NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9566B
SPONSOR: Rosenthal TITLE OF BILL: An act to amend the public health law, in relation to
the artificial nutrition and hydration decision standard
PURPOSE OF GENERAL IDEA OF BILL: This is one of a series of seven
bills, informally referred to as the "Surrogate Decision-Making Improve-
ment 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 the standards for a
health care agent's decision regarding artificial nutrition and
hydration consistent with the Family Health Care Decision Act (FHCDA).
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends the model health care proxy form in PHL § 2981(5)(d) to
delete a clause relating to agent decisions regarding artificial nutri-
tion and hydration because of the change made by Section 2, and to add
more general language prompting the principal to express his or her
wishes about life-sustaining treatment, including nutrition and
hydration provided by means of medical treatment.
Section 2 deletes a clause relating to agent decisions regarding artifi-
cial nutrition and hydration to make the decision-making standard
consistent with the standard in the FHCDA, allowing a surrogate to make
such decisions based on the surrogate's wishes, including the princi-
pal's religious and moral beliefs, or if the principal's wishes are not
reasonably known and cannot with reasonable diligence be ascertained, in
accordance with the principal's best interests.
Section 3 is the effective date: ninety days after it becomes a law.
JUSTIFICATION: This bill makes the decision-making standard for an
agent under the Health Care Proxy Law similar to the standard for a
surrogate under the Family Health Care Decisions Act (FHCDA).
Specifically, the FHCDA provides that a surrogate must make decisions
about life-sustaining treatment, including artificial nutrition and
hydration, based on the patient's wishes or, if the patient's wishes are
not reasonably known, based on the patient's best interests. In
contrast, the 1990 Health Care Proxy Law allows the patient's designated
agent to make decisions about artificial nutrition and hydration only if
the decision is based on the patient's reasonably known wishes, and not
if the decision is based on the patient's best interests. There is
little basis for this disparity in standards. Moreover, the special rule
for decisions about artificial nutrition and hydration in the Health
Care Proxy Law has been a source of enduring confusion and misinterpre-
tation.
This amendment would make the FHCDA standard, with its careful defi-
nition of "best interests," and which no applies to decisions by surro-
gates, applicable to decisions by health care agents.
PRIOR LEGISLATIVE HISTORY: 2013: A.7371 reported referred to codes
2014: A9566-A 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. The amendments to article
29-C of the public health law shall apply to decisions made pursuant to
health care proxies created prior to this act becoming law as well as
those created thereafter.
STATE OF NEW YORK
________________________________________________________________________
9566--B
IN ASSEMBLY
May 7, 2014
___________
Introduced by M. of A. ROSENTHAL, GOTTFRIED -- read once and referred to
the Committee on Health -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- reported and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the public health law, in relation to the artificial
nutrition and hydration decision standard
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 4 of section 2980 of the public health law, as
2 added by chapter 752 of the laws of 1990, is amended to read as follows:
3 4. "Health care" means any treatment, service or procedure to diagnose
4 or treat an individual's physical or mental condition. Providing nutri-
5 tion or hydration orally, without reliance on medical treatment, is not
6 health care under this article and is not subject to this article.
7 § 2. The fourth undesignated paragraph of paragraph (d) of subdivision
8 5 of section 2981 of the public health law, as added by chapter 752 of
9 the laws of 1990, is amend to read as follows:
10 NOTE: Although not necessary, and neither encouraged nor discouraged,
11 you may wish to state instructions or wishes, and limit your agent's
12 authority. [Unless your agent knows your wishes about artificial nutri-
13 tion and hydration, your agent will not have authority to decide about
14 artificial nutrition and hydration.] For example, you may state your
15 wishes regarding withholding or withdrawing life-sustaining treatment
16 (including hydration and nutrition provided by means of medical treat-
17 ment) to guide your agent's decisions. If you choose to state
18 instructions, wishes, or limits, please do so below:
19 ______________________________________________________________________
20 ______________________________________________________________________
21 ______________________________________________________________________
22 § 3. Subdivision 2 of section 2982 of the public health law, as
23 amended by chapter 230 of the laws of 2004, is amended to read as
24 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13622-05-4
A. 9566--B 2
1 2. Decision-making standard. After consultation with a licensed physi-
2 cian, registered nurse, licensed psychologist, licensed master social
3 worker, or a licensed clinical social worker, the agent shall make
4 health care decisions: (a) in accordance with the principal's wishes,
5 including the principal's religious and moral beliefs; or (b) if the
6 principal's wishes are not reasonably known and cannot with reasonable
7 diligence be ascertained, in accordance with the principal's best inter-
8 ests[; provided, however, that if the principal's wishes regarding the
9 administration of artificial nutrition and hydration are not reasonably
10 known and cannot with reasonable diligence be ascertained, the agent
11 shall not have the authority to make decisions regarding these meas-
12 ures].
13 § 4. This act shall take effect on the ninetieth day after it shall
14 have become a law, provided that the amendments to sections 2981 and
15 2982 of the public health law made by sections two and three of this act
16 shall apply to decisions made pursuant to health care proxies created
17 prior to the effective date of this act as well as those created there-
18 after.
