is reasonably accessible under the  circumstances  and  is
   12  willing  to  honor the guardian's decision. If the guardian is unable or
   13  unwilling to arrange such a transfer, the hospital's  refusal  to  honor
   14  the  decision  of the guardian shall constitute an objection pursuant to
   15  subdivision five of this section.
   16    (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
   17  section shall be construed to require an individual health care provider
   18  to honor a guardian's health care decision that the individual would not
   19  honor if the decision had been made by the  [mentally  retarded]  person
   20  WITH  A  DEVELOPMENTAL  DISABILITY, if such person had capacity, because
   21  the decision is  contrary  to  the  individual's  religious  beliefs  or
   22  sincerely  held  moral  convictions, provided the individual health care
   23  provider promptly informs the guardian and the facility, if any, of  his
   24  or  her  refusal  to  honor  the guardian's decision. In such event, the
   25  facility  shall  promptly  transfer  responsibility  for  the  [mentally
   26  retarded]  person  to another individual health care provider willing to
   27  honor the guardian's decision. The individual health care provider shall
   28  cooperate in facilitating such transfer of the patient.
   29    (d) Notwithstanding the provisions of  any  other  paragraph  of  this
   30  subdivision,  if  a  guardian  directs  the provision of life-sustaining
   31  treatment, the denial of which in reasonable medical judgment  would  be
   32  likely  to  result in the death of the [mentally retarded] person WITH A
   33  DEVELOPMENTAL DISABILITY, a hospital or individual health care  provider
   34  that  does  not  wish to provide such treatment shall nonetheless comply
   35  with the guardian's decision pending either transfer  of  the  [mentally
   36  retarded] person to a willing hospital or individual health care provid-
   37  er, or judicial review.
   38    (e)  Nothing in this section shall affect or diminish the authority of
   39  a surrogate decision-making panel to render  decisions  regarding  major
   40  medical treatment pursuant to article eighty of the mental hygiene law.
   41    8. Immunity. (a) Provider immunity. No health care provider or employ-
   42  ee  thereof  shall  be  subjected  to criminal or civil liability, or be
   43  deemed to have engaged in unprofessional conduct, for  honoring  reason-
   44  ably  and  in  good  faith  a health care decision by a guardian, or for
   45  other actions taken reasonably  and  in  good  faith  pursuant  to  this
   46  section.
   47    (b)  Guardian  immunity. No guardian shall be subjected to criminal or
   48  civil liability for making a health care decision reasonably and in good
   49  faith pursuant to this section.
   50    S 2. This act shall take effect on the ninetieth day  after  it  shall
   51  have become a law.
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