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A03991 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3991--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2017
                                       ___________
 
        Introduced  by M. of A. GOTTFRIED, ABINANTI -- 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 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    12    In  2010,  the former DNR law was superseded by the Family Health Care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.
    20    The  legislature  finds that the broader FHCDA and SPCA §1750-b stand-
    21  ards are difficult to apply to situations in which  resuscitation  would
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02525-02-7

        A. 3991--A                          2
 
     1  be  medically  futile.  Accordingly,  this  bill restores the former DNR
     2  law's medical futility standard as an alternative basis  for  writing  a
     3  DNR order under the FHCDA and under SCPA §1750-b.
     4    §  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
     5  section 2994-d of the public health law, as added by chapter  8  of  the
     6  laws  of 2010, are amended and a new subparagraph (iii) is added to read
     7  as follows:
     8    (i) Treatment would be an extraordinary burden to the patient  and  an
     9  attending  physician  determines,  with  the  independent concurrence of
    10  another physician, that, to a reasonable degree of medical certainty and
    11  in accord with accepted  medical  standards,  (A)  the  patient  has  an
    12  illness  or  injury  which  can  be  expected  to cause death within six
    13  months, whether or not treatment is provided;  or  (B)  the  patient  is
    14  permanently unconscious; [or]
    15    (ii)  The provision of treatment would involve such pain, suffering or
    16  other burden that it would reasonably be  deemed  inhumane  or  extraor-
    17  dinarily burdensome under the circumstances and the patient has an irre-
    18  versible or incurable condition, as determined by an attending physician
    19  with  the  independent  concurrence of another physician to a reasonable
    20  degree of medical certainty and in accord with accepted  medical  stand-
    21  ards[.]; or
    22    (iii) With respect to a decision to enter an order not to resuscitate,
    23  an attending physician determines, with the independent concurrence of a
    24  second  physician,  to a reasonable degree of medical certainty, that in
    25  the event of a cardiac or respiratory  arrest,  resuscitation  would  be
    26  unsuccessful  in  restoring cardiac and respiratory function or that the
    27  patient will experience repeated arrest in a short  time  period  before
    28  death occurs.
    29    §  3.  Paragraph  (b) of subdivision 5 of section 2994-g of the public
    30  health law, as added by chapter 8 of the laws of  2010,  is  amended  to
    31  read as follows:
    32    (b)  If  the  attending  physician,  with independent concurrence of a
    33  second physician designated by the hospital, determines to a  reasonable
    34  degree of medical certainty that:
    35    (i)  (A) life-sustaining treatment offers the patient no medical bene-
    36  fit because the patient will die imminently, even if  the  treatment  is
    37  provided; and
    38    [(ii)]  (B)  the  provision of life-sustaining treatment would violate
    39  accepted medical standards, then such  treatment  may  be  withdrawn  or
    40  withheld  from  an  adult  patient who has been determined to lack deci-
    41  sion-making capacity pursuant to  section  twenty-nine  hundred  ninety-
    42  four-c  of this article, without judicial approval. This paragraph shall
    43  not apply to any treatment necessary to alleviate pain or discomfort; or
    44    (ii) in the event of cardiac or respiratory arrest, resuscitation will
    45  be unsuccessful in restoring cardiac and respiratory  function  or  that
    46  the  patient  will  experience  repeated  arrest  in a short time period
    47  before death occurs, then an order not to resuscitate may be entered for
    48  an adult patient who has been determined to lack decision-making capaci-
    49  ty pursuant to section twenty-nine hundred ninety-four-c of  this  arti-
    50  cle, without judicial approval.
    51    §  4.  Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
    52  section 1750-b of the surrogate's court procedure  act,  as  amended  by
    53  chapter 198 of the laws of 2016, are amended to read as follows:
    54    (i)  the person who is intellectually disabled has a medical condition
    55  as follows:

        A. 3991--A                          3
 
     1    A. a terminal condition[, as defined in  subdivision  twenty-three  of
     2  section  twenty-nine  hundred sixty-one of the public health law]  which
     3  shall mean an illness or injury from which there  is  no  recovery,  and
     4  which can reasonably be expected to cause death within one year; or
     5    B. permanent unconsciousness; or
     6    C. a medical condition other than such person's intellectual disabili-
     7  ty  which  requires life-sustaining treatment, is irreversible and which
     8  will continue indefinitely; [and] or
     9    D. in the case of a decision to enter an  order  not  to  resuscitate,
    10  that  in  the  event of cardiac or respiratory arrest such resuscitation
    11  would be unsuccessful in restoring cardiac and respiratory  function  or
    12  that  the patient will experience repeated arrest in a short time period
    13  before death occurs; and
    14    (ii) except in the case of a decision to enter an order not to  resus-
    15  citate  based  on  clause  D  of subparagraph (i) of this paragraph, the
    16  life-sustaining treatment would impose an extraordinary burden  on  such
    17  person, in light of:
    18    A. such person's medical condition, other than such person's intellec-
    19  tual disability; and
    20    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
    21  standing such person's intellectual disability; and
    22    § 5. This act shall take effect on the ninetieth day  after  it  shall
    23  have become a law.
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