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A03991 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3991--B
                                                                Cal. No. 304
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2017
                                       ___________
 
        Introduced  by  M. of A. GOTTFRIED, ABINANTI, SEPULVEDA -- 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 -- ordered to a
          third reading, amended and ordered reprinted, retaining its  place  on
          the order of third reading
 
        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    12    In 2010, the former DNR law was superseded by the Family  Health  Care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") §1750-b  does  not  have  a  standard
    18  specifically  relating  to  medically  futile resuscitation for develop-
    19  mentally disabled patients.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02525-04-8

        A. 3991--B                          2
 
     1    The legislature finds that the broader FHCDA and SPCA  §1750-b  stand-
     2  ards  are  difficult to apply to situations in which resuscitation would
     3  be medically futile. Accordingly, this  bill  restores  the  former  DNR
     4  law's  medical  futility  standard as an alternative basis for writing a
     5  DNR order under the FHCDA and under SCPA §1750-b.
     6    §  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
     7  section 2994-d of the public health law, as amended by  chapter  430  of
     8  the  laws  of 2017, are amended and a new subparagraph (iii) is added to
     9  read as follows:
    10    (i) Treatment would be an extraordinary burden to the patient  and  an
    11  attending physician or attending nurse practitioner determines, with the
    12  independent  concurrence  of  another  physician  or nurse practitioner,
    13  that, to a reasonable degree of medical certainty  and  in  accord  with
    14  accepted  medical  standards,  (A)  the patient has an illness or injury
    15  which can be expected to cause death within six months, whether  or  not
    16  treatment  is  provided;  or (B) the patient is permanently unconscious;
    17  [or]
    18    (ii) The provision of treatment would involve such pain, suffering  or
    19  other  burden  that  it  would reasonably be deemed inhumane or extraor-
    20  dinarily burdensome under the circumstances and the patient has an irre-
    21  versible or incurable condition, as determined by an attending physician
    22  or attending nurse practitioner  with  the  independent  concurrence  of
    23  another  physician  or  nurse  practitioner  to  a  reasonable degree of
    24  medical certainty and in accord with accepted medical standards[.]; or
    25    (iii) With respect to a decision to enter an order not to resuscitate,
    26  an attending physician determines, with the independent concurrence of a
    27  second physician, to a reasonable degree of medical certainty,  that  in
    28  the  event  of  a  cardiac or respiratory arrest, resuscitation would be
    29  unsuccessful in restoring cardiac and respiratory function or  that  the
    30  patient  will  experience  repeated arrest in a short time period before
    31  death occurs.
    32    § 3. Paragraph (b) of subdivision 5 of section 2994-g  of  the  public
    33  health law, as amended by chapter 430 of the laws of 2017, is amended to
    34  read as follows:
    35    (b)  If  the attending physician or attending nurse practitioner, with
    36  independent concurrence of a  second  physician  or  nurse  practitioner
    37  designated by the hospital, determines to a reasonable degree of medical
    38  certainty that:
    39    (i)  (A) life-sustaining treatment offers the patient no medical bene-
    40  fit because the patient will die imminently, even if  the  treatment  is
    41  provided; and
    42    [(ii)]  (B)  the  provision of life-sustaining treatment would violate
    43  accepted medical standards, then such  treatment  may  be  withdrawn  or
    44  withheld  from  an  adult  patient who has been determined to lack deci-
    45  sion-making capacity pursuant to  section  twenty-nine  hundred  ninety-
    46  four-c  of  this  article,  without  judicial approval. This [paragraph]
    47  subparagraph shall not apply to any  treatment  necessary  to  alleviate
    48  pain or discomfort; or
    49    (ii) in the event of cardiac or respiratory arrest, resuscitation will
    50  be  unsuccessful  in  restoring cardiac and respiratory function or that
    51  the patient will experience repeated  arrest  in  a  short  time  period
    52  before death occurs, then an order not to resuscitate may be entered for
    53  an adult patient who has been determined to lack decision-making capaci-
    54  ty  pursuant  to section twenty-nine hundred ninety-four-c of this arti-
    55  cle, without judicial approval.

        A. 3991--B                          3
 
     1    § 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
     2  section  1750-b  of  the  surrogate's court procedure act, as amended by
     3  chapter 198 of the laws of 2016, are amended to read as follows:
     4    (i)  the person who is intellectually disabled has a medical condition
     5  as follows:
     6    A. a terminal condition[, as defined in  subdivision  twenty-three  of
     7  section  twenty-nine  hundred sixty-one of the public health law]  which
     8  shall mean an illness or injury from which there  is  no  recovery,  and
     9  which can reasonably be expected to cause death within one year; or
    10    B. permanent unconsciousness; or
    11    C. a medical condition other than such person's intellectual disabili-
    12  ty  which  requires life-sustaining treatment, is irreversible and which
    13  will continue indefinitely; [and] or
    14    D. in the case of a decision to enter an  order  not  to  resuscitate,
    15  that  in  the  event of cardiac or respiratory arrest such resuscitation
    16  would be unsuccessful in restoring cardiac and respiratory  function  or
    17  that  the patient will experience repeated arrest in a short time period
    18  before death occurs; and
    19    (ii) except in the case of a decision to enter an order not to  resus-
    20  citate  based  on  clause  D  of subparagraph (i) of this paragraph, the
    21  life-sustaining treatment would impose an extraordinary burden  on  such
    22  person, in light of:
    23    A. such person's medical condition, other than such person's intellec-
    24  tual disability; and
    25    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
    26  standing such person's intellectual disability; and
    27    § 5. This act shall take effect on the ninetieth day  after  it  shall
    28  have become a law; provided, however, that if chapter 430 of the laws of
    29  2017  shall  not have taken effect on or before such date, then sections
    30  two and three of this act shall take effect on the same date as  chapter
    31  430 of the laws of 2017, takes effect.
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