A09648 Summary:

BILL NO    A09648 

SAME AS    SAME AS S07156-A

SPONSOR    Gottfried

COSPNSR    

MLTSPNSR   

Amd SS2994-d & 2994-g, Pub Health L; amd S1750-b, SCPA

Relates to restoring medical futility as a basis for DNR.
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A09648 Actions:

BILL NO    A09648 

05/14/2014 referred to health
05/20/2014 reported referred to codes
06/19/2014 reported referred to rules
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A09648 Votes:

There are no votes for this bill in this legislative session.
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A09648 Memo:

BILL NUMBER:A9648

TITLE  OF  BILL:    An act to amend the public health law and the surro-
gate's court procedure act, in relation to restoring medical futility as
a basis for both surrogate consent to a do not resuscitate order and for
a do not resuscitate order for a patient without a surrogate

PURPOSE OR 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 or 2010) and other.laws that govern health care decisions,  includ-
ing  life-sustaining  treatment  decisions,  for patients who lack deci-
sion-making capacity.

This bill restores the medical futility standard from  former  PHL  Art.
29-B  as  a  basis  for  surrogate consent to a Do Not Resuscitate (DNR)
order and for a DNR order for a patient without a surrogate.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 sets forth the legislative intent.

Section 2 amends PHL S 2994-d(5)(a) to restore one of the bases  in  the
former  DNR  Law (PHL Art. 29-B) for when a surrogate may consent to DNR
order. The former DNR Law provided that a DNR order may be entered  when
there  is  a  determination  by the attending physician and a concurring
physician that resuscitation would be unsuccessful in restoring  cardiac
and  respiratory  function  or that the patient will experience repeated
arrest in a short time period before death occurs (hereinafter  referred
to as "medical futility").

Section  3  amends  PHL  S  2994-d.5(b) to restore medical futility as a
basis for a DNR order for a patient who does not have a surrogate.

Section 4 amends SCPA S 1750-b .4(b): to restore medical futility  as  a
basis  for  surrogate consent to a DNR order for a developmentally disa-
bled person.

Section 5 amends SCPA S 1750-b .4(b) to restore medical  futility  as  a
basis  for  a  DNR order for a developmentally disabled patient who does
not have a surrogate, without need for approval by a surrogate  decision
making committee convened pursuant to the MHT, Article 80.

Section  6  is the effective date: ninetieth day after it shall become a
law

JUSTIFICATION:

For over twenty years under the former DNR law (PHL Art 29-B), a  surro-
gate  could  consent  to  a DNR order if the patient met any one of four
clinical criteria, one of which was a finding  by  two  physicians  that
resuscitation "will be unsuccessful in restoring cardiac and respiratory
function  or that the patient will experience repeated arrest in a short
time period before death occurs." The former DNR law also allowed a  DNR
order  to  be entered for a patient who did not have a surrogate on that
basis. That law applied to all patients, including developmentally disa-
bled patients.

The FHCDA, in contrast, establishes  standards  for  the  withdrawal  or
withholding  of a broad range of life-sustaining treatment.  Accordingly
it does not have a standard specifically relating  to  medically  futile
resuscitation. Chapter 8 of the laws of 2010 made the FHCDA apply to DNR
orders for most patient in hospitals and nursing homes.

Similarly  SCPA  S 1750-b does not have a standard specifically relating
to medically futile resuscitation. Chapter 8 of the laws  of  2010  made
SCPA S 1750-b apply to DNR orders for developmentally disabled patients.
This  loss  of the long-established "medical futility" grounds for a DNR
was inadvertent.

Experience has shown that the broader FHCDA and SCPA S 1750-b standards,
especially the standards for patients who do not have surrogates, can be
difficult to apply to decisions about  resuscitation.  This  bill  would
restore the former DNR law's medical futility standard as an alternative
basis for writing a DNR order under the FHCDA and under SCPA S 1750-b.

PRIOR LEGISLATIVE HISTORY:

2013: A.7371 reported referred to codes

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This  act shall take effect on the ninetieth day after it shall become a
law.
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A09648 Text:

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

                                         9648

                                 I N  A S S E M B L Y

                                     May 14, 2014
                                      ___________

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

       AN ACT to amend the public health law and the surrogate's  court  proce-
         dure  act,  in  relation  to restoring medical futility as a basis for
         both surrogate consent to a do not resuscitate order and for a do  not
         resuscitate order for a patient without a surrogate

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

    1    Section 1. Legislative findings. Under New York's former do not resus-
    2  citate (hereinafter "DNR") law, article 29-B of the public health law, a
    3  surrogate could consent to a DNR order if the patient  met  any  one  of
    4  four  clinical  criteria,  one  of which was a finding by two physicians
    5  that resuscitation was "medically futile," which  was  defined  to  mean
    6  that  resuscitation  "will  be  unsuccessful  in  restoring  cardiac and
    7  respiratory function or that the patient will experience repeated arrest
    8  in a short time period before death occurs." The  former  DNR  law  also
    9  allowed  a  DNR  order  to  be  entered for a patient who did not have a
   10  surrogate on that basis. That law applied  to  all  patients,  including
   11  developmentally disabled patients.
   12    In  2010,  the former DNR law was superseded by the Family Health Care
   13  Decisions Act (hereinafter "FHCDA") which established standards for  the
   14  withdrawal  or  withholding  of  a broad range of life-sustaining treat-
   15  ments. Accordingly, the FHCDA  did  not  have  a  standard  specifically
   16  relating to medically futile resuscitation. Similarly, Surrogate's Court
   17  Procedure  Act  (hereinafter  "SPCA")  S1750-b  does not have a standard
   18  specifically relating to medically  futile  resuscitation  for  develop-
   19  mentally disabled patients.
   20    The  legislature  finds that the broader FHCDA and SPCA S1750-b stand-
   21  ards are difficult to apply to situations in which  resuscitation  would
   22  be  medically  futile.  Accordingly,  this  bill restores the former DNR
   23  law's medical futility standard as an alternative basis  for  writing  a
   24  DNR order under the FHCDA and under SCPA S1750-b.
   25    S  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
   26  section 2994-d of the public health law, as added by chapter  8  of  the

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13627-03-4
       A. 9648                             2

    1  laws  of 2010, are amended and a new subparagraph (iii) is added to read
    2  as follows:
    3    (i)  Treatment  would be an extraordinary burden to the patient and an
    4  attending physician determines,  with  the  independent  concurrence  of
    5  another physician, that, to a reasonable degree of medical certainty and
    6  in  accord  with  accepted  medical  standards,  (A)  the patient has an
    7  illness or injury which can  be  expected  to  cause  death  within  six
    8  months,  whether  or  not  treatment  is provided; or (B) the patient is
    9  permanently unconscious; [or]
   10    (ii) The provision of treatment would involve such pain, suffering  or
   11  other  burden  that  it  would reasonably be deemed inhumane or extraor-
   12  dinarily burdensome under the circumstances and the patient has an irre-
   13  versible or incurable condition, as determined by an attending physician
   14  with the independent concurrence of another physician  to  a  reasonable
   15  degree  of  medical certainty and in accord with accepted medical stand-
   16  ards[.]; OR
   17    (III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
   18  AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A
   19  SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY,  THAT  IN
   20  THE  EVENT  OF  A  CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WOULD BE
   21  UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR  THAT  THE
   22  PATIENT  WILL  EXPERIENCE  REPEATED ARREST IN A SHORT TIME PERIOD BEFORE
   23  DEATH OCCURS.
   24    S 3. Paragraph (b) of subdivision 5 of section 2994-g  of  the  public
   25  health  law,  as  added  by chapter 8 of the laws of 2010, is amended to
   26  read as follows:
   27    (b) If the attending physician,  with  independent  concurrence  of  a
   28  second  physician designated by the hospital, determines to a reasonable
   29  degree of medical certainty that:
   30    (i) (A) life-sustaining treatment offers the patient no medical  bene-
   31  fit  because  the  patient will die imminently, even if the treatment is
   32  provided; and
   33    [(ii)] (B) the provision of life-sustaining  treatment  would  violate
   34  accepted  medical  standards,  then  such  treatment may be withdrawn or
   35  withheld from an adult patient who has been  determined  to  lack  deci-
   36  sion-making  capacity  pursuant  to  section twenty-nine hundred ninety-
   37  four-c of this article, without judicial approval. This paragraph  shall
   38  not apply to any treatment necessary to alleviate pain or discomfort; OR
   39    (II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WILL
   40  BE  UNSUCCESSFUL  IN  RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT
   41  THE PATIENT WILL EXPERIENCE REPEATED  ARREST  IN  A  SHORT  TIME  PERIOD
   42  BEFORE DEATH OCCURS, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR
   43  AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI-
   44  TY  PURSUANT  TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI-
   45  CLE, WITHOUT JUDICIAL APPROVAL.
   46    S 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
   47  section 1750-b of the surrogate's court procedure act, as added by chap-
   48  ter 500 of the laws of 2002, are amended to read as follows:
   49    (i) the mentally retarded person has a medical condition as follows:
   50    A.  a  terminal  condition, [as defined in subdivision twenty-three of
   51  section twenty-nine hundred sixty-one of the public  health  law]  WHICH
   52  SHALL  MEAN  AN  ILLNESS  OR INJURY FROM WHICH THERE IS NO RECOVERY, AND
   53  WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
   54    B. permanent unconsciousness; or
       A. 9648                             3

    1    C. a medical condition other than  such  person's  mental  retardation
    2  which requires life-sustaining treatment, is irreversible and which will
    3  continue indefinitely; [and] OR
    4    D.  IN  THE  CASE  OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
    5  THAT IN THE EVENT OF CARDIAC OR RESPIRATORY  ARREST  SUCH  RESUSCITATION
    6  WOULD  BE  UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
    7  THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME  PERIOD
    8  BEFORE DEATH OCCURS; AND
    9    (ii)  EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS-
   10  CITATE BASED ON CLAUSE D OF SUBPARAGRAPH  (I)  OF  THIS  PARAGRAPH,  the
   11  life-sustaining  treatment  would impose an extraordinary burden on such
   12  person, in light of:
   13    A. such person's medical condition, other than  such  person's  mental
   14  retardation; and
   15    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
   16  standing such person's mental retardation; and
   17    S 5. Subdivision 4 of section 1750-b of the surrogate's  court  proce-
   18  dure act is amended by adding new paragraph (f) to read as follows:
   19    (F)  IN  THE  CASE  OF  A PERSON FOR WHOM "GUARDIAN" MEANS A SURROGATE
   20  DECISION-MAKING COMMITTEE PURSUANT TO THIS  SECTION,  AN  ORDER  NOT  TO
   21  RESUSCITATE  MAY  BE ENTERED, WITHOUT REVIEW OR APPROVAL BY SUCH COMMIT-
   22  TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR-
   23  RENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL  CERTAIN-
   24  TY,  THAT  IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST RESUSCITATION
   25  WOULD BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY  FUNCTION  OR
   26  THAT  THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME PERIOD
   27  BEFORE DEATH OCCURS.
   28    S 6. This act shall take effect on the ninetieth day  after  it  shall
   29  have become a law.
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