Relates to disputes between a surrogate and a hospital or individual health care provider; cites when the requirement of a provider to provide life-sustaining treatment following a surrogate's directive does not apply.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9670A
SPONSOR: Pretlow (MS) TITLE OF BILL: An act to amend the public health law, in relation to
disputes between a surrogate and a hospital or individual health care
provider
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 clarifies that the provisions relating to disputes between a
surrogate and a hospital or individual health care provider do not apply
when the hospital or individual health care provider is carrying out a
patient's prior decision that meet standards set forth in the FHCDA.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends PHL section 2994-f to clarify that the provisions
relating to disputes between a surrogate and a hospital or individual
health care provider do not apply when the hospital or individual health
care provider is carrying out a patient's prior decision that meet stan-
dards set forth in PHL § 2994-d, provided that the surrogate in such
instance retains the right to request ethics committee review of the
case or judicial review in accordance with other provisions in the
FHCDA.
Section 2 is the effective date: immediately.
JUSTIFICATION: This amendment ensures that a surrogate's objection
will not prohibit a provider from following the clearly expressed prior
wishes of a patient.
The Family Health Care Decisions Act (FHCDA) now states that if a surro-
gate directs the provision of life-sustaining treatment, but the hospi-
tal or individual health care provider "does not wish to provide such
treatment," the hospital or individual provider nevertheless must either
comply with the surrogate's decision, transfer the patient or seek court
review.
The provision is appropriate as applied to a dispute between the surro-
gate and the provider. However, it does not clearly or appropriately
apply to disputes between a surrogate and the patient himself, as
evidenced by the patient's clear prior decision. .Indeed, it would be
constitutionally and ethically problematic to apply this clause to over-
ride a patient's clear prior decision.
Notably, the FHCDA provides that a provider does not need to seek the
consent of a surrogate when a patient has made a decision about proposed
health care in accordance with certain requirements. PHL §
2994-d.3(a)(ii). Accordingly, this amendment clarifies that the
provision relating to a dispute between the surrogate and the provider
does not apply "when the hospital or individual health care provider is
carrying out a patient's decision made pursuant to paragraph (ii) of
subdivision 3 of section twenty-nine hundred ninety-four-d of this arti-
cle."
The amendment recognizes that the surrogate retains other means to chal-
lenge the patient's prior decision, i.e.: through the ethics review
committee process or judicial review.
PRIOR LEGISLATIVE HISTORY: 2013: A.7371 reported referred to codes
2014: A. 9670 reported to codes
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
9670--A
IN ASSEMBLY
May 14, 2014
___________
Introduced by M. of A. PRETLOW, GOTTFRIED -- read once and referred to
the Committee on Health -- reported and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the public health law, in relation to disputes between a
surrogate and a hospital or individual health care provider
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 2994-f of the public health law,
2 as added by chapter 8 of the laws of 2010, is amended to read as
3 follows:
4 3. Notwithstanding the provisions of this section or subdivision one
5 of section twenty-nine hundred ninety-four-q of this article, if a
6 surrogate directs the provision of life-sustaining treatment, the denial
7 of which in reasonable medical judgment would be likely to result in the
8 death of the patient, a hospital or individual health care provider that
9 does not wish to provide such treatment shall nonetheless comply with
10 the surrogate's decision pending either transfer of the patient to a
11 willing hospital or individual health care provider, or judicial review
12 in accordance with section twenty-nine hundred ninety-four-r of this
13 article. This requirement shall not apply when the hospital or individ-
14 ual health care provider is carrying out a patient's decision made
15 pursuant to subparagraph (ii) of paragraph (a) of subdivision three of
16 section twenty-nine hundred ninety-four-d of this article; provided that
17 the surrogate in such instance retains the right to request ethics
18 committee review of the case pursuant to section twenty-nine hundred
19 ninety-four-m of this article, or judicial review in accordance with
20 section twenty-nine hundred ninety-four-r of this article.
21 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13624-02-4
