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A05261 Summary:

BILL NOA05261C
 
SAME ASSAME AS S05814-A
 
SPONSORPaulin
 
COSPNSRDinowitz, Galef, Zebrowski, Gottfried, Blake, Hevesi, Steck, Sepulveda
 
MLTSPNSRBraunstein, Crouch, Duprey, Skartados
 
Add Art 28-F 2899-d - 2899-p, Pub Health L
 
Relates to the patient self-determination act; authorizes a physician with a bona fide physician-patient relationship with a patient with a terminal illness or condition to prescribe a lethal dose of the medication to be self-administered; defines terminal illness or condition to be an illness or condition which can reasonably be expected to cause death within six months, whether or not treatment is provided; provides immunity to health care providers.
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A05261 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5261--C
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 13, 2015
                                       ___________
 
        Introduced  by  M.  of A. PAULIN, DINOWITZ, GALEF, ZEBROWSKI, GOTTFRIED,
          BLAKE -- Multi-Sponsored by -- M. of A.  BRAUNSTEIN,  CROUCH,  DUPREY,
          SKARTADOS  --  read  once  and  referred to the Committee on Health --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted  to  said  committee -- again reported from said committee
          with amendments, ordered reprinted as amended and recommitted to  said
          committee -- recommitted to the Committee on Health in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN  ACT to amend the public health law, in relation to patient self-det-
          ermination at end of life
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This  act shall be known and may be cited as the "patient
     2  self-determination act".
     3    § 2. The public health law is amended by adding a new article 28-F  to
     4  read as follows:
     5                                ARTICLE 28-F
     6                                AID IN DYING
     7  Section 2899-d. Definitions.
     8          2899-e. Written request for medication.
     9          2899-f. Written request signed and witnessed.
    10          2899-g. Attending physician responsibilities.
    11          2899-h. Counseling referral.
    12          2899-i. Medical record documentation requirements.
    13          2899-j. Residency requirement.
    14          2899-k. Protection of health care providers and facilities.
    15          2899-l. Relation to other laws and contracts.
    16          2899-m. Safe disposal of unused medications.
    17          2899-n. Death certificate.
    18          2899-o. Reporting.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07446-23-6

        A. 5261--C                          2
 
     1          2899-p. Severability.
     2    § 2899-d. Definitions. As used in this article:
     3    1.  "Adult"  means  an  individual  who  is twenty-one years of age or
     4  older.
     5    2. "Attending physician" means the physician who has primary responsi-
     6  bility for the care of the patient and treatment of the patient's termi-
     7  nal disease.
     8    3. "Capacity" means the  ability  to  understand  and  appreciate  the
     9  nature and consequences of health care decisions, including the benefits
    10  and  risks of and alternatives to any proposed health care, and to reach
    11  an informed decision and to  communicate  health  care  decisions  to  a
    12  physician,  including  communication  through  persons familiar with the
    13  patient's manner of communicating if those persons are available.
    14    4. "Counseling" means one or more consultations as necessary between a
    15  state licensed psychiatrist  or  psychologist  and  a  patient  for  the
    16  purpose  of determining that the patient has capacity and is not suffer-
    17  ing from a psychiatric or psychological disorder or  depression  causing
    18  impaired judgment.
    19    5.  "Health  care facility" means a general hospital, nursing home, or
    20  residential health care facility  as  defined  in  section  twenty-eight
    21  hundred one of this chapter.
    22    6.  "Health  care  provider" means a person or entity licensed, certi-
    23  fied, or authorized by law to administer health care or dispense medica-
    24  tion in the ordinary course of business or practice of a profession.
    25    7. "Impaired judgment" means that a person lacks the ability to under-
    26  stand and appreciate the nature and consequences of  health  care  deci-
    27  sions,  including  the  benefits  and  risks  of and alternatives to any
    28  proposed health care, and to reach an informed decision.
    29    8. "Medication" means medication capable of ending and to be used with
    30  the intent of ending the patient's life, including any ancillary medica-
    31  tion intended to minimize the patient's discomfort.
    32    9. "Palliative care" means health care treatment, including  interdis-
    33  ciplinary  end-of-life  care,  and consultation with patients and family
    34  members, to prevent or relieve pain and suffering  and  to  enhance  the
    35  patient's quality of life, including hospice care under article forty of
    36  this chapter.
    37    10.  "Patient" means a person who is twenty-one years of age or older,
    38  a resident of New York state, and under the care of a physician.
    39    11. "Physician" means an individual licensed to practice  medicine  in
    40  New York state.
    41    12.  "Terminal  illness  or  condition"  means an illness or condition
    42  which can reasonably be expected  to  cause  death  within  six  months,
    43  whether or not treatment is provided.
    44    §  2899-e. Written request for medication. 1. An adult who has capaci-
    45  ty, is a resident of this state, and has been determined by the  attend-
    46  ing  physician  and, if applicable, consulting physician to be suffering
    47  from a terminal illness or condition, may make a written request for and
    48  consent to self-administer medication for the purpose of ending  his  or
    49  her life in accordance with this article.
    50    2. No person shall qualify under this article solely because of age or
    51  disability.
    52    § 2899-f. Written request signed and witnessed. 1. A request for medi-
    53  cation  under  this article shall be signed and dated by the patient and
    54  witnessed by at least two  individuals  who,  in  the  presence  of  the
    55  patient,  attest  that  to  the  best  of their knowledge and belief the
    56  patient has capacity, is acting voluntarily, and is not being coerced to

        A. 5261--C                          3
 
     1  sign the request. The department may develop  a  suggested  form  for  a
     2  request under this article.
     3    2. One of the witnesses shall be a person who is not:
     4    (a) a relative of the patient by blood, marriage or adoption;
     5    (b)  a  person who at the time the request is signed would be entitled
     6  to any portion of the estate of the patient upon death under any will or
     7  by operation of law; or
     8    (c) an owner, operator or employee of a health care facility where the
     9  patient is receiving treatment or is a resident.
    10    3. The patient's attending physician  or,  if  applicable,  consulting
    11  physician at the time the request is signed shall not be a witness.
    12    §  2899-g.  Attending  physician  responsibilities.  1.  The attending
    13  physician shall:
    14    (a) make the determination of whether a patient has a terminal illness
    15  or condition, has capacity, and has made the request voluntarily;
    16    (b) request that the patient demonstrate New York state residency;
    17    (c) refer the patient for counseling, if  appropriate,  under  section
    18  twenty-eight hundred ninety-nine-h of this article;
    19    (d)  provide  information  and  counseling  under  section twenty-nine
    20  hundred ninety-seven-c of this chapter; and
    21    (e) fulfill the medical record documentation requirements  of  section
    22  twenty-eight hundred ninety-nine-i of this article.
    23    2. Subject to section twenty-eight hundred ninety-nine-h of this arti-
    24  cle,  the  attending  physician  who  makes  the  determination that the
    25  patient has a terminal illness or condition, has capacity and has made a
    26  request for medication as provided in section twenty-eight hundred nine-
    27  ty-nine-e of this article, may personally, or by  direction  to  another
    28  physician,  prescribe,  dispense  or  order  appropriate  medication  in
    29  accordance with the patient's request under this  article,  and  at  the
    30  patient's request, facilitate the filling of the prescription and deliv-
    31  ery of the medication to the patient.
    32    3.  In accordance with the direction of the prescribing, dispensing or
    33  ordering physician and the consent  of  the  patient,  the  patient  may
    34  administer  the  medication to himself or herself. A health care profes-
    35  sional shall not administer the medication to the  patient  but,  acting
    36  within  the  scope  of  his  or  her lawful practice, may facilitate the
    37  patient in self-administering the medication.
    38    § 2899-h. Counseling referral. If in  the  opinion  of  the  attending
    39  physician a patient may be suffering from a psychiatric or psychological
    40  disorder  or  depression causing impaired judgment, such physician shall
    41  refer the patient for counseling. No medication to end a patient's  life
    42  shall  be  prescribed,  dispensed or ordered until the person performing
    43  the counseling determines that the  patient  is  not  suffering  from  a
    44  psychiatric  or  psychological  disorder  or depression causing impaired
    45  judgment and has capacity.
    46    § 2899-i. Medical record  documentation  requirements.  The  following
    47  shall be documented or filed in the patient's medical record:
    48    1.  all  oral  requests  by a patient for medication to end his or her
    49  life;
    50    2. all written requests by a patient for medication to end his or  her
    51  life;
    52    3.  the  attending  physician's  diagnosis and prognosis, and determi-
    53  nation whether the patient has capacity and is acting voluntarily;
    54    4. a report of the outcome and determinations made during  counseling,
    55  if performed; and

        A. 5261--C                          4
 
     1    5.  a  note by the attending physician indicating whether all require-
     2  ments under this article have been met and indicating the steps taken to
     3  carry  out  the  request,  including  a  notation  of   the   medication
     4  prescribed, dispensed or ordered.
     5    §  2899-j. Residency requirement. Only requests made by New York state
     6  residents under the provisions of this article shall be granted. Factors
     7  demonstrating New York state residency shall include but  shall  not  be
     8  limited to:
     9    1. Possession of a New York state driver's license;
    10    2. Registration to vote in New York state;
    11    3. Evidence that the person owns or leases property in New York state;
    12  or
    13    4. Filing of a New York state tax return for the most recent tax year.
    14    §  2899-k.  Protection  of health care providers and facilities.  1. A
    15  physician, pharmacist, other health care professional  or  other  person
    16  shall  not  be  subject  to  civil or criminal liability or professional
    17  disciplinary action, and shall not be subject to discipline, suspension,
    18  loss of license, loss of privileges, or other penalty by any health care
    19  facility or health care provider, for taking any  reasonable  good-faith
    20  action or refusing to act under this article, including: (a) engaging in
    21  discussions with a patient relating to the risks and benefits of end-of-
    22  life  options  in the circumstances described in this article, (b) being
    23  present when a patient self-administers medication, (c) refraining  from
    24  acting  to  prevent the patient from self-administering such medication,
    25  or (d) refraining from acting to resuscitate or rescue the patient after
    26  he or she self-administers such medication. However, paragraphs (c)  and
    27  (d)  of  this  subdivision  shall  not  apply where there are reasonable
    28  grounds to believe,  under  the  circumstances,  that  the  patient  has
    29  rescinded  his  or  her request or consent to self-administer medication
    30  under this article or communicates a desire that the  lethal  action  of
    31  the medication be reversed.
    32    2.  A physician, nurse, pharmacist, or other person shall not be under
    33  any duty, by law or contract, to participate in the provision of medica-
    34  tion to a patient under this article.
    35    3. A private health care facility may prohibit the  self-administering
    36  of  medication  under  the article while the patient is being treated or
    37  residing in the health care facility if:
    38    (a) such prescribing, dispensing, ordering  or  self-administering  is
    39  contrary to a formally adopted policy of such facility that is expressly
    40  based  on  sincerely  held  religious  beliefs  or  sincerely held moral
    41  convictions central to the facility's operating principles;
    42    (b) such facility has informed the patient of such policy prior to  or
    43  upon admission, if reasonably possible; and
    44    (c)  if  the  patient requests, the patient is transferred promptly to
    45  another health care facility that is  reasonably  accessible  under  the
    46  circumstances  and willing to permit the prescribing, dispensing, order-
    47  ing and self-administering of medication under this article with respect
    48  to the patient.
    49    4. A health care facility that  prohibits  the  self-administering  of
    50  medication  under  this  article  while  the patient is being treated or
    51  residing in the health care facility under this section may  prohibit  a
    52  physician  from prescribing, dispensing or ordering medication for self-
    53  administering while the patient is being  treated  or  residing  in  the
    54  health care facility, provided the health care facility has notified the
    55  physician  in  writing  of its policy to prohibit such actions. Notwith-
    56  standing subdivision one of this section,  any  person  who  violates  a

        A. 5261--C                          5
 
     1  policy  established  by a health care facility under this section may be
     2  subject to sanctions otherwise allowable under law, contract and facili-
     3  ty policy.
     4    §  2899-l. Relation to other laws and contracts.  1. (a) A patient who
     5  self-administers medication under this article shall not  be  considered
     6  to  be a person who is suicidal, and self-administering medication under
     7  this article shall not be deemed to be suicide, for any purpose.
     8    (b) Action  taken  in  accordance  with  this  article  shall  not  be
     9  construed  for  any  purpose  to  constitute  suicide, assisted suicide,
    10  attempted suicide, promoting a suicide attempt, mercy killing, or  homi-
    11  cide  under  the  law, including as an accomplice or accessory or other-
    12  wise.
    13    2. A request by a patient to his or her attending physician to provide
    14  medication under this article shall not, by itself,  provide  the  basis
    15  for the appointment of a guardian or conservator.
    16    3.  (a)  No  provision in a contract, will or other agreement, whether
    17  written or oral, to the extent the  provision  would  affect  whether  a
    18  person  may  make  or rescind a request for medication or take any other
    19  action under this article, shall be valid.
    20    (b) No obligation owing under any contract  shall  be  conditioned  or
    21  affected  by the making or rescinding of a request by a person for medi-
    22  cation or taking any other action under this article.
    23    4. A person and his or her beneficiaries shall not be denied  benefits
    24  under  a life insurance policy for actions taken in accordance with this
    25  article.
    26    5. An insurer shall not provide any information in communications made
    27  to a person about the availability  of  medication  under  this  article
    28  absent  a  request  by  such person or by his or her attending physician
    29  upon the request of such person. Any  communication  shall  not  include
    30  both  the  denial of treatment and information as to the availability of
    31  medication under this article.
    32    6. The sale, procurement, or issue  of  any  professional  malpractice
    33  insurance  policy or the rate charged for the policy shall not be condi-
    34  tioned upon or affected by whether the insured does or does not take  or
    35  participate in any action under this article.
    36    §  2899-m.  Safe  disposal of unused medications. The department shall
    37  make regulations providing for the safe disposal of  unused  medications
    38  prescribed, dispensed or ordered under this article.
    39    §  2899-n.  Death  certificate.  In the event that a patient dies as a
    40  result of medication self-administered under  this  article,  the  death
    41  certificate  shall  indicate  that the cause of death was the underlying
    42  terminal illness or condition of the patient. However, where  there  are
    43  reasonable grounds to believe, under the circumstances, that the patient
    44  rescinded  his  or  her request or consent to self-administer medication
    45  under this article or communicated a desire that the  lethal  action  of
    46  the  medication  be reversed, and the patient nevertheless died from the
    47  self-administration of the medication, the  self-administration  of  the
    48  medication may be listed as the cause of death.
    49    § 2899-o. Reporting.  1.  The  commissioner  shall  annually  review a
    50  sample of the records  maintained  under  section  twenty-eight  hundred
    51  ninety-nine-i  of  this  article.  The  department may adopt regulations
    52  establishing reporting requirements for physicians taking  action  under
    53  this  article to determine utilization and compliance with this article.
    54  The information collected under this section shall be  confidential  and
    55  shall be collected in a manner that protects the privacy of the patient,

        A. 5261--C                          6
 
     1  his  or  her  family,  and any health care provider acting in connection
     2  with such patient under this article.
     3    2.  The department shall prepare a report annually containing relevant
     4  data regarding utilization and compliance with this  article  and  shall
     5  post such report on its website.
     6    § 2899-p. Severability. If any provision of this article or any appli-
     7  cation  of  any  provision of this article, is held to be invalid, or to
     8  violate or be inconsistent with any  federal  law  or  regulation,  that
     9  shall not affect the validity or effectiveness of any other provision of
    10  this article, or of any other application of any provision of this arti-
    11  cle,  which  can  be given effect without that provision or application;
    12  and to that end, the provisions and applications  of  this  article  are
    13  severable.
    14    § 3. This act shall take effect immediately.
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